"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