Category Archives: Aviation

Aviation emissions deal: ICAO takes one step forward, half step back

ICAO's decision today on aviation emissions offers the prospect of the world's first carbon cap on an entire global sector.

The United Nations agency for aviation today launched a three-year effort to achieve a global market-based measure to cap the climate pollution of international aviation.

After nights of lavish receptions – a testament to the financial robustness of international aviation – delegates finally got down to the hard work of negotiating a resolution on how ICAO will tackle the climate change issue.

The decision by the 191 countries in the International Civil Aviation Organization (ICAO) to develop a measure to limit the emissions of international civil aviation offers the prospect of the world's first carbon cap on an entire global sector.

Last night, we said the proposal – which was adopted around noon today – amounted to “one step forward, half a step back."  Here’s what we meant.

 One step forward, half a step back

The decision by the 38th General Assembly to develop, by 2016, a global market-based measure capping international aviation’s carbon pollution at 2020 levels is a step forward on the path to averting dangerous climate change. If it were a country, aviation would rank in the world’s top ten largest emitters, and it is one of the fastest growing sources of global warming pollution.

With this decision, ICAO has opened a door to the possibility of a future global cap on these emissions and an array of programs – including a market-based measure sought by both the industry and the environmental community – to ensure that the cap is met.

However, a bedrock principle of international law is that nations have the sovereign right to limit pollution emitted in their borders. So, ICAO’s attempt to narrow the ambit for countries to implement their own market-based measures to cap and cut the burgeoning global warming pollution from international aviation pushed it half a step back.

Differences erupt in waning hours

Deep differences between and among countries erupted in the waning hours at the just-concluded Assembly, including disagreements about how and even whether to complete this task.  At several points the meeting seemed destined to disintegrate.

An acrimonious vote on whether countries could bring aviation emissions under their national emissions trading system nearly caused the meeting to disintegrate.

In the end delegates agreed 1) nations should seek the agreement of other nations before imposing their market-based measures on flights from those other nations; and 2) such national market-based measures should exempt flights to and from nations whose flag carriers hold less than 1% share of the global market, measured in “revenue-ton-kilometers.”

Next steps

Remember – this decision is only a first step, but it is an important one because it provides a path forward for a cap on the aviation sector.

Now it’s time to shift to the hard work of designing the global market-based mechanism and getting 191 countries to agree to it.

Intensive efforts will be needed to make ICAO’s promise a reality. It’s not the time to let up, and ICAO can’t be let off the hook.

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Bloomberg-EDF analysis: Mandates plus markets could make airlines' emissions goals readily affordable

The aviation industry can affordably meet and beat its goal of halting carbon emissions growth from 2020 if it uses high-quality, low-cost carbon offsets, according to a new analysis from Environmental Defense Fund (EDF) and Bloomberg New Energy Finance (BNEF).

Airlines’ goal of “carbon-neutral growth from 2020” could be so readily affordable that governments justifiably could hold airlines to a much tighter emissions target. Image source

Our analysis comes on the heels of a consolidated industry call for the governments of the International Civil Aviation Organization (ICAO) to commit, at their next triennial September meeting, to adopt a mandatory global program to limit aviation’s carbon pollution by 2016 at the latest.

While forecasts are inherently uncertain, best estimates indicate that while new technologies, operations and infrastructure can help industry dampen emissions growth, substantial increases in aviation emissions are likely after 2020. Consequently, to meet their proposed mandatory goal of "carbon-neutral growth from 2020," it is very likely that airlines will need some kind of carbon offsetting mechanism.

An offset mechanism that limits credit supply to high-quality carbon units currently available and expected to come on-line in the future, could let airlines meet their emissions target at very modest cost. If governments adopt tough criteria ensuring that offsets represent real reductions in net carbon emissions, and if industry moves swiftly to capture those carbon units, the costs to airlines could be quite low – e.g., less than 0.5% of projected total international airline revenue in 2015, and less than a third of the fees airlines collected last year for checked bags, legroom and snacks.

In the current round of talks, the aviation industry is asking governments to mandate caps on airlines’ emissions at 2020 levels. Our analysis finds that a well-designed, high-integrity carbon offset program would make carbon-neutral growth from 2020 so affordable, that governments justifiably could hold airlines to a much tighter emissions target. That could mean putting back on the table a target the industry had proposed several years ago, namely cutting emissions 50% by 2050.

