Business Aviation Law Blog : Boston Aviation Lawyer & Attorney : Harry Ekblom : Sullivan & Worcester Law Firm : FAA Regulation & Aircraft Transactions

Avgas (aviation gasoline), the last type of leaded fuel available on the U.S. market, has recently drawn the scrutiny of EPA. Although it makes up only a tenth of 1 percent of the liquid fuel sold in the U.S., it is the life blood of smaller piston-engine aircrafts. In the 1970’s and 1980’s, EPA used its authority under the Clean Air Act to push for the removal of lead from automobile gasoline and today this move is considered one of the greatest environmental achievements of all time. However, Avgas and racing fuel were spared EPA regulation mainly because of their relative small impact and limited use. Racing fuel switched to a customized blend of high-octane gasoline in 2008 and it appears that EPA has now taken notice of Avgas.

Later this year, air quality monitors will be installed at 15 airports to gather data on lead pollution and to aid EPA in making a determination on whether Avgas is exposing people to dangerous amounts of lead. EPA’s move comes as a result of a lawsuit from the environmental group Friends of the Earth. Scientific studies have shown that aircraft emissions contributed to lead in children’s blood, particularly those living close to airports.

The Federal Aviation Administration has assembled the Unleaded Avgas Transition Aviation Rulemaking Committee to plan for the potential transition away from Avgas, but the same problem that has kept Avgas around in the first place has yet to be solved. The problem being that no suitable replacement exists. Lead helps protect engines, a unique quality not easily replicated. Engines that burn Avgas can’t handle the ethanol added to regular gasoline and premium gasoline is less powerful than the 100 octane Avgas. The industry has been testing alternatives for quite some time, but none have worked. However, the industry has not been under any pressure thus far to achieve results.

Any Avgas ban would most directly affect aircraft operated in Alaska, which uses roughly one-third of the Avgas consumed in the U.S., and in other remote areas that use piston-engine planes to deliver food, medicine, and other supplies to remote towns. An Avgas ban would essentially regulate these aircraft out of existence. To address this, the National Business Aviation Association and others have formed acoalition of stakeholders that is seeking an approach that focuses on concerns about safety, cost, availability and ease of Avgas production.

If you consider that Avgas is only a small piece of the overall emissions pie, it is clear from this move to begin a monitoring program as well as other recent moves by EPA that air pollution is a top priority. It is likely we will see more emissions regulation in the near future. As this issue progresses, please check back to this blog for future posts. 

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As a follow-up to our July 14, 2011 post entitled “EPA Proposes Rule to Set Standards for Nitrogen Oxide Emissions From Aircraft Engines,” on July 27, 2011 the Environmental Protection Agency (“EPA”) published the proposed rule setting nitrogen oxide emissions standards for aircraft engines in the Federal Register (76 Fed. Reg. 45,012). The United Nations’ International Civil Aviation Organization (“ICAO”) has previously endorsed the emissions standards and engine manufacturers have begun conforming to the published standards. The EPA believes that the emissions standards will reduce nitrogen oxide emissions at takeoff and landing by 100,000 tons between 2014 and 2030.

The rule’s release date was July 6, 2011 (130 DEN A-7, 7/7/11) and the EPA will accept comments on the proposed rule through September 26, 2011 at Regulations.gov (Docket Number: EPA-HQ-OAR-2010-0687). A public hearing will be held on August 11, 2011 at the Sheraton Chicago O’Hare Airport Hotel in Rosemont, Illinois at 9:30 a.m. As this issue progresses, please check back to this blog for future posts.

Special thanks to Sullivan & Worcester's Ari Hoffman, environmental intern, for assisting in the preparation of this post.

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Special thanks to Sullivan & Worcester's Ari Hoffman, environmental intern, for assisting in the preparation of this post.

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.”

The Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment, and Oceana sued EPA in 2010 claiming the agency had failed to respond to their petitions for making an endangerment finding for GHG emissions from aircraft, marine vessels and other non-road engines within the 90-day timeline required by the CAA. 

The court did not order EPA to make the endangerment finding for aircraft GHG emissions because the ruling was in response to a motion to dismiss from EPA and came at a preliminary stage of the litigation. The court did, however, grant in part EPA's motion to dismiss. Judge Henry H. Kennedy Jr. dismissed the portions of the lawsuit involving the endangerment findings for marine vessels and other non-road engines, citing EPA discretion. Despite this ruling, the environmental groups may still continue with their claims that EPA did not adequately respond to their petitions seeking regulation of GHG emissions. As this case progresses, please check back to this blog for future posts. 

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Special thanks to Sullivan & Worcester's Ari Hoffman, environmental intern, for assisting in the preparation of this post.

On July 6, the Environmental Protection Agency (“EPA”) released a proposed rule to set nitrogen oxide (NOx) emissions standards for aircraft engines in line with those already endorsed by the United Nations’ International Civil Aviation Organization (“ICAO”). The Air Transport Association (“ATA”) asserted that it would ensure the rule was in harmony with international standards. The proposed rule would apply to engines with thrusts greater than 26.7 kilonewtons, usually found in commercial passenger and freight aircraft, and would reduce ground-level nitrogen oxide emissions in the United States by 100,000 tons between 2014 and 2030.

