Monday, June 2, 2014

Regulating Aviation Emissions Under the Clean Air Act

Because today's biggest story is the release of a proposal by the U.S. Environmental Protection Agency (EPA) to regulate carbon pollution from existing power plants, this seemed like a good time to remind everyone of the agency's authority to regulate emissions from the aviation sector. Though seldom discussed, the same legislation that authorizes today's proposed rule for power plants, the 1970 Clean Air Act (CAA), authorizes the EPA to regulate aircraft emissions as well. It is under this statutory authority that the EPA, in conjunction with the Federal Aviation Administration (FAA), has issued rules concerning other aircraft emissions, such as nitrogen oxide, necessary to meet ICAO standards. As a result of the Supreme Court's 2007 ruling in Massachusetts v. EPA that carbon is a pollutant under the CAA, it is likely the EPA will eventually have to address carbon emissions from the air transport sector the way it has with surface transportation and power plants.

To be clear, the EPA is unlikely to regulate in this area any time soon. To date, the EPA has used its authority under the CAA to keep U.S. aircraft emissions standards in line with and not more stringent than the international standards adopted through the International Civil Aviation Organization (ICAO). The only mention of aviation emissions in Obama administration's 2013 Climate Action Plan is an expression of support for the development of a comprehensive global approach through ICAO. Aircraft emissions are a relatively small percentage of total U.S. emissions compared to the sectors for which the EPA has been writing rules thus far and are therefore much less of a priority. The EPA is also unlikely to be in a hurry to wrestle with the political and legal problems inherent to regulating aviation emissions, in particular the question of how to apply the rules to foreign aircraft, that have caused the EU such grief. Still, the EPA will eventually have to take some action on carbon emissions from the aviation sector and if the ICAO fails in securing a global agreement, what the EPA does will take on considerably more significance.

Anyone interested in learning more about this subject should read Nathan Richardson's Aviation, Carbon and the Clean Air Act.   

http://lawprofessors.typepad.com/aviation/2014/06/regulating-aviation-emissions-under-the-clean-air-act.html

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