EU Court Rules U.S. Airlines Must Pay for Carbon Emissions

LUXEMBOURG, December 22, 2011 (ENS) – United, Continental and American Airlines and their trade association have failed to block a European Union law that charges airlines flying to EU destinations for their greenhouse gas emissions.

The Court of Justice of the European Union ruled Wednesday that the EU law that brings aviation activities into the EU’s emissions trading scheme is valid.

“Application of the emissions trading scheme to aviation infringes neither the principles of customary international law at issue nor the Open Skies Agreement,” Europe’s highest court decided.

In 2003, the EU decided to set up a scheme for greenhouse gas emission allowance trading, as a central element of European policy to combat climate change. Initially, the system did not cover greenhouse gas emissions from air transport. But a law passed in 2008 provides that aviation activities will be included in that scheme from January 1, 2012.

Aircraft at London’s Heathrow International Airport (Photo by Hunter Desportes)

From that date, all airlines, including those of third countries, must acquire and surrender emission allowances for their flights which depart from and arrive at European airports.

Claiming the EU measures impose a form of tax on fuel consumption, in 2009, the airlines and their trade association, Airlines for America, challenged the legality of measures in the UK transposing the EU’s Aviation Directive into UK law.

They claimed infringement of international law and the EU-U.S. Open Skies agreement, the Chicago Convention and the Kyoto Protocol.

The High Court of Justice of England and Wales asked the European Court of Justice whether the directive is valid in the light of those rules of international law.

The European Court of Justice, which has one judge for each of the 27 EU Member States, confirmed the validity of the directive that includes aviation activities in the emissions trading scheme.

The U.S. airlines trade association, Airlines for America, A4A, said Wednesday, “Today’s court decision further isolates the EU from the rest of the world and will keep in place a unilateral scheme that is counterproductive to concerted global action on aviation and climate change.”

“The court did not fully address legal issues raised and has established a damaging and questionable precedent by ruling that the European Union can ignore the Chicago Convention and other longstanding international provisions that have enabled governments around the world to work cooperatively to make flying safer and more secure, and to reduce aviation’s environmental footprint,” Airlines for America said in a statement.

The European Court of Justice said in its ruling, “In particular, the Court establishes that the EU is not bound by the Chicago Convention because it is not a party to that convention and also has not hitherto assumed all the powers falling within the field of the convention.”

A4A said the decision “does not mark the end of this case and Airlines for America is reviewing options to pursue in the English High Court. At the same time, the U.S. government and dozens of others around the world are increasing pressure on the EU to come back to the table to consider a global sectoral approach.”

“In the meantime,” the association said, “A4A members will comply under protest and will continue to operate safely and efficiently to Europe when the scheme takes effect Jan. 1.”

A4A is part of an international, industry-wide aviation coalition that has proposed the adoption of a global sectoral approach by the International Civil Aviation Organization, the United Nations body charged with setting standards for international aviation. In October 2010, ICAO adopted a resolution with targets and principles broadly consistent with the industry’s approach.

A transatlantic coalition of environmental groups applauded the decision, saying, “Today’s decision, from the highest court in the European Union, makes clear Europe’s innovative law to reduce emissions from international flights is fully consistent with international law, does not infringe on the sovereignty of other nations, and is distinct from the charges and taxes subject to treaty limitations.”

The coalition’s six participants include three U.S.-based groups: Center for Biological Diversity, Earthjustice, and Environmental Defense Fund; and three European groups: Aviation Environment Federation, Transport and Environment, and WWF-UK. All six groups are intervenor-defendants in the litigation.

“The Court’s finding reinforces the EU’s stance on finding a cost effective way of addressing the aviation’s significant and growing contribution to climate change,” said Tim Johnson, director of the Aviation Environment Federation. “We hope that the focus will now shift away from obstructing its progress on the eve of its introduction and examine how such regional initiatives can form the building blocks of a global agreement.”

Aviation is one of the fastest-growing sources of greenhouse gas emissions, rising three to four percent per year. Until now, the sector has escaped regulations that would require emissions reductions.

Martin Wagner, managing attorney at Earthjustice said, “This is an important victory for the planet. U.S. aircraft emissions account for nearly half of worldwide carbon dioxide from aircraft; that amount is expected to triple by mid-century. But the US airline industry has fought to avoid playing its part in preventing runaway climate change. With U.S. airlines shirking their duty, Europe has had to take the lead. The airline industry should now pressure the U.S. government to level the playing field by imposing equivalent restrictions on aircraft pollution in the United States.”

Copyright Environment News Service (ENS) 2011. All rights reserved.