Coalition Lobbies Senate on Passage of EU-ETS Prohibition Bill

As a follow-up to our October 26, 2011 post entitled, “House Passes European Union Emissions Trading Scheme Prohibition Act,” the National Business Aviation Association (“NBAA”) along with 14 other organizations representing the aviation sector formed a coalition to lobby the Senate on the passage of Senate Bill S.1956. The Senate bill is similar to that of House bill H.R. 2594, which passed convincingly in the House and prohibits U.S. airlines from complying with the European Union Emissions Trading Scheme (“EU-ETS”). The coalition claims that U.S. operators would lose billions of dollars if the EU-ETS prohibition is not passed, which in turn would fill the coffers of the European governments.

The projected date of implementation of the EU-ETS is January 1, 2012. For more details regarding the Coalition please see the NBAA website.

 

Special thanks to Michael Karp, Business Development and Marketing Intern, for assistance in preparing this post.

EPA Sets Its Regulatory Cross Hairs on Leaded Aviation Fuel

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. 

Aviation Associations Denied Intervention into Environmental Lawsuit

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.

EPA Begins Rulemaking Process to Address Lead in Aviation Gasoline

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.”