Wednesday, September 9, 2009

New International Emissions Cap for Airlines

There are reports out today that the United Kingdom's Committee on Climate Change will announce that "[d]eveloped countries must ensure greenhouse gas emissions from aviation are no higher than 2005 levels by 2050."  See Fiona Harvey, Cap Airline Emissions, Says Body, Fin. Times, Sept. 9, 2009 (available here); see also Alex Morales, Airline Emissions Should Be Capped at 2005 Levels, Bloomberg, Sept. 9, 2009 (available here).  An agreement on such a cap would be part of the December U.N. climate talks to be held in Copenhagen. 

As it stands, the Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998), designates the International Civil Aviation Organization as the proper international organ for dealing with international aviation emissions.  See id. art. 2(2).  The major public and private international air transport organizations, ICAO and the International Air Transport Association, support a global aviation emissions trading scheme to combat the purported problem.  Such a scheme must be properly designed, consensual, multilateral, and in lock-step with infrastructure enhacements, technological improvements, and research and development into alternative fuels. See ICAO, Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection, available in Assembly Resolutions in Force, ICAO Doc. 9848 (Oct. 4, 2004).  In late 2007, however, the European Community broke ranks with ICAO and has since put in motion a regulation to bring civil aviation into its own emissions trading scheme.  This unilateral action has potentially undermined ICAO's U.N.-designated role in this area. See Gabriel S. Sanchez, European Unilateralism, Nat'l L.J., Mar. 31, 2008 (available here).

What does this latest proposal say about ICAO's status in the area of aviation emissions?  If a new international agreement is brokered outside of ICAO, it would likely deal a terminal blow to the organization's legitimacy in handling this issue.  If the proposed cap is set in place, the airlines themselves will have to devise a way to scale back their emissions without undermining their competitiveness.  2050 is still four decades away; undoubtedly many carriers will hold to the promise of what "green technology" can bring.  Of course, cutting flights and, thus, cutting emissions isn't a problem at the moment.  With a worldwide drop in demand for air transport services, international airlines are simply flying less (8% less in the U.S. this year).  Rising fuel costs will undoubtedly result in higher air fares, thus keeping demand at bay even after the global economy recovers (whenever that is).  Still, governments could do more to help the airlines meet a new cap.  Even if a market-based program like a global ETS for aviation isn't put in place, States could do more to improve their air traffic management systems and therefore curtail wasteful emissions.  They could also take steps to allow crossborder airline mergers and allow the global marketplace to consolidate in proportion to actual consumer demand.  Let the fit survive and thrive.  That way, there will not only be less planes in the sky but less fuel inefficient ones as well.  Or, as has so often been the case with civil aviation, countries can impose further regulatory demands on the industry while still expecting frequent, inexpensive, and widespread service.  At some point--perhaps in 2050, perhaps sooner--this paradoxical approach to the airline industry will prove untenable.  By then it may be too late.

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