As my report co-author, Bloomberg New Energy Finance chief economist Guy Turner, said:

These findings show that the international aviation sector can control its CO2 emissions easily and cheaply by using market based mechanisms. The relatively small cost and ability to pass any costs through into ticket prices, should encourage the international aviation sector to accelerate and deepen its emission reduction pledges. More ambitious emission reductions now look much more doable, than mere stabilization from 2020.

Our analysis offers context to the costs of such a global market-based mechanism using offsets with strong environmental integrity, which the aviation industry called on ICAO last month to adopt to keep the industry’s net emissions stable from 2020 on. Such an offset program would allow the airlines to meet their emissions targets by both making emissions cuts within the aviation sector, and drawing on offsets that represent real emission cuts in other sectors.

Blog-exclusive addendum: effect on ticket prices

A well-designed global offset program, using high-quality offsets that represent real reductions in emissions, could add only a few dollars to a typical international fare:

  • From Paris (CDG) to Beijing (PEK): $1.90 – $3.00
  • From Paris (CDG) to Delhi (DEL): $1.50-$2.30
  • From Paris (CDG) to Cape Town (CPT): $2.40-$3.70
  • From Paris (CDG) to Buenos Aires (EZE): $2.70-$4.30
  • From New York (JFK) to Buenos Aires (EZE): $2.10-$3.20

Read more in our press release and the full BNEF-EDF analysis, Carbon-Neutral Growth for Aviation: At What Price?

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U.S. environmental groups echo aviation industry's call for ICAO to adopt global emissions cap this year

Environmental Defense Fund and Natural Resources Defense Council today echoed the new call by the International Air Transport Association (IATA), a trade body comprising 240 airlines worldwide, for governments to agree this September on a single global cap on emissions of international flights to take effect in 2020.

NGOs today echoed IATA's call for an agreement this year on a global cap on aviation emissions. Photo credit: Flickr user Mike Miley

The NGOs issued their call in response to a resolution, adopted today at IATA’s annual general meeting in Cape Town, that urges its member airlines to “strongly encourage governments” to adopt such a single global measure at this year’s International Civil Aviation Organisation (ICAO) Assembly.

The resolution gives governments a set of principles on how governments could 1) establish procedures for a single market-based measure, and 2) integrate a single market-based measure as part of an overall package of measures to achieve the industry's goal of having "carbon-neutral growth by 2020."

In a statement today, Annie Petsonk, EDF's International Counsel, said:

IATA has opened the door, now it is time for governments to walk through it this September. This is the signal that governments have been seeking.

Not all the elements offered in IATA’s resolution will fully address aviation’s contribution to climate change, the NGOs cautioned. Our colleagues at Transport & Environment and Aviation Environment Federation have issued their own comments on the resolution, as has Carbon Market Watch and NRDC's Jake Schmidt.

In advance of IATA’s general meeting in Cape Town, 11 global NGOs sent a letter to IATA Director General Tony Tyler calling on IATA to act on market-based measures. The environment, development, community and science groups said in the letter:

To be credible, such measures must include targets compatible with climate science, strong provisions to ensure the environmental credibility of the traded units, limited access to offsets and strict provisions to ensure compliance.

Aviation is already the world's seventh largest polluter, and if emissions from the industry are left unregulated, they're expected to double by 2030.

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Mind the gap: Airlines can't meet emissions reductions goals without global market-based measure, report finds

Greenhouse gas emissions from airplanes are no small matter: if the aviation industry were a country, it would be the seventh largest emitter of carbon dioxide in the world – and a new report shows us the worst is yet to come.

The report released today out of Manchester Metropolitan University shows international aviation emissions are projected to increase by anywhere from a substantial 50% to a whopping 500%, and that means the aviation industry won’t be able to get anywhere near meeting its own modest commitments to reducing its emissions – unless it adopts a global market-based measure.

The aviation industry has voluntarily committed to achieve no net increase in emissions from 2020 onward and to halve its emissions by 2050 from its 2005 levels through, it says, efficiency improvements including improved air traffic management, on-board technologies and biofuels.

However, the study, from Professor of Atmospheric Science and Director of Centre for Aviation, Transport, and the Environment (CATE) David Lee, Ph.D., shows emissions from the sector are projected to roughly triple, and make it impossible for airlines to meet their own commitments. Even with speculatively optimistic scenarios for such efficiency improvements, Lee found:

 None of the measures, or their combinations, for any growth scenario managed to meet the 2020 carbon-neutral goal, the 2005 stabilization of emissions goal, or the 2005-10% stabilization of emissions goal at 2050.

