Monthly Archives: August 2012

Lawsuit against EU airline pollution law would undercut U.S. goal of limiting aviation emissions

In the continuing war by U.S. airlines against Europe’s climate pollution law, last week the klieg lights were focused on the companies’ unsuccessful attempt to ram through the U.S. Senate a bill barring the airlines from complying with the EU law. (A 17-country meeting called by U.S. climate envoy Todd Stern to try to bridge differences between China and the United States on addressing aviation pollution also got some attention.)

Airlines are pushing the U.S. to bring an "Article 84" lawsuit that would be counterproductive to the administration's goal of international action on reducing aviation emissions. Above: ICAO world headquarters. (Photo credit: Wikimedia Commons)

But behind the scenes, the airlines launched a different line of attack, badgering the U.S. administration to file an international legal case arguing that Europe’s program is illegal under international law.

The EU law that’s got the aviation industry so riled up is the only program in the world that sets enforceable limits on carbon pollution from aviation. That pollution is set to quadruple from 2005 levels by 2050 if left unregulated.

The industry is demanding that the U.S. government bring the case under Article 84 of the Chicago Convention on Civil Aviation, and adjudicate it in the International Civil Aviation Organization (ICAO), in Montreal, Canada.

But the airlines have already tried the lawsuit tactic before, and they lost. After two years of court argument, a panel of thirteen judges on Europe’s equivalent to the U.S. Supreme Court held that the program was fully consistent with international law.

Other courts are highly likely to defer to the opinion of these highly respected international jurists. It looks like what the airlines want to do is press the administration to use taxpayer money to litigate a case that the airlines’ own attorneys already lost.

That kind of lawsuit would be decidedly counterproductive if the administration’s real goal is – as it has repeatedly stated – to get action in ICAO on limiting greenhouse gas emissions from aviation.

Article 84 is a protracted process – it can grind on for years. While that might be good for lawyers, it would divert the time and energies of the ICAO secretariat and the national delegates to ICAO. The delegates and staff would have to deal with the litigation instead of solving the tough technical problems and bridging the deep political differences needed in order to get a strong agreement in ICAO on cutting aviation pollution.

There’s also a possible legal conundrum in the Article 84 process that could prevent the case from being heard even if it were filed. ICAO’s Rules for the Settlement of Differences, Chap. III, Art. 6. says that cases shall be heard by

five individuals who shall be Representatives on the Council of Member States  not concerned in the disagreement.

What that legalese means in English is that, under the rules of Article 84, five members of the 36-member ICAO Council sit as judge and jury when one country brings a complaint against another – but under those same rules, any country that is a party to the dispute cannot have its representative participate in deciding the case.

Since all the EU countries are parties to the dispute and since all but three of the ICAO Council Member States signed the New Delhi and Moscow declarations opposing the EU law and thus are also “concerned in the disagreement” by virtue of having taken a position on the issues in the case, only three countries – Burkina Faso, Morocco, and Swaziland – would be left to adjudicate the case. That’s short of the five impartial states needed under the rules.

Trying to use Article 84 to deal with the differences between countries in ICAO over how to limit aviation pollution is really beyond the scope of the Article, since it was designed to address disputes between two countries, not broad policy disagreements among large groups of countries.

We think rather than plotting how to slow down an already leaden process, the better path would be for the U.S. to accelerate and broaden the discussions that the State Department and Department of Transportation convened last week, and get down to creative solutions for cutting the pollution that’s heating up the planet.

Related: see a letter EDF and other environmental groups sent today to President Obama urging him and his administration not to file an Article 84.

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Obama urged to resist aviation industry calls for blocking airline pollution law

Leading U.S. environmental groups today sent a letter to President Obama urging him to resist the aviation industry’s calls to block a European law that limits pollution from aviation.

Environmental groups called on President Obama today to lead a global effort to "craft a meaningful global approach on aviation carbon pollution."  (White House photo credit: Flickr user LollyKnit)

The European law is the only program in the world that sets enforceable limits on carbon emissions from aviation; that pollution is growing so quickly, it's projected to quadruple from 2005 levels by 2050 if left unregulated.

But the aviation industry has been calling for the U.S. government to block the law by bringing a so-called “Article 84” international legal case in the International Civil Aviation Organization (ICAO).

The letter, signed by 15 environmental groups and the U.S. Climate Action Network, which represents more than 80 U.S. environmental groups and millions of members, said filing such a formal proceeding to block the law

would be highly inconsistent with your Administration’s efforts to reduce carbon pollution from other sources, and would undermine your Administration’s stated goal of achieving an agreed framework in ICAO to limit global warming pollution from international aviation …

[C]alls for such a proceeding must be viewed for what they truly are: not an effort to improve ICAO’s odds of achieving a global solution, but rather a means of reducing the likelihood that ICAO takes meaningful action on carbon pollution from international aviation – while simultaneously obviating the world’s only program that is now actually doing so. In short, an Article 84 proceeding is at base a transparent effort to allow airlines to evade responsibility for their carbon pollution in perpetuity …

[Y]our Administration should lead the effort in ICAO to craft a meaningful global approach on aviation carbon pollution, working together with airlines and civil society.

CEOs from the following groups signed the letter: 350.org; Center for Biological Diversity; Climate Protection Campaign; Climate Solutions; Earthjustice; Environmental Defense Fund; Environment America; Environment Northeast; Greenpeace USA; Interfaith Power & Light; League of Conservation Voters; Natural Resources Defense Council; Oxfam America; Sierra Club; US Climate Action Network; and World Wildlife Fund US.

View the letter from environmental groups to the president.

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