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Masks no longer required on Tucson's buses & streetcar

Masks will no longer be required on SunTran buses or Tucson's SunLink streetcar after a federal judge in Florida ruled the CDC should not have implemented a nationwide mandate for face-coverings as bulwark against the spread of COVID-19.

On Monday, U.S. District Judge Kathryn Kimball Mizelle ruled the CDC could not require masks on public transportation and airlines because the government agency responsible for controlling pandemics is limited to regulating sanitation.  In her 59-page ruling, the Trump-appointed judge argued that the word sanitation implies something that is being cleaned, and she argued that masks hold infectious droplets. 

"The Mask Mandate is best understood not as sanitation," Mizelle wrote. "But as an exercise of the CDC's power to conditionally release individuals to travel despite concerns they may spread a communicable disease."

Following Mizelle's ruling, SunTran said it had "been notified that the federal mask requirement is no longer in effect for the public transit industry."

"As a result, Sun Tran, Sun Van, Sun Link and Sun Shuttle employees are not required to enforce mask wearing," said SunTran officials. "Although masks are no longer required, the Centers for Disease Control (CDC) continues to recommend wearing a mask while onboard transit vehicles."

"Please respect those who choose to continue wearing masks," SunTran officials wrote. "Passengers can request a mask at one of our transit center information booths."

Tucson City Attorney Mike Rankin told the Mayor Regina Romero and city council members during their study session Tuesday that following Mizelle's ruling the Federal Transportation Administration and the Transportation Security Administration said the CDC's mask requirement will not be enforced. Rankin said he told City of Tucson’s Department of Transportation and Mobility because of the ruling “no enforceable rule” requires masks on public transit.

"No action or direction from mayor and council is required," Rankin said.

Romero asked if masks could be optional, and Rankin replied that wearing a face-covering would "be encouraged," however, "in the meantime, it is not a requirement that will be enforced."

City Councilman Steve Kozachik asked if city leaders could impose a local order, but Rankin said that the city should wait to see how the federal government would respond to Mizelle's decision. "We need to know a little more," Rankin said, to build a "defensible position" for the city to impose its own rules.

In part, Rankin said that Mizelle ruled that the CDC had failed to give a full explanation why masks were necessary, which he called the "weakest" part of her ruling. "I think that makes it problematic for local governments, until there's further guidance from the CDC," he said.

Mizelle was appointed by President Donald Trump in November 2020, after he lost the election to President Joe Biden. The American Bar Association said that Mizelle was not qualified for her nomination because of a lack of experience, but she was confirmed nonetheless on a party-line vote by Republican senators.

Mizelle ruled that the CDC improperly bypassed the Administrative Procedure Act, which requires a federal agency to accept public comments on a new rule, and rejected the argument that the public health emergency required quicker action.

The decision stems from a lawsuit filed last year by Health Freedom Defense Fund, an Idaho-based advocacy group that has repeatedly challenged COVID 19-related restrictions, along with two women from Florida, who claimed wearing masks on planes aggravated their anxiety.

Kozachik called Mizelle's conclusions "astounding" and "judicial overreach."

Since the pandemic began in early 2020, over 2 million people in Arizona have been infected with COVID-19, and nearly 30,000 people have died. This puts Arizona among one of the top two states for deaths due to the novel coronavirus, just behind Mississippi.

Harvard's T.H. Chan School of Public Health said that face-coverings were "an essential measure" for traveling because while airplanes are often well-ventilated, people remain in close proximity to each other.

"The use of face masks is critically important throughout the air travel process, from entering the airport for departure to leaving the destination airport, because it diminishes the release of infectious particles into the environment," wrote researchers. "Reducing the transmission from the source of infection, or “source control,” provides an important layer of protection against COVID-19 for air travelers."

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Uber and Lyft rescinded their mandates, along with Amtrak. However, New York's Metropolitan Transportation Authority said it would maintain its own mandate.

Romero questioned how the city could impose mask mandates in the future, especially as a way to deal with future variants of COVID-19, including the BA.2 variant, which has increased cases across the U.S.

Rankin said that the city would rely on guidance from the Pima County Health Department, and the CDC. "I think if a scientific basis is explained again by the health agencies that have the authority to do so, that could be the basis for a local regulation," he said.

"One thing I would say is I would expect the federal government and the federal agencies to react quickly to this, in terms of whether to attempt to reissue the rule," Rankin added. He said that the CDC could consider seeking a new law after it goes through a 30-day comment process.  

Unsurprisingly, the Justice Department said Tuesday afternoon that it will likely challenge the judge's ruling. 

The Justice Department and the CDC "disagree with the district court’s decision and will appeal, subject to CDC’s conclusion that the order remains necessary for public health, " said Anthony Coley, a Justice Department spokesman.

"The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health. That is an important authority the Department will continue to work to preserve," Coley said. He added that on April 13 before the court decision, the CDC "explained that the order would remain in effect while it assessed current public health conditions." The CDC, along with the Transportation Security Administration, wanted to extend the mask mandate through May 3 to "facilitate CDC’s assessment."

"If CDC concludes that a mandatory order remains necessary for the public’s health after that assessment, the Department of Justice will appeal the district court’s decision," Coley said.

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Paul Ingram/TucsonSentinel.com

A passenger on a SunTran bus in 2015.

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