House Passes Bill Challenging Application of EU ETS to American Carriers - Will It Fly?

House Passes Bill Challenging Application of EU ETS to American Carriers - Will It Fly?

October 25, 2011 23:58
by J. Wylie Donald

When people bring up new climate change legislation today they aren't seeking to reinvent the Clean Air Act or implement the Kyoto Protocol.  Rather, the goal is to block responses to climate change.

A case in point is a bill that passed the House of Representatives on a voice vote yesterday, H.R. 2594, the European Union Emissions Trading Scheme Prohibition Act of 2011. As its name implies, H.R. 2594 is not about a climate change fix. Instead it is all about getting in the way of a fix. Its operative provision provides:  "The Secretary of Transportation shall prohibit an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilaterally established by the European Union."  We understand about the need for the government to interfere with business activities in rogue states, but this seems somewhat far afield.

Nevertheless, this did not come out of the blue. In 2008 the European Union announced in Directive 2008/101 that all airlines flying in, into or out of European airspace would have to participate in the EU Emissions Trading Scheme. This meant that operators would have to surrender to regulators one "allowance" for every ton of carbon dioxide emitted on such journeys. Failure to obtain the requisite allowances would invoke fines, and the obligation to obtain the allowances would continue.

Following a monitoring and verification period in 2010 and 2011, where baseline emissions were established, the ETS regime is scheduled to take off on January 1, 2012.  Based on their established baselines airlines will be allocated allowances, most of which will be distributed for free. However, to the extent an airline wishes to grow, or new entrants arrive, or efficiency requirements kick in, expenditures will be required. Standard & Poors estimates it could cost over one billion euros in the first year, and between 23 billion and 35 billion euros through 2020.  

Numerous governments and domestic and international aviation officials are lined up attempting to block or divert the European program.  A resolution of the International Civil Aviation Organisation in October 2010, Resolution A37-19, set forth goals and advocated further study and cooperation, but imposed no obligations.  The ICAO asserts that airline carbon dioxide emissions should be left to its self-governance.  The Air Transport Association (and others) filed a lawsuit in 2009 which ultimately ended up at the European Court of Justice asserting that the EU was violating international law.  Specifically, the plaintiffs argued:  "As proposed, the EU ETS provisions would regulate an entire flight from across the United States to the EU, even though the flight would be in EU airspace for only a tiny fraction of the journey, ... If the EU ETS regime implemented an international agreement agreed by third countries, as well as by the EU, we would not be here today. ATA challenges EU ETS because it is a unilateral measure, which has not been agreed by countries outside the EU, yet nevertheless applies EU law to third country carriers in third country airspace."  

In June 2011 the Obama administration demanded that U.S. airlines be exempted from the scheme.  And at the end of September 21 non-EU members of the ICAO issued a declaration at their New Delhi meeting rejecting the EU ETS program.  None of this has availed.  On October 6 an Advocate General of the European Court of Justice rendered her opinion and concluded, among other things:

145. As many of the governments and institutions involved in the proceedings have correctly concluded, Directive 2008/101 does not contain any extraterritorial provisions. The activities of airlines within the airspace of third countries or over the high seas are not made subject to any mandatory provisions of EU law by virtue of this directive. In particular, Directive 2008/101 does not give rise to any kind of obligation on airlines to fly their aircraft on certain routes, to observe specific speed limits or to comply with certain limits on fuel consumption and exhaust gases.

146. Directive 2008/101 is concerned solely with aircraft arrivals at and departures from aerodromes in the European Union, and it is only with regard to such arrivals and departures that any exercise of sovereignty over the airlines occurs: depending on the flight, these airlines have to surrender emission allowances in various amounts, (131) and if they fail to comply there is a threat of penalties, which might even extend to an operating ban.

More succinctly, as set forth in the European Court of Justice's press release:  "EU legislation does not infringe the sovereignty of other States or the freedom of the high seas guaranteed under international law, and is compatible with the relevant international agreements."     

Where is this all headed?  The ECJ itself should render its opinion by early 2012.  Unless it undoes Directive 2008/101, some are predicting a trade war.  Even if everyone grudgingly goes along with participation in the scheme, "carbon leakage" is likely to be a significant factor.  Long-haul flights that now stop in Europe may find it more cost-effective to stop over in the Middle East, which does not impose any charge for carbon dioxide emissions.  And of course, the traveler is likely to see higher fares.

Will H.R. 2594 make any difference?  We think it unlikely.  In a time of budget cuts and market reliance, what is to be gained by establishing another bureaucracy when United Continental, Delta and American Airlines can find gates at Abu Dhabi, Doha and Dubai?

Carbon Emissions | Climate Change Litigation | Regulation

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