Monday, January 9, 2012
According to an Obama administration official quoted in a Reuters article last week, the administration is considering taking retaliatory measures in response to the EU's imposition of ETS regulations on U.S. carriers. See John Crawley & Andrew Quinn, U.S. Weighs Retaliation Over Europe Aviation Law, Reuters, Jan. 6, 2012 (available here). While more attention has been given to the pending legislation that would prohibit U.S. carriers from complying with the EU scheme, any substantive U.S. response is likely to be carried out by the DOT and Secretary of State, presumably under the authority of International Air Transportation Fair Competitive Practices Act of 1974, currently codified in 49 U.S.C. § 41310. However, that statute applies to discriminatory practices, making its applicability to the EU ETS, which applies equally to all carriers, questionable. Thus, congressional legislation may be a necessary prerequisite to ensure the administration has the proper authority to act before going forward.