The maximum reductions over [business-as-usual] technology and operational improvements were clearly achieved by the extension of the existing [market-based measures] out to 2050. (page 22)

This means the aviation industry is now facing a huge gap between emissions it can reduce through efficiency improvements and its goal of carbon neutral growth from 2020.

Just take a look at this telling figure from Lee's report, which shows that even under the most optimistic technological scenarios for improving the efficiency of international aviation, emissions for the years 2006-2050 are expected to increase dramatically:

As Figure A1 from the report shows, even under the most optimistic technological scenarios for improving the efficiency of international aviation, emissions for the years 2006-2050 are expected to increase dramatically. The most aggressive uptake of operational and other technologies as well as biofuels still yields a yawning gap between projected emissions (lower boundary of green shaded area) and the emissions targets on the table, whether those are the targets proposed by governments (horizontal pink lines) or by the industry itself (horizontal grey ladder). Source

So, how can the aviation industry bridge the gap?

Industry spokespeople assert that from 2021, this gap could be filled through a market-based measure. However, the industry also seems to want to delay developing any serious global market-based approach until the gap is looming to be filled.

Lee sees the handwriting on the wall: there is no other way to fill the emissions gap than market-based measures. Our European colleagues at Transport & Environment agree, saying:

The only remaining means to bridge this emissions gap would be to extend market based measures like emissions trading on a global basis.

This measure already has support from EU Climate Commissioner Connie Hedegaard, as well, who said last week in a trip to the United States, that that "we of course want a global, market-based mechanism" for reducing aviation emissions.

The gap will need to be filled, and the time to construct the gap-filling mechanism is now. Lee’s study makes crystal clear the futility of waiting until 2021 to construct the market-based measure, as the airlines have advocated. If airlines simply delay dealing with the issue until 2021, when demand for gap-fillers takes off, they risk substantially higher prices for filling those gaps. And in an industry famous for its thin profit margins, delay – and its attendant higher costs – really isn’t a welcome option.

Airlines that want the flexibility to determine how best to meet the gap – for example, those that want to begin saving emissions now, in order to draw on those reductions for the future – ought to throw their weight behind the development of a global market-based mechanism in the International Civil Aviation Organization (ICAO).

Airlines, countries — including the United States – and environmental groups have all agreed aviation emissions should be addressed in ICAO, so we’ll be looking to the Administration to reach a global agreement, and to reach it quickly.

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Obama's bill signing puts spotlight on ICAO and on whether U.S. will drive agreement to cut aviation pollution

President Barack Obama yesterday signed into law Senate bill 1956, the European Union Emissions Trading Scheme Prohibition Act of 2011. The new law, as we've covered before, authorizes — but does not require — the Secretary of Transportation to prohibit airlines from participating in the European Union's anti-pollution law.

If it were ranked as a country, the aviation sector would be the world’s 7th largest source of greenhouse gas pollution. Pollution from aviation is rising 3 to 4 percent per year. Image source

In a statement after the signing, the White House said:

The Obama administration is firmly committed to reducing harmful carbon pollution from civil aviation both domestically and internationally …

The Administration remains focused on making progress in reducing aviation emissions through the appropriate multilateral forum – the International Civil Aviation Organization (ICAO) — and we welcome the recent progress there in establishing a new High Level Group charged with accelerating negotiations on a basket of measures that all countries can adopt at the next ICAO Assembly meeting in September 2013 to reduce greenhouse gas (GHG) emissions from aviation.

EDF and leading environmental groups WWF, Earthjustice, and Natural Resources Defense Council said in a joint statement "now is the perfect time to make a global deal happen," and underscored their "readiness to work with all stakeholders to get the job done."

Responding to the bill's passage and signing just weeks after Europe "'stop[ped] the clock' on the implementation of the international aspects of its ETS aviation" to facilitate international discussions, EDF's international counsel Annie Petsonk said:

Unlike the bill that passed here in the U.S., Europe’s stop-the-clock on its law aims to ‘create a positive atmosphere’ for the international talks.Now the spotlight is on ICAO, and on whether the U.S. will step forward with the real leadership needed to drive agreement on an ICAO program to cut aviation’s carbon pollution.

The background section of our joint statement has a good summary of the EU law, progress in ICAO and S.1956:

Background:

Aviation is a significant source of global warming pollution and is one of the fastest-growing sources of greenhouse gas emissions if left uncontrolled.  If it were ranked as a country, the aviation sector would be the world’s 7th largest source of this pollution, which is rising 3 to 4 percent per year.

