Recent Developments Regarding Aviation Emissions

September 9, 2014 | Aviation


The European Union (“EU”) has suspended its emissions trading program for flights to and from non-European Union countries until 2016. In the meantime, other jurisdictions are advancing efforts to regulate emissions of greenhouse gases (“GHG”) from airliners.

In late April 2015, the U.S. Environmental Protection Agency (“EPA”) expects to propose an “endangerment finding” for greenhouse gas emissions from aircraft. This step is a prerequisite to the EPA’s regulation of aircraft under the U.S. Clean Air Act. The EPA intends to concurrently issue its advance notice of proposed rulemaking, including an overview of how the agency would implement aviation standards domestically pursuant to Section 231 of the Clean Air Act. It is expected that the standard would apply only to new aircraft.

In a related development, the International Civil Aviation Organization (“ICAO”), an agency of the United Nations, is expected to develop an international market-based emissions-reduction system for aircraft at its 2016 assembly. Those standards would facilitate U.S. and EU regulatory efforts and are expected to take effect by 2020.

The EPA’s announcement comes after Earthjustice, Friends of the Earth, and the Center for Biological Diversity announced plans to sue the EPA for its failure to undertake an endangerment finding for greenhouse gas emissions from aircraft. The environmental groups issued a notice of intent to sue on August 5, 2014, claiming that a 2011 court order required the EPA to make a mandatory endangerment finding or promulgate regulations to address greenhouse gas emissions from aircraft. The EPA estimated that it would take twenty two months to complete the endangerment finding. However