EU High Court Upholds Law Limiting Global Warming Pollution from Aviation

by Rebecca Lefton

A cap on airline emissions is legal. That’s according to the European Court of Justice’s Advocate General Juliane Kokott in an opinion issued yesterday.

Beginning in January 2012, airlines landing in the European Union will begin paying for carbon emissions above a set cap under an EU directive. But that cap has faced legal resistance from international air carriers.

American Airlines, Continental Airlines, and United Airlines (Continental and United have since merged) and the Air Transport Association of America (ATA) filed legal suit against the law in December 2009. The case was referred to the European High Court of Justice and following a hearing on July 5, and yesterday’s opinion indicates that the US airline industry should expect to comply with the law.

“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,” said Advocate General Kokott.

This decision is not binding but Advocate General opinions are usually indicative of the final ruling, which is expected early next year.

The European Union Emissions Trading System (ETS) requires a 3 percent reduction in global warming emissions from 2004-2006 levels in 2013 and 5 percent by 2020. Unchecked, global warming pollution from aviation will quadruple, accounting for one-fifth of the total budget for a safe increase in global emissions in 2050. The EU ETS program can achieve more than 70 million tons of carbon dioxide reductions annually in 2020.

Less than a week ago the U.S. signed a declaration opposing the EU ETS calling it “inconsistent with applicable international law” at a meeting hosted by the Indian Ministry of Civil Aviation. The US joined 20 other countries in opposition to the EU ETS: Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, India, Japan, Republic of Korea, Malaysia, Mexico, Nigeria, Paraguay, Qatar, Russian Federation, Saudi Arabia, Singapore, South Africa, and the United Arab Emirates. Chile and Cuba are exempt from the EU ETS because they fall under de minimis provisions that applies to airlines with 2 flights or less a day or less than 10,0000 tons of carbon emissions annually.

Canada, Peru, Philippines, Turkey, and Thailand were also present at the meeting but did not sign on to the declaration. Peru does not have any commercial flights to the EU and Philippines falls under the de minimis provisions.

Concurrent with the India meeting, the EU Commission said the EU ETS aviation provision is compatible and consistent with the International Civil Air Organization’s (ICAO) approach in a presentation to ICAO Council. ICAO allows for the incorporation of aviation into a state’s existing emissions trading system. The EU also reiterated its commitment to working within ICAO for a global agreement on global warming emissions from the aviation sector.

The US aviation industry has voiced its support for a global measure for reducing greenhouse gases from flights. Alternatively, the US could develop a domestic program to address aviation emissions. The EU ETS includes a clause that waives the compliance of flights from countries with an “equivalent measure.”

Rebecca Lefton is a policy analyst on the International Climate team at the Center for American Progress

13 Responses to EU High Court Upholds Law Limiting Global Warming Pollution from Aviation

  1. Sasparilla says:

    Nice to see this trending to being upheld in Europe (and not be taken apart by U.S. special interests) – goodness knows nothing like this kind of restriction is going to happen in the U.S. in the foreseeable future.

    You see climate change regulations taking hold in other countries (Europe really) and it becomes painfully obvious how the U.S. is falling behind (maybe running away behind is a better term) – rather sad to look at.

  2. David says:

    So what are the details of this law? What emissions do the airlines have to pay for? If a U.S. carrier has flights from LA to Hawaii and flights from New York to the EU, do they have to pay for just the emissions from the NY-EU flights, or do they have to pay for the LA-Hawaii flights too? For the NY-EU flights, does it include all emissions along the route, or just the emissions once EU airspace is entered? What if someone takes a flight from NY to somewhere in Africa first, then takes another flight from there to the EU? Do the emissions from NY to Africa count?

  3. Dan says:

    My understanding is that it applies only to the specific flights going in and out of Europe. If an airline that flies to Europe also has flights going from LA to Hawaii, then those flights are not subject to any emissions levy. As well, the levy (in the form of purchasing permits in the EU ETS) is based on the entire flight into and out of Europe. For example, the financial burden would be greater for a flight from Berlin to Beijing than a flight from Berlin to Moscow.

  4. This is fantastic news. The global aviation industry pumps out more climate pollution than 178 of the world’s nations. In fact there are 110 nations that *combined* emit less climate pollution. If jet-setting were a nation it would be the #6 dirtiest when it comes to climate spew.

    Amazingly no nation is responsible so far for even reporting their jet-setting emissions, no less having to pay for them.

    The international body in charge of aviation’s pollution is the ICAO. It has had 20 years to come up with a plan to put the brakes on jet-setting’s climate pollution. So far nothing but voluntary measures. The result is one of the fastest growing sources of climate pollution on the planet.

    The average transportation footprint for the EU (not counting flying) is about 1.2 tonnes CO2 per year per person. And that is far too high for a stable climate. A single vacation flight can be 10 to 20 tonnes per person.

    Jet setting is our personal tar sands and coal burning. It is way past unethical that it isn’t counted or pollution priced yet.

    EU are heroes on this one

  5. Also this recent poll might help explain why EU is able to finally put climate pricing on the oversized — yet uncounted so far — climate pollution from jet-setting:

    Seems Europeans rank climate change threat above even the global economic crisis…with one out of five europeans listing it as the single biggest threat to humanity. Support for strong climate change action has grown. Large majorities across the board want more to be done and see action on climate change as being beneficial to jobs and the economy.

    Compare that to USA and Canada where climate denial runs rampant and Obama who won’t even mention climate change.

