Since the United States did not enter into the Kyoto Protocol, efforts to reduce greenhouse gas (“GHG”) emissions from all sources, including aircraft, have been voluntary and largely a matter of public relations. A voluntary system, however, may soon be a thing of the past. Over the past year, Congress has considered legislation to create a mandatory cap and trade system for GHG emissions. Moreover, since Congress has been slow to issue a final bill, the Environmental Protection Agency (“EPA”) has begun the process of instituting a regulatory program to achieve emissions reductions pursuant to the Clean Air Act (“CAA”). Under either scenario, sources of GHGs would face the enforceable regulatory obligation of controlling carbon emissions.
In June 2009, the House of Representatives passed the American Clean Energy and Security Act of 2009 (“ACES”) (H.R. 2454). ACES would require GHG emissions to be reduced by 17% from 2005 levels by 2020, and over 80% by 2050, through a mandatory cap and trade system. The Senate version of the bill – the Clean Energy Jobs and American Power Act (S. 1733) – cleared the Senate Environment and Public Works Committee in November 2009, but no hearings or markups have yet been scheduled in the Senate committees on finance and agriculture. The Senate bill would require GHG emissions to be reduced by 20% from 2005 levels by 2020 and 83% by 2050, also through a mandatory cap and trade system. While ACES recognizes that GHG emissions from civil aircraft should be regulated on a global basis by the International Civil Aviation Organization, the Senate bill is silent on this issue.
Since the existing climate bill has stalled in the Senate, it has been reported that Senators Kerry, Graham, and Lieberman plan to introduce a compromise bill on April 26. The legislation is expected to include caps on GHG emissions from power plants beginning in 2012, a phase-in of emissions caps for the manufacturing sector, and a carbon tax on fuels.
Meanwhile, in December 2009, EPA published its final finding that emissions of six GHGs – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – endanger public health and the environment. 74 Fed. Reg. 66,496 (Dec. 15, 2009). The finding allows EPA to regulate GHG emissions from cars and light trucks and other mobile and stationary sources under the CAA, regardless of whether Congress enacts climate change legislation. Section 231 of the CAA specifically authorizes EPA to establish aircraft emission standards upon a finding that the emission of an air pollutant from aircraft engines endangers public health or welfare.
EPA’s finding has been extremely controversial. Sixteen petitions for judicial review have been filed in the D.C. Circuit Court of Appeals challenging the scientific basis for EPA’s endangerment finding. On April 15, 2010, the attorneys general from Virginia and Alabama filed a motion to compel EPA to reopen the endangerment finding and hold public hearings. In addition, legislation has been proposed in both the House and the Senate to prevent EPA from regulating GHG emissions. Nevertheless, EPA is proceeding to regulate GHG emissions and, on April 1, 2010, EPA and the National Highway Safety Administration announced a joint final rule to reduce GHG emissions and increase fuel economy for new cars and light trucks sold in the United States for model years 2012 through 2016.
EPA has previously promulgated regulations under CAA § 231, including emission standards for oxides of nitrogen (NOx) and carbon monoxide. Under the CAA, emission standards can include operation and maintenance requirements and design, equipment, work practice or operational standards. The Agency has stated that CAA § 231 authorizes it to set “technology-forcing” standards as long as the standards give manufacturers sufficient lead time. Although several states and environmental organizations filed petitions for rulemaking seeking regulation of GHG emissions from aircraft in late 2007, EPA did not include such a rulemaking in its Fall 2009 Regulatory Agenda.
At this point, it is not clear whether, or how, GHG emissions from aircraft will be regulated. We can expect, however, that, unless Congress or the court steps in, EPA will continue to issue regulations to reduce GHG emissions from a variety of stationary and mobile sources.
As a follow-up to our October 20, 2010 post entitled “Aviation Associations Denied Intervention into Environmental Lawsuit,” on July 5, 2011 the United States District Court for the District of Columbia refused to dismiss a lawsuit seeking to compel the Environmental Protection Agency (“EPA”) to make an endangerment finding for greenhouse gas (“GHG”) emissions from aircraft. (Ctr. for Biological Diversity v. EPA, No. 10-00985 (D.D.C. July 5, 2011). In its ruling, the court stated that the endangerment finding is a “compulsory” and “mandatory” step under Section 231 of the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq. As you may recall from the earlier post, an endangerment finding is a determination by EPA on whether or not aircraft emissions “significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”