US politicians introduce bill to prohibit airlines from joining EU ETS while EU MEPs urge Commission to stand firm

US politicians introduce bill to prohibit airlines from joining EU ETS while EU MEPs urge Commission to stand firm | ECJ

Thu 21 July 2011 – The simmering tension between the United States and Europe over the Aviation EU ETS is growing, with politicians on both sides of the Atlantic joining in the dispute. A bill was introduced yesterday in the US House of Representatives that directs the Department of Transportation to prohibit US carriers from participating in the EU’s Emissions Trading Scheme. The bipartisan bill, called the European Union Emissions Trading Scheme Prohibition Act of 2011, says recent US objections to the EU have not received a satisfactory response and calls on the DoT, the FAA and other appropriate US government officials to conduct further negotiations and take actions to ensure civil aircraft operators are “held harmless” from the “unilateral” scheme. Meanwhile, EU Members of Parliament have called on the European Commission not to give in to pressure from the US, China and Russia for their airlines to be exempted.


The US bill has been proposed by House Transportation and Infrastructure Committee Chairman John Mica (R-FL), along with Republican and Democrat representatives. The four-page bill (link below) follows the arguments put forward by the Air Transport Association (ATA) and major airlines American and United/Continental in their case now before the European Court of Justice (see article).


It says the EU has unilaterally imposed the trading scheme and its extraterritorial action is inconsistent with long-established international law and practice, including the Chicago Convention and the bilateral air transport agreement between the United States and the EU and its member states, and directly infringes on the sovereignty of the United States. It goes on to say the EU’s action undermines efforts by the International Civil Aviation Organisation (ICAO) to develop a unified worldwide approach to reducing GHG emissions and “has generated unnecessary friction within the international civil aviation community.”


The bill’s authors add that there is no assurance that ETS revenues will be used for aviation environmental purposes by the EU member states that will collect them.


“The United States government expressed these and other serious objections relating to the ETS to representatives of the European Union and its member states during June 2011, but has not received satisfactory answers to those objections.”


Unsurprisingly, the ATA welcomed the bill. “We commend Chairmen Mica and Petri and Ranking Members Rahall and Costello for their bipartisan leadership in joining the Administration in opposing the EU ETS scheme which is both illegal and bad policy. Subjecting airlines to the EU unilateral system will be counterproductive to the environment and will result in the loss of US jobs as it siphons money away from carriers, impeding their ability to invest in new and more efficient technology,” said ATA President and CEO Nicholas Calio.


“The ATA and our member airlines have a strong track record of reducing greenhouse gas emissions and a longstanding commitment to further improvements by leveraging operational, technological and infrastructure advancements.”


Oral arguments from the ATA were heard in the European Court of Justice on July 5 and a preliminary opinion by the Advocate General is expected to be delivered on October 6. Intervening on the side of the EU in the case were European and US environmental NGOs, including the New York-based Environmental Defense Fund (EDF).


Commenting on the proposed bill, EDF’s International Counsel Annie Petsonk said: “It’s simply baffling that these legislators are working so hard to keep US airlines in the dark ages of relying on inefficient airplanes and outdated technologies. This is an aggressive attempt by a few House members both to worsen pollution by scuttling a pioneering environmental law and force US airlines to become scofflaws.


“This bill would inflame ongoing negotiations between the United States and Europe and usurp the President’s constitutional authority to handle matters of international law.”


EDF maintains that contrary to the airlines’ public stance, the EU scheme would actually benefit them financially, citing the ATA’s own analysis in its ‘Financial Impacts of Extending the EU ETS to Airlines’ report.


Meanwhile, at a July 14 session of the Environment Committee (ENVI) of the European Parliament, MEPs expressed concerns that the European Commission was wobbling under the recent concerted pressure from China, Russia and the United States for their airlines to be exempted from the EU ETS.


In a briefing to MEPs, the Director General of the Commission’s climate action directorate, Jos Delbeke, explained that he was surprised that since the Directive had been passed back in 2008 so much heat was being generated at this late stage. He said implementation of the directive was on track and as planned. He hoped the ECJ would come up with a ruling of substance and the case would bring the necessary clarity.


He confirmed that bilateral talks were taking place with China, Russia and the United States, and discussions with the latter in Oslo recently had led to a “fruitful debate”. Delbeke assured concerned MEPs that the EU would not be bullied on the issue but admitted the discussions were “fairly complicated”.


German MEP Peter Liese, the rapporteur who steered the Aviation EU ETS directive through the parliament, joined other MEPs in commending Delbeke and the Commission on standing firm. “We adopted this legislation for very good reasons. If we give in to China and the US now we in Europe will be setting an important precedent,” he said.


Liese and other MEPs queried how the Commission was defining ‘equivalent measures’.


Delbeke responded the EU was willing to exempt incoming flights from third states that implemented equivalent measures but there was an important principle at stake in which there must be equal treatment for all airlines, regardless of where in the world they came from, and that no preferential treatment could be given to one country or one airline over another.


He said it would be difficult to assess equivalency but the Commission had demonstrated in other dossiers a capability in this respect. “But so far in our discussions, no proposals have been brought forward, so we are not in a position to make assessments,” he added.


Clarifying the Commission’s position, the EU spokesperson for Climate Commissioner Connie Hedegaard, Isaac Valero-Ladron, told GreenAir Online that equivalent measures was the only avenue the Commission is exploring in discussions with other countries.


“Emissions from airplanes affect the climate regardless of their nationality,” he said. “Aviation is a competitive business, where on any given route, all carriers must be treated equally regardless of their nationality to ensure legality, avoid distortions of competition and maximise the environmental impact.


“The EU has an open approach to what might constitute equivalent measures – the overriding goal is of course that it must have comparable environmental effects so that it can be justified in excluding it from the EU scheme.”




European Union Emissions Trading Scheme Prohibition Act of 2011 bill (pdf)

Air Transport Association statement

Environmental Defense Fund statement

European Parliament – Environmental Committee session video (briefing by Jos Delbeke starts at 12:02:00)



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