  6. The only nation in the world that has tried to model what it would take to just get aviation climate pollution flatline at current levels is the UK.

    Their government panel discovered that aviation could still increase the number of passenger miles 60% by 2050 without increasing total climate pollution. However the industry is planning 250% growth by then on pollution-as-usual biz model they have been flying with.

    To get to “just” 60% growth, the government panel decided would require a series of demand-reduction policies that include:

    1) forbidding expansion of any airport in UK except for one more runway at each of the three biggest airports.

    2) a carbon price on jet fuels rising to over $100/tonne

    3) big push into rail improvements

    4) big push into video conferencing

    So there it is. Global jet-setting industry could grow and still stop their run-away climate pollution. They just don’t want to. They want to be able to pollute for free and to expand at will regardless of the climate costs.

    And now the EU wants this sector, the biggest polluters not covered by carbon caps, to do their fair share. And USA (under Obama) is suing them and threatening retaliation.

    Just how immoral are we going to be as a nation when it comes to stopping our climate damage?

  7. The term “Global aviation” hides the reality that just 12 nations produce two thirds of aviation climate pollution. The top two dozen nations produce 85%.

    The other 160 nations produce the other 15%.

    Number one, of course, is USA with 15%. So USA produces as much jet-setting climate pollution as those 160 nations combined. It is a proud moment for Obama to be suing the EU over trying to get us to take a wee bit of responsibility for our damage.

  8. On jet-setting climate pollution:

    EU = hero
    Obama = zero

  9. Jeff Gazzard says:

    Let’s be frank – ALL the world’s airlines HAVE already registered (a handful “under protest” admittedly) for free allowances within the scope of the EU ETS aviation regulations; they have also invested in all the necessary monitoring and verification software to participate; most are already operating in the carbon market through both in-house and external systems, advisors and traders; and all the airlines of the 26 states who signed up to this pretty meaningless declaration have done so too without exception.

    One or two airlines have already been fined by EU member state’s regulators for missing deadlines in the run-up to the ETS January 2012 start date, so perhaps now is a good time to remind airlines of the heavyweight, some might say draconian, financial penalties for any future non-compliance which could potentially bankrupt even the world’s largest airlines.

    We know that airlines are very aware of these penalties and many of them have said publicly that they do not intend to break any ETS-related laws at several meetings and events I have attended, although they oppose the scheme.

    There is a substantial degree of desperate last-minute posturing and grandstanding to try and avoid practical and fair market-based environment protection solutions from countries who should know better – the recent presentation to ICAO in Montreal from the EC’s Artur Runge-Metzger, International and Climate Strategy Director, easily found on the web, is a welcome and very clear explanation of where are right now and why the EU ETS is a fair and equitable policy.

    Using this scheme as the global model is the way forward. The 26 states trying to avoid the fairly “light touch” ETS regulation in this latest bit of institutionalised moaning, are misguided and out-of-touch with the reality of the urgent need for action to control and reduce the climate change impacts of civil aviation.

    Which is all the more difficult to understand when many are in the frontline of the fight against climate change right now.

    The EU is not going to capitulate and has the support of environment NGO’s everywhere – covering around a third of aviation’s global CO2 emissions is a stunning achievement and needs support and expansion, not arrogant whingeing from the industry’s flat earthers. If you can afford the price of a ticket, you can afford the cost of carbon.

    Jeff Gazzard
    Aviation Environment Federation

  10. Your headline is slightly misleading. The Court has not decided yet. The judges can decide differently than the Advocate General’s opinion, though in most cases they don’t.

    Climate Change Commissioner Connie Hedegaard recently commented on the issue and pointed out that a single flight from Paris to Beijing would only cause 1.50 Euro of carbon costs for an airline per passenger, since the airlines only have to pay for 15% of their emissions under the Directive.

    The opinion is available at the Eur-Lex database website. It is rather long, but I noted especially that the airlines actually tried to rely on the Kyoto Protocol of all things to attack this legislation. Advocate General Kokott noted in the opinion on that:

    “83. All of this militates against the assumption that individuals can rely on the Kyoto Protocol before the courts, especially if they come from States that have not ratified this protocol.”

  11. Paul Magnus says:

    By signing up to reducing your non-essential flying you make a big impact on emissions reduction in multiple ways.
    >Your emissions are substantially reduce.
    >Your resolution highlights and focus the urgency of the issue and the sort of effort that will be required to address the problem with your peers.
    >You reenforce and provide suport
    to consolidate action in tackling global warming.

  12. Great comment. Thanks.

    “If you can afford the price of a ticket, you can afford the cost of carbon.” Word.

    There is lots of coverage of the “other 99%” (aka Occupy Wall Street) in the news right now. Well let’s just take a step back and think about all of humanity. Only the global wealthiest 10% are rich enough to fly. Most of humanity will never set foot on a jet, *ever*.

    It boggles my mind that even most climate hawks I know ignore the do-nothingism of global aviation corporations. And while climate hawks call out the Obama administration for many climate mis-steps somehow Obama’s suing to prevent aviation from finally paying a very wee bit for their carbon pollution is ignored. Where is the outrage? Let’s see, so far this story has a total of 3 facebook “likes”.


  13. The link in the post above is to the press release on the opinion. If anyone wants to read the opinion itself (which is much more detailed), it is available at:

    The original reference to the Court of Justice of the European Union (from a UK court where the proceedings were commenced) is available at