As part of our continuing coverage, yesterday the European Union Court of Justice held that the European Union has the right to “permit a commercial activity, in this instance air transport, to be carried out in its territory only on condition that operators comply with the criteria that have been established by the EU.” (Air Transport Association of America v. Secretary of State for Energy and Climate Change) This judgment in effect forces international operators to comply with the European Union Emissions Trading Scheme (“EU-ETS”) provisions to cut carbon emissions on flights to the EU. The EU-ETS takes effect on January 1, 2012.
Whereas, the EU welcomed the ruling as a step forward in reducing emissions in the global aviation industry, representatives of U.S. and international carriers, as well as business operators, have criticized the ruling and the unilateral nature of the EU-ETS. According to National Business Aviation Association (“NBAA”) president and CEO Ed Bolen, “The court’s ruling goes against established policy and long-standing practice when it come to aviation regulations. It appears to set aside the principle, established in the Chicago Convention, that because aviation is a global industry, aviation policies should be developed and implemented on a global basis. Any new standards should be developed by the International Civil Aviation Organization (“ICAO”).” The International Air Transport Association and other international aviation industry representatives have also taken the position that airline emissions should be addressed through ICAO. ICAO itself issued a statement on behalf of 26 of its member states urging the EU not to include flights by non-EU operators in the EU-ETS.
Another important aspect to this development is the response from the U.S. government itself. As noted in previous posts, the House of Representatives has already passed a bill which excludes U.S carriers from participating in the EU-ETS, and a similar bill has been presented to the Senate for approval. Further, in a December 16th letter addressed to the EU, Secretary of State Hillary Clinton expressed the United States’ escalating disapproval of the EU-ETS, and asserted that the EU had become increasingly isolated on this issue. According to the letter, the United States is strongly opposed to U.S. operators being subjected to coverage under the EU-ETS. According to the letter, 42 other countries have registered similar objections.
According to the NBAA and the Airlines for America (formerly the Air Transport Association of America), members will continue to seek a global approach to environmental issues, but in the interim, airline operators will adhere to the EU-ETS requirements. As this issue progresses please check back to this blog for further posts.