This summer, the U.S. Air Transport Association initiated a court challenge to test the legality of the European Union’s emission trading scheme when applied to the aviation industry. In a recently released preliminary court opinion, Germany’s advocate general asserted that the ETS doesn’t violate international law. Leading aviation authorities blatantly disagree.
Arguing that the EU ETS’ inclusion of global aviation is legal, the German Advocate General at the Court of Justice of the European Union Juliane Kokott disputed opposition to the scheme. A press release issued by the Court of Justice of the European Union laid out her views, including that the EU ETS is an initiative to combat climate change — as opposed to a moneymaking scheme.
The EU ETS, which forces carriers flying in or out of Europe to monitor their emissions and purchase carbon allowances if the flight exceeds a pre-determined limit, officially goes into effect on January 1. It’s also a perfect legal way to promote sustainability, Kokett argued.
“There is … no impermissible unilateral action on the part of the European Union outside the framework of the International Civil Aviation Organization since, under the Kyoto Protocol, the limitation and reduction of greenhouse gases is not the exclusive competence of the ICAO,” the EU press release stated. “The Open Skies Agreement does not rule out the application of market-based measures regarding aviation emissions either.”
IATA officials would beg to differ. Blasting the EU ETS as an “infringement on sovereignty and the Chicago Convention,” IATA Director General and CEO Tony Tyler expressed his dismay about Kokett’s opinions. A better way to lower carbon emissions, he argued, is to follow the principles outlined by the ICAO.
Despite calling Kokott’s opinion an “important step in the court process,” an ATA spokesman was quick to point out that it’s a non-binding document. What’s more, ATA officials remain optimistic that a compromise can be reached. “[The] opinion will provide a basis on which the judges assigned to the case can further deliberate and come to a full and unanimous decision. In complex cases such as this one, it would not be unusual for the full court’s final opinion to vary from the preliminary opinion.”
Opposition to the EU ETS in all corners of the aviation sector has been intensifying. Members of the Indian government drafted up a declaration condemning the scheme recently. Prashant Sukul, joint secretary in India’s Ministry of Aviation, talked about his government’s strategy during a panel Routes conference in Berlin last weekend.The agreement united 25 countries — including South Africa, the U.S., Brazil, Egypt, Argentina, Chile and China — against the EU ETS.
“My feeling is that the court proceedings won’t really go the Americans’ way,” Sukul correctly predicted during the conference. “Seeing that, we had decided to get everyone together and organize solid political opposition to this.”
Details of India’s organized opposition came during a Sunday panel on the international politics of aviation during which a heated debate of the EU ETS inflamed the passions of each panelist.
As diplomatically as possible, Folasade Odutola of the International Civil Aviation Organization called the EU ETS a contentious issue. She said the ICAO is working on a global framework for addressing the aviation’s impact on climate.
“We are working assiduously to put in place a framework for market-based measures, so that everybody will be satisfied,” Odutola said. “The way EU ETS is put together, everybody is not happy with that. We’re trying to find a solution.”
In an email to Air Cargo World, ICAO’s Stéphane Dubois elaborated on the organization’s measures. “ICAO is working on the development of a global framework for market-based measures pursuant to Resolution 37-19 that was passed by the General Assembly [on] October 8, 2010. The assembly requested that an analysis be undertaken in 2011 regarding how states, and their aviation operators, would be impacted by MBMs. This analysis, which will be completed shortly, will help inform the deliberations of the ICAO Council on the global MBM framework. The council will then report back to the general assembly on the overall MBM framework in 2013.”
Even with foreign carriers wholly opposed to the emissions trading scheme, industry officials realize something must be done to combat climate change. “The impact of aviation on the environment is a global problem requiring a global response,” Vijay Poonoosamy, vice president of international and public affairs at Etihad Airways, said. But it’s problem that remains unanswered by the EU ETS, he explained.
Calling the ETS “divisive, disputed and distracting,” Poonoosamy laid out what he considers a better approach to sustainability. “I urge all those supporting and all those opposing EU ETS to channel their energies in helping ICAO diligently develop a credible global response,” he said Thursday after learning about the preliminary ruling.
Let’s be frank – ALL the world’s airlines HAVE already registered (a handful “under protest” admittedly) for free allowances within the scope of the EU ETS aviation regulations; they have also invested in all the necessary monitoring and verification software to participate; most are already operating in the carbon market through both in-house and external systems, advisors and traders; and all the airlines of the 26 states who signed up to this pretty meaningless declaration have done so too without exception.
One or two airlines have already been fined by EU member state’s regulators for missing deadlines in the run-up to the ETS January 2012 start date, so perhaps now is a good time to remind airlines of the heavyweight, some might say draconian, financial penalties for any future non-compliance which could potentially bankrupt even the world’s largest airlines.
We know that airlines are very aware of these penalties and many of them have said publicly that they do not intend to break any ETS-related laws at several meetings and events I have attended, although they oppose the scheme.
There is a substantial degree of desperate last-minute posturing and grandstanding to try and avoid practical and fair market-based environment protection solutions from IATA and countries who should know better – the recent presentation to ICAO in Montreal from the EC’s Artur Runge-Metzger, International and Climate Strategy Director, easily found on the web, is a welcome and very clear explanation of where are right now and why the EU ETS is a fair and equitable policy.
Using this scheme as the global model is the way forward. Those states trying to avoid the fairly “light touch” ETS regulation in this latest bit of institutionalised moaning, are misguided and out-of-touch with the reality of the urgent need for action to control and reduce the climate change impacts of civil aviation.
Which is all the more difficult to understand when many are in the frontline of the fight against climate change right now.
The EU is not going to capitulate and has the support of environment NGO’s everywhere – covering around a third of aviation’s global CO2 emissions is a stunning achievement and needs support and expansion, not arrogant whingeing from the industry’s flat earthers. If you can afford the cost of a ticket, you can afford the cost of carbon.
Jeff Gazzard
Aviation Environment Federation
Mr Gazzard above does a fine job himself of bemoaning in the finest but stale tradition of whining about how the ever-increasingly clean & efficient aviation industry is still somehow killing off an entire celestial body’s ecosystem. His minions are those who view air travel & air commerce as the realms of rich nasty ol’ capitalists, alas. Support and expansion, he insists?! Indeed — but NOT of some dishonest attempt to “save Earth”. The arrogance is from HIS small dark corner, not from an industry the likes of aviation which is bullied & pilloried & “picked on”, if you will, by leftist ChickenLittles & their fear-mongering puppets.