Europe’s Aviation Directive, which includes aviation within Europe’s economy-wide Emissions Trading System (EU ETS) from January 2012, is a pioneering law that holds airlines accountable for emissions associated with commercial flights that land at or take off from EU airports.  The program is projected to reduce carbon pollution equivalent to that produced by 30 million cars by 2020.

On November 9, the 36-nation Council of the International Civil Aviation Organization (ICAO) decided to form a high-level advisory group to provide guidance on crafting an international program to reduce emissions from aviation, with the aim to adopt an agreement at their next triennial Assembly in September-October 2013. In response, the European Union announced it would stop the clock for one year on the implementation of its law capping the carbon emissions of international flights landing and taking off from European airports.

The preceding developments render irrelevant S. 1956, U.S. legislation signed today authorizing the U.S. Secretary of Transportation to prohibit U.S. airlines from taking part in the European emissions program.  If the Secretary of Transportation were to implement the prohibition outlined in the bill, it would require unlawful behavior on the part of U.S. airlines and would risk igniting a trade war with the European Union. However, the bill also puts the U.S. government on record supporting efforts to secure an international approach to reduce aviation’s global warming pollution.

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U.S. House passes superfluous bill, EDF calls on airlines to help find global approach to reduce aviation emissions

The U.S. House of Representatives tonight passed a bill that authorizes the Secretary of Transportation to prohibit airlines from participating in the European Union's anti-pollution law. EDF called the bill superfluous — the EU yesterday paused its carbon pollution law that was the target of the U.S. bill — and warned it sets a bad precedent for U.S. foreign relations.

The European Union Emissions Trading Scheme Prohibition Act of 2011 at best is superfluous, and at worst undermines respect nations need to have for each other's laws, EDF's Annie Petsonk said after the House passed the bill. Photo credit

The EU paused its law following the International Civil Aviation Organization's (ICAO) setting in motion a high-level political process aimed at agreeing on a global program for cutting aviation carbon pollution by October 2013.

EDF’s International Counsel Annie Petsonk said in EDF's statement in the House:

Now that ICAO has moved into high gear its effort to get a global system for limiting aviation’s carbon pollution, and the EU has stopped its clock pending the ICAO outcome, at best this bill is simply superfluous. At worst, it undermines the respect that nations need to have for each other’s laws in a globalizing world.

President Obama signaled in his reelection acceptance speech that there is an opportunity for revitalized executive branch leadership on the challenge of climate change.

The aviation question, one of the first climate issues after the elections, puts the spotlight on the White House, which will need to put significant political muscle into helping ICAO reach agreement on a worldwide approach to address aircraft emissions.

The airlines who lobbied so hard for enactment of this bill should join with environmentalists in agreeing on that global approach.

The European Union Emissions Trading Scheme Prohibition Act of 2011 gives the Secretary of Transportation authority to prohibit U.S. airlines from complying with a European law requiring airplanes that land or take off from European airports to account for and limit their flights’ global warming pollution through an emissions trading system.

The bill also requires the Secretary of Transportation to hold the airlines "harmless" of any costs, including both the costs of complying with the European law, estimated to be trivial, and the costs of not complying. The “hold harmless” provisions could launch a wholly unnecessary trade war and stick U.S. taxpayers with up to $22 billion in non-compliance costs.

Before the bill came to the House floor tonight, Petsonk talked to POLITICO, which reported:

Petsonk has long been predicting ICAO would be confronted with the decision, likening the process to past global environmental law cases that began with bilateral bickering but eventually spawned a global dialogue. That means the U.S. should not yet be patting itself on the back about forcing the EU’s hand.

“The EU didn’t say, ‘We’re ending the system.’ They said, ‘We’re giving the ICAO process time’” to work on the issue, Petsonk said.

That means congressional action on a bill that has been in a recess-induced lull for weeks is likely to pass Congress just days after the real progress was made internationally. “It’s like a Fifth of July firecracker,” Petsonk said of the bill.

Aviation is already the world's seventh largest polluter, and if emissions from the industry are left unregulated, they're expected to quadruple by 2050.

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Senate-passed bill puts pressure on U.S. Administration, ICAO to limit aviation emissions

I want to tell you what happened over the weekend while no one was looking.

