Wednesday, July 1, 2009

Emissions Trading and U.S. Aviation

Late last week the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong., by a narrow margin of 219 to 212.  The Act mandates a 17% reduction in carbon dioxide, methane, and other greenhouse gas emissions from their 2005 levels by 2020.  What will be the potential impact on aviation?  According to a story from Air Transport World (available here), the Air Transport Association estimates a $5 billion rise in airline fuel costs in 2012, reaching $10 billion by 2020.  In a statement to House Speaker Nancy Pelosi, the ATA stressed the importance of modernizing the U.S.'s outmoded air traffic management system as the surest means to reduce aviation emissions.  See Letter from James C. May, President and CEO, Air Transp. Assoc., to Nancy Pelosi, Speaker of the House of Rep. (June 25, 2009) (available here).  The ATA also reminded Speaker Pelosi that under the terms of the Kyoto Protocol, the International Civil Aviation Organization has been charged with "com[ing] up with a unifrom global [green house gas] emissions scheme for aviation."  Id.  Therefore, Congress should structure its emissions reduction measures "in a manner that places the regulation of [green house gas] emissions from U.S. aircraft under the global framework ICAO is developing."  Id.

Interestingly, Section 276 of H.R. 2454 contains express language that the U.S. should continue to only work with ICAO, but foreign governments in general, to establish a coherent international framework to address aviation emissions.  The section reads:

It is the sense of Congress that the United States should--

(1) continue to actively promote, within the International Civil Aviation Organization, the development of a global framework for the regulation of greenhouse gas emissions from civil aircraft that recognizes the uniquely international nature of the industry and treats commercial aviation industries in all countries fairly; and

(2) work with foreign governments towards a global agreement that reconciles foreign carbon emissions reduction programs to minimize duplicative requirements and avoids unnecessary complication for the aviation industry, while still achieving the environmental goals.

This is not surprising.  The U.S. in particular was highly critical of the European Community when it absconded from its international commitments in 2007 by entering a reservation to the latest ICAO resolution calling upon "States to refrain from environmental measures that would adversely affect the orderly and sustainable development of civil aviation" and "to continue to cooperate closely with international organizations."  See ICAO, Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection, app. A, Assemb. Res. A36-22 (2007), compiled in Assembly Resolutions in Force, at I-54, ICAO Doc. 9902 (Sept. 28, 2007).  See also id., app. L; but see app. A, at A-1 (noting Portugal's reservation, on behalf of the EC, to the quoted part of the resolution).  Despite continuing protest, the EC is still committed to unilaterally bringing all civil aviation into its emissions trading scheme in 2012.  See Council Directive 2008/101, 2009 O.J. (L 8) 3.  While EC officials have stated that they would exempt American carriers from the scheme should the U.S. implement comparable measures to reduce aviation emissions, it remains unclear whether H.R. 2454 will satisfy.

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