U.S. House to EU: A pox on your emissions law

Aviation International News » August 2011
July 31, 2011, 10:20 AM

Congress threw the gauntlet at the European Union last month when a bipartisan group of House Transportation Committee leaders filed legislation to ban U.S. air carriers from participating in the EU’s emissions trading scheme (ETS).

The EU plans to impose a costly fee on any civil aviation operators landing or departing from EU airports beginning on January 1. Under the EU-ETS, all civil aircraft (including business aircraft) would be forced to participate, despite the objections of the U.S. government and now Congress.

“This unjust European Union emissions trading scheme is a clear violation of international law that puts U.S. air carriers at a competitive disadvantage, kills U.S. aviation jobs and may lead to a trade war,” said Rep. John Mica (R-Fla.), chairman of the House Transportation and Infrastructure Committee. “This bipartisan measure sends a clear message to the EU that the United States will not participate in this ill-advised and illegal EU program.”

The bill, the “European Union Emissions Trading Scheme Prohibition Act of 2011,” directs the Secretary of Transportation to prohibit U.S. aircraft operators from participating in the EU’s ETS. It also instructs U.S. officials to negotiate or take any action necessary to ensure U.S. operators are not penalized by any unilaterally imposed EU-ETS.

Program Lacks Transparency

The U.S. government has formally objected to ETS. Under the scheme, all flights into or out of an EU airport would be subject to the program’s emissions cap-and-trade requirements, regardless of how long that flight is in EU airspace. U.S. operators would be required to pay an emissions tax to the EU member state to which they fly most frequently.

Even if the U.S. consented to this unilateral program, there is no requirement that this revenue go to emissions-related research and development. The ETS also lacks any transparency or clarity, providing no guidance as to how the EU will apply the ETS to international air carriers.

“The European Union plans to unilaterally thrust an emissions trading scheme upon U.S. airlines in violation of international agreements and laws,” said Rep. Nick Rahall (D-W.Va.), ranking Democrat on the transportation committee. “To boot, this trading scheme looks more like a shell game to shuffle the money around because no one can say with certainty that the money will be used for its intended purpose.”

Numerous other countries including China, Australia and Canada have also expressed objections to the application of ETS to their air carriers. U.S. airlines have also challenged the policy before the European Court of Justice as a violation of international law.

The proposed law notes that U.S. aircraft operators will be required under the ETS to pay for European Union emissions allowances for aircraft operations within the U.S., over other non-EU countries and in international airspace for flights serving the EU countries.

It also claims that the EU’s extraterritorial action is inconsistent with long-established international law and practice, including the Chicago Convention of 1944 and the bilateral aviation agreement between the U.S. and the European Union and its member states, and directly infringes on the sovereignty of the this country.

The U.S. has made it clear that International Civil Aviation Organization (ICAO) policies, standards and recommended practices should provide the framework for any measures to address international civil aviation emissions issues. The U.S. formally lodged an objection to the EU-ETS at a half-yearly meeting of the U.S.-EU Joint Committee in Oslo, and members of Congress confronted EU leaders on the matter in other recent meetings. The Joint Committee was established by the U.S. Open Skies treaty signed in 2007 as a forum for both sides to discuss important aviation-related issues.

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