The U.S. Senate passed a bill early Saturday that gives the Administration unheard-of authority to ban U.S. companies from complying with another country’s law. (Photo credit: Flickr user WallyG)

At a few minutes before 2 a.m. on Saturday, just after the U.S. Senate wrapped up its wrangling over the latest funding resolution, a rather extraordinary bill was passed by the Senate.

If the bill is enacted, it would appear to be the first time in our nation's history that Congress has given sweeping authority to a cabinet member to prohibit U.S. companies from complying with the duly enacted law of another nation – and on top of that, to bail out firms that do comply or that get hit with penalties if they don't.

There are only a very few instances in America's recent history in which Congress has prohibited U.S. companies from complying with the laws of other nations. The purpose of those laws is to prevent U.S. firms from being used to implement policies of other nations that run counter to U.S. policy; they include the prohibitions on doing business in South Africa during the period of apartheid, and the anti-boycott laws, which prohibit U.S. firms from furthering boycotts of one country by another, and nowadays cover the Arab League boycott of Israel.

So, what action by a foreign nation was so odious that the Senate found it necessary to give a Cabinet secretary authority to prohibit U.S. firms from complying with it – and to bail U.S. firms out of any costs they might incur from it?

The bill that got through the Senate Saturday morning gives the Secretary of Transportation authority to prohibit U.S. airlines from complying with a European law requiring airplanes that land or take off from European airports to account for and limit their flights’ global warming pollution through an emissions trading system.

The bill also requires the Secretary of Transportation to hold the airlines "harmless" – meaning bail them out – of any costs, including both the costs of complying with the European law, estimated to be trivial, and the costs of not complying (the latter could be steep).

Aviation is already the world's seventh largest polluter, and if emissions from the industry are left unregulated, they're expected to quadruple by 2050.

With the passage of the Senate bill, the spotlight now zooms onto the Administration, in particular the Secretary of Transportation, and the talks at the International Civil Aviation Organization (ICAO) to reach a global agreement to limit aviation emissions — and to reach it quickly. 

Below are some questions we have received on this bill, and my responses.

What is it in the European law that runs so counter to U.S. policy that it justifies this drastic action?

The airlines argue that the law violates U.S. sovereignty because the law holds airlines accountable for the entire pollution of the flights – even pollution occurring in the airspace over the sovereign territory of the United States.

But the fact that the European law applies to the entirety of the flight cannot be the reason it is counter to U.S. policy.

In fact, it's expressly the policy of the United States to apply our laws to a whole host of issues through the entirety of flights coming in and out of the U.S. – including portions of flights wholly over foreign sovereign territory.  U.S. laws governing everything from security screening, to banning liquids and gels, to barring gambling apply to flights landing and taking off from U.S. airports, including the portions of the flights occurring in and over foreign lands.

Could the reason the European law is so counter to U.S. policy be that, as the U.S. airlines allege, it's a tax?

The law does require flights landing or taking off from European airports to hold sufficient pollution allowances to cover the amount of pollution coming out of the backs of their engines, and if they don't have enough allowances, they can buy them from European governments.

But it can't be that flight taxes per se are objectionable to the U.S. government. After all, Congress makes every traveler coming in and out of the United States pay a $16.70 international departure and arrival tax.

The aviation industry is world's seventh largest polluter. With the passage of the Senate bill, the spotlight now zooms onto the Administration, in particular the Secretary of Transportation, and the talks at the International Civil Aviation Organization (ICAO) to reach a global agreement to limit aviation emissions– and to reach it quickly.

And as courts have already found, the EU law isn't actually a tax:  if the airlines don't want to, they don't have to send a cent to European government coffers. They can simply fly more efficiently.  And if they don't want to do that, they can buy and sell pollution credits in the global marketplace without ever paying European governments a dime – and maybe even make money in the process.

In the run-up to the passage of the airline pollution bailout bill, a few changes were made that tell the Secretary of Transportation, if he does ban the airlines from complying with the European law, to reconsider his ban if the Europeans amend their law, or if an international agreement is reached to address this pollution, or if the U.S. adopts a regulation (which could take years).

The international agreement provision is the interesting part – it puts pressure on the International Civil Aviation Organization (ICAO) to amp up its action on climate change and agree on a global program at its next triennial Assembly in 2013.

But other parts of the bill – including those that bail the airlines out of any costs of complying – or not complying – with the law, remain.

Minor changes to the bill ensure that those costs won't be paid out of the airlines' taxpayer-funded trust fund, but taxpayers could still be on the hook if the airlines win a court judgment that the Secretary is required to hold them harmless, as the bill requires, so that the monies come from the taxpayer-funded Judgment Fund, a part of the U.S. Treasury used to satisfy court judgments against the United States.