The proposed rule would set two stringent emissions tiers for nitrogen oxide, called “Tier 6” and “Tier 8.” Aircraft engine models certified before the effective date of the proposed rule can continue production through December 31, 2012. Engine models certified between the effective date and December 31, 2013 will have to adhere to the Tier 6 emissions standard. The Tier 8 standard will be mandatory for engine models certified on or after January 1, 2014. An equivalent Tier 6 standard became effective internationally in December 2007 and an equivalent Tier 8 standard was recommended to the ICAO in February 2010. The proposed rule would take effect only if the ICAO adopts equivalent standards. If the ICAO adopts different standards, however, EPA will reevaluate accordingly. 

More information on the proposed rule is available on EPA’s website. The proposed rule will be open to public comment for 60 days from the date of publication in the Federal Register. Corporate aircraft owners should take this opportunity to voice concerns and questions in the event that EPA decides to take similar regulatory action on smaller aircraft engines. As this issue progresses, please check back to this blog for future posts.

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Special thanks to Sullivan & Worcester's Van Hilderbrand and Ari Hoffman, environmental intern, for preparing this post.

In June 2010, a complaint for declaratory and injunctive relief was filed by several environmental groups who request that the Environmental Protection Agency (“EPA”) determine if greenhouse gasses (“GHGs”) from marine vessels, aircraft and other non-road vehicle sources “significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare” (District of Columbia, C.A. 1:10-cv-00985). Pursuant to its authority under the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., EPA has adopted aircraft emissions standards “covering certain criteria pollutants or their precursors and smoke; these standards do not currently regulate emissions of CO₂ and other [greenhouse gases].”  Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,469 (July 30, 2008). Ultimately, the environmental groups want to force EPA action to establish a plan for regulating GHG emissions from these sources. 

Late last year, four aviation related associations, the Air Transport Association of America (“ATA”), National Business Aviation Association (“NBAA”), Aerospace Industries Association of America (“AIA”), and General Aviation Manufacturers Association (“GAMA”), moved to intervene in the case in support of EPA. The aviation associations claimed that an EPA action plan would harm the associations by (1) imposing new aircraft emissions standards and (2) developing such standards on an accelerated timetable (the complaint calls for a 90-day determination timetable). 

Last month, the Court denied the intervention and held that the claimed injuries were too hypothetical and too far removed from the judgment to constitute a “certainly impending” causal connected injury for standing purposes. In support of its holding, the Court stated that its decision would only make the EPA initiate the endangerment finding process, not cause the agency to find that GHGs emitted from these sources endanger the public health and welfare. The Court also denied permissive intervention under Rule 24(b) of the Federal Rules of Civil Procedure because the associations’ participation would not be helpful to the litigation. As this case progresses, please check back to this blog for future posts.

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On April 28, 2010, the U.S. Environmental Protection Agency (“EPA”) published an Advance Notice of Proposed Rulemaking (“ANPR”) regarding lead emissions from piston-engine aircraft using leaded aviation gasoline. 75 Fed. Reg. 22,440 (Apr. 28, 2010). At this point, EPA is not proposing to regulate the use of leaded fuel, but is seeking comment on the data available for evaluating lead emissions, ambient concentrations, and potential exposure to lead from the use of leaded aviation gasoline. The ANPR also requests comment on approaches for phasing-down or eliminating leaded aviation gasoline. EPA will accept public comment on the ANPR through June 28, 2010.

Leaded aviation gasoline is used in general aviation aircraft with piston engines, which are typically used for instructional flying, air taxi activities, and personal transportation at around 20,000 airports in the United States. EPA estimates that the use of leaded aviation gasoline is responsible for approximately one-half of the nation’s air emissions of lead.

EPA is initiating the rulemaking in response to a petition submitted by Friends of the Earth in October 2006. The petition requested that EPA either (1) find that lead emissions from general aviation aircraft endanger public health and welfare and issue a proposed emissions standard, or (2) commence a study of the health and environmental impacts of lead emissions from general aviation aircraft if the Agency does not have sufficient information to make an endangerment finding.

After evaluating the comments received in response to the ANPR, EPA will determine whether emissions from aircraft using leaded aviation gasoline cause or contribute to air pollution which may be reasonably anticipated to endanger public health or welfare. If EPA makes an endangerment finding, the Agency has asserted that it would be required to establish an emissions standard for lead from piston-engine aircraft unless, in consultation with the Federal Aviation Administration, the proposed standard would increase noise and adversely affect safety.

The Aircraft Owners and Pilots Association (AOPA), the Experimental Aviation Association (EAA), the General Aviation Manufacturers Association (GAMA), the National Air Transportation Association (NATA), and the National Business Aviation Association (NBAA) issued a joint statement urging the industry to comment on the ANPR. The industry groups cited “the technical complexity and safety implications of removing lead from aviation gasoline since there is not a high-octane replacement unleaded avgas available today that meets the requirements of the entire [general aviation] fleet.”

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On April 24, 2010, Sen. Graham withdrew his support for the climate and energy bill he had been drafting with Sens. Kerry and Lieberman after Senate Democrats refused to commit to acting on the climate bill before addressing immigration reform. Therefore, the bill announcement, which was scheduled for today, has been postponed. Sens. Kerry and Lieberman have indicated that they will move forward with the bill.

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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 (NO_x) 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.

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