Environmental Groups File Notice of Intent to Sue EPA Again Over Endangerment Finding for Aircraft Emissions

As discussed previously in this blog, in 2012, the United States District Court for the District of Columbia required the Environmental Protection Agency (EPA) to review and respond to an administrative petition filed by several environmental groups, including the Center for Biological Diversity and Friends of the Earth, regarding their request that the agency issue an endangerment finding for greenhouse gas (GHG) emissions from aircraft. (Ctr. for Biological Diversity et al. v. EPA et al., No. 1:10-cv-00985). Section 231 (a)(2)(A) of the Clean Air Act, 42 U.S.C. § 7401 et seq., requires EPA to determine whether GHG emissions from aircraft endanger public health and the environment, and thus should be regulated. EPA reviewed the petition and responded that the agency would need 22 months to complete the rulemaking process.

On August 5, 2014, the Center for Biological Diversity and Friends of the Earth filed a notice of intent to sue EPA for unreasonable delay because, after two years, the agency has failed to begin the rulemaking process to determine if an endangerment finding is necessary. According to the groups, the aviation sector is one of the fastest-growing sources of carbon dioxide pollution, contributing 3% of the U.S. GHG emissions in 2006 and emissions were growing by 5% annually by 2008.

As this case progresses, please check back to this blog for future posts.

Aircraft Greenhouse Gas Emissions and EPA's Endangerment Finding

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.

Kerry and Lieberman Unveil the American Power Act

On May 12, 2010, Sens. Kerry and Lieberman introduced a discussion draft of their long-awaited climate bill – the American Power Act. The bill would establish a program to reduce U.S. greenhouse gas (“GHG”) emissions 17 percent from 2005 levels by 2020, and 83 percent by 2050. The bill would mandate emissions limits on approximately 7,500 manufacturing facilities and power plants that emit more than 25,000 tons of GHGs annually. Companies covered by the legislation could achieve compliance by obtaining the free carbon emission allowances that would be distributed under the bill, or by purchasing such emission allowances as necessary.

The bill would apply to electric utilities, transportation fuels, including aviation fuel, and other refined oil products beginning in 2013, and to manufacturers in energy-intensive industries and natural gas distributors in 2016. Eventually, most regulated sources would purchase emission allowances or offset credits through federal auctions or a regulated market. Allowances for transportation fuels and other petroleum products would be purchased by refiners and fuel providers at a fixed price from the government. The bill would provide significantly more free GHG emissions allowances to covered sources than previous bills; free allowances would not be completely phased out until 2030.

Allowances would also be distributed to states that could sell the allowances to fund energy efficiency programs, adaptation programs, and research and development of new technologies. Beginning in 2026, consumers would receive a portion of the revenue raised from auctioning the allowances through energy bill discounts and rebates.

The bill would preempt state GHG cap-and-trade programs and all other state regulation of GHG emissions from stationary sources, but would allow states to continue to develop GHG emission standards for motor vehicles and other mobile sources. The bill would also prevent EPA from regulating GHGs under the Clean Air Act’s existing construction and operating permit programs. However, EPA would be permitted to regulate emissions from mobile sources, including aircraft, and set technology-based new source performance standards for sources with annual GHG emissions of less than 25,000 tons.

The Kerry-Lieberman bill also promotes investment in advanced vehicle technology and batteries, offshore drilling, nuclear power, and the development of carbon capture-and-storage technologies at coal-fired power plants. However, in response to the recent Deepwater Horizon oil spill, states would be allowed to veto new offshore drilling leases within 75 miles of their coast and drilling plans of neighboring states that could have negative impacts on them.

The bill recognizes the importance of developing a global framework for regulating GHG emissions from civil aircraft and specifically provides for allowances for international air carriers to compensate for compliance with foreign GHG reduction systems, such as the European Union Emissions Trading System, which will begin regulating carbon emissions from aircraft in 2012.

Although the bill is supported by a number of industry leaders and environmental organizations, it is not expected to pass the Senate.