What if the Secretary invokes his authority under a little-known airline competitiveness law that allows him to impose retaliatory penalties against airlines from countries that the Secretary finds are treating U.S. airlines “unreasonably”?

And what if the Secretary uses that authority to hold U.S. airlines harmless from the European law by dunning Lufthansa, British Airways, and other European airlines for the U.S. airlines’ compliance or non-compliance costs?

Those companies would likely protest in court. But if the Secretary's cost-dunning order were upheld, Europe could retaliate under its own airline competitiveness law and impose retaliatory fees on U.S. airlines.

Then you have a full-scale trade war. And since U.S. airlines have both code-share and revenue-share agreements with European carriers, a trade war on this issue amounts to shooting themselves in the wing.

What happens next?

A similar bill has already passed the House of Representatives, but because the bills have some differences, the House will have to take it up again when Congress reconvenes after the November elections.

Could it be that the part of the bill that's antithetical to U.S. policy is really the fact that the  European law addresses climate change?

Maybe that's the case for the U.S. Congress at this sad juncture in our nation's history.

But is it also the case that the Obama Administration is so opposed to climate action that after 15 years of fruitless international efforts to curb aviation's global warming pollution, the Administration would stand in the way of other nations' efforts to address that pollution?

We don’t believe so. And if the bill passes, we and others will certainly be encouraging the Administration to find that it is in our public interest lies in striking a real deal in ICAO, rather than turning U.S. airlines into scofflaws at taxpayer – or the flying public’s – expense.

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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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Senate committee approves short-sighted bill that could jeopardize action on airplane pollution

The U.S. Senate Commerce Committee today passed a bill that would allow the secretary of transportation  to ban airlines from complying with the only program in the world that sets enforceable limits on carbon pollution from aviation.

The U.S. Senate Commerce Committee voted in favor of a bill that would allow the transportation secretary to block airlines from complying with Europe's anti-pollution law for aviation.

The Senate bill (S.1956) would give the transportation secretary the authority to prohibit airlines from participating in the EU Emissions Trading System, if, after taking into account many different considerations, he determines that it is in the public interest to do so. Unlike the bill passed last year in the House of Representatives, this bill does not automatically prohibit U.S. airlines from participating in the EU system.

Countries, including the United States, along with airlines and environmental groups all agree aviation emissions should be addressed at the international level, through the International Civil Aviation Organization (ICAO).

However, countries have spent a decade and a half at the UN agency discussing — and failing to agree on — a program to cut carbon pollution.

EDF's International Counsel Annie Petsonk said in a statement after the vote today this Senate bill doesn't get the United States any closer to such a solution, and urged the Obama administration to step up its pressure on ICAO.

Passage of this disappointing and short-sighted bill today seems only to decrease the odds of action at the international level by calling into question the status of the one lever that actually moved ICAO to have serious discussions after 15 years of inaction – the EU Emissions Trading System.

This bill now ups the pressure on the Obama administration to produce a solution at ICAO. We are happy to see the text at least encouraged international negotiations at ICAO, which we believe hold the key to a global agreement to reduce aviation emissions.

Petsonk also said that only a couple times in history has U.S. legislation blocked companies from obeying another country's law.

Legislation that blocks American companies from obeying the laws of the countries in which they do business is almost unprecedented in U.S. history, showing up most recently when Congress barred American firms from suborning apartheid in South Africa.

How disconcerting that airlines, which are spending significant funds touting their environmental friendliness, are acting as though an anti-pollution law is as grievous as a massive human rights violation.

Amendment

An amendment to the bill says the secretary of transportation, the Federal Aviation Administration (FAA) administrator and other government officials:

should, as appropriate, use their authority to conduct international negotiations, including using their authority to conduct international negotiations to pursue a worldwide approach to address aircraft emissions;

Expressing skepticism of that "authority to conduct international negotiations to pursue a worldwide approach to address aircraft emissions," Petsonk told Reuters:

We've been in hot pursuit of this (an ICAO framework) for 15 years, so what makes the Senate think this is any different?

Up next, the bill's proponents will seek its quick passage on the Senate floor, either as a stand-alone bill or as an amendment to other legislation. Whether they succeed remains to be seen.

See also: Annie Petsonk's blog, Will Washington meeting on aviation pollution be undermined by U.S. airlines?

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