The Spring 2009 edition of The Climate Report discussed what the integration of aviation activities into the European Union Emissions Trading Scheme, or "EU-ETS," meant for aircraft operators and Member States, as well as a number of unanswered questions that rendered enforcement of the underlying European Directive difficult. A year later, some answers have been provided. For example, guidelines on the elaboration of monitoring plans and reporting have been inserted into European legislation. However, some significant questions remain.  

List of Aircraft Operators. On January 28, 2010, the list of aircraft operators performing an "aviation activity" on or after January 2006, as defined in Annex I to Directive 2003/87/EC establishing EU-ETS, was expanded by the adoption of Regulation No. 82/2010. As a consequence, the list first established in 2009 under Regulation (EC) No. 748/2009 was amended.

The amended list of covered aircraft operators aims to facilitate paperwork by identifying the Member State in charge of administering the data reports from each aircraft operator. However, the EU Commission has taken a cautious approach to the list at this point, noting that the absence or presence of an aircraft operator on the list does not determine whether that aircraft operator falls under the EU-ETS. Any aircraft operator performing aviation activity listed in Annex I to Directive 2003/87/EC is bound by the EU-ETS. The Commission intends to issue an updated list of aircraft operators every February or so, to correct mistakes and include new entrants.

Measurement and Reporting. The European Commission has placed on its web site templates (available in English and in some other Member States' languages) to facilitate the filing of emissions and benchmarking reports as well as monitoring plans. However, aircraft operators should also pay close attention to the guidance and requirements of the relevant agency in their administering Member State, which are trying to make reporting as convenient as possible. For instance, the French Department of Aviation (Direction des Transports Aériens, Bureau de l'Environnement ETS, DTA-SDD-ETS) and the UK Environment Agency accept plans and reports submitted either electronically or by mail. Their web sites are very detailed and provide useful information on reporting procedures.

This summer, the Commission adopted Regulation No. 606/2010, through which it approved a simplified method of calculating fuel consumption and carbon dioxide emissions, developed by EUROCONTROL, the European Organisation for the Safety of Air Navigation. This method is primarily for use by small emitters (i.e., aircraft operators operating fewer than 243 flights per four-month period for three consecutive periods, and aircraft operators operating flights with total annual emissions of less than 10,000 tons of carbon dioxide). However, larger emitters may also use the method to generate data for some flights where the otherwise required data is unavailable due to circumstances beyond the operator's control.

Verification. On August 9, 2010, France adopted a regulation on verification of data reports provided by those aircraft operators administered by France. The French regulation is similar to European laws (Decision 2007/589/EC and Decision 2009/339/EC) on monitoring and reporting emission and ton-kilometer data from aviation activities, and directly refers to the mechanisms and standards developed by the European Union. Reports submitted by aircraft operators should be verified by an entity accredited by the Comité Français d'accréditation ("COFRAC") or, when certain conditions are met, by another Member State's accreditation body in accordance with a multilateral agreement developed by the European Co-operation for Accreditation. Small emitters receive the benefit of simplified verification procedures.

European Court of Justice to Hear U.S. Airlines' Challenge. The English High Court has permitted a challenge to the legality of extending the EU-ETS to non-EU airlines to proceed. The challenge is brought by the Air Transport Association of America, a trade association for U.S. airlines, and three individual U.S. airlines that the European Commission has designated as under United Kingdom jurisdiction.

ATA and the airlines contest the application of the emissions trading scheme to airlines based outside the European Union whose planes arrive in or depart from the EU. The High Court's decision means the case will be referred to the European Court of Justice, which has authority to rule on the validity of the EU directive extending the EU-ETS to international aviation.