Tackling U.S. aviation emissions in the courts

With national U.S. climate legislation failed, and Republicans running away from market-based solutions, the onus is on the Environmental Protection Agency (EPA) to develop national greenhouse gas standards. After the Supreme Court ruled in 2007 that the EPA must regulate dangerous greenhouse gases as a pollutant, environmental NGOs asked the EPA to start setting standards on dangerous mobile emissions from ships and planes, as explicitly required by the Clean Air Act. But after two and a half years of inaction, five frustrated NGOs turned to the courts to get the EPA to follow the law:

We talked to Sarah Burt from public interest environmental law firm Earthjustice about her work on the case on behalf of clients like Friends of the Earth and the Center for Biological Diversity. Burt describes the case:

1. The Supreme Court has ruled that greenhouse gases are indeed pollutants under the Clean Air Act
2. The Clean Air Act says that if aviation emissions endanger public health then they must be regulated
3. The EPA agrees that greenhouse gases threaten public health
4. Given that aviation is a a major source of greenhouse gas emissions, this should trigger an obligation to take action under the Clean Air Act
   

She later pulls out a copy of the text of Clean Air Act to show us exactly what it says about aircraft emission standards: "The Administrator shall...issue proposed emission standards applicable to the emission of any air pollutant from...aircraft engines which...contributes to...air pollution which may reasonably be anticipated to endanger public health or welfare." (U.S. Clean Air Act, Section 231)

According to Earthjustice's petition, in 2008, marine vessels entering U.S. ports accounted for 4.4 percent of domestic mobile source greenhouse gas emissions, while aircraft accounts for 3% of the total domestic greenhouse gas inventory; net impacts may be much greater due to aviation-induced ozone, contrail, and cirrus formation.

How has the EPA reacted to the suit? Burt reports mixed signals, though the government's certainly fighting back. As for now, the case isn't moving. "The government moved to dismiss 3 of the 4 claims. We opposed. We're waiting for a decision from the judge."

Burt's realistic about the complications. "Under Lisa Jackson, the EPA's been good on dealing with emissions from cars and power plants. But shipping and aircraft are different, because they're international, and a variety of international agreements may be involved." She tracks international work in fora like the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO), which regulate global shipping and aviation, respectively. She's frustrated at the inaction at an international level. "Nothing happened at the IMO meeting leading up to Copenhagen...nations like India and China blocked a deal at the IMO, but if you were to exclude all developing nations from a deal, that would exclude most ships, since 70% of all ships are flagged to developing nations."

What about aviation regulation at the ICAO? "The ICAO has been even worse than the IMO," she laughs, describing ICAO's history of inaction on greenhouse gases. "At least the IMO has more input from civil society." We checked back in after the 2010 ICAO assembly in Montreal, which resulted in what struck us as a toothless greenwashed agreement. "The ICAO agreement is important generally but it doesn't change things [around the lawsuit]...The agreement is not a standard -- they are aiming to have some metrics that could then become a standards by 2013 but from what I hear at ICAO it is likely to codify business as usual rather than putting in place a standards that would actually reduce emissions...EPA has a duty to put in place a standard that complies with the requirements of the Clean Air Act -- a business-as-usual standard wouldn't accomplish this. So bottom line is that while the ICAO agreement is a step forward, it does not (yet) replace strong regional action."

Earthjustice is arguing that the US has the authority to regulate environmental health impacts of US-flagged ships and aircraft, as well as those that land within the US. But that battle's also getting waged outside the courtroom. "The airline industry is very good at controlling the message," she says. "Shipping agencies aren't nearly as proactive. Airlines say they're going under, and that any attempt to regulate will kill the industry." But airlines aren't the only players. Burt walked us through some of the groups doing lobbying work on the issue:

• Individual airlines
• The International Air Transport Association and the Air Transport Association of America
• Manufacturers (e.g. Boeing)
• National Business Aviation Association (e.g. FedEx)
• American Institute of Aeronautics and Astronautics
• General Aviation Manufacturers' Association (e.g. Boeing)

We asked Burt what she could do if she had a thousand more people to support her work. "It wouldn't take a thousand," she says. Just getting a handful of high-profile people to start talking about this issue would do wonders. She points at Richard Branson as one of the few highly-visible people in the industry talking about these issues. "To some extent," she adds, "the solution needs to be technically driven. Stimulus spending support transportation alternatives is a help...there's room for reduction in the U.S, but we need the alternatives. The US is different from the EU -- they can travel by rail."

Sarah Burt isn't trying to remake the world. She just wants the government to follow the law, and for industry to do its job. We ask her about best case scenarios a few years out, and she suggests a mandatory emissions cap. with reductions achieved via improvements in aircraft design, alternative fuels, improved routing and navigation systems -- most of which are ideas industry is batting around as well. "We're ready for a big efficiency step-up," she says. The clock is ticking, and Sarah Burt is waiting.

Read more:

• Earthjustice's summary of the case
• Text of the legal complaint (PDF)
• Press release
• Coverage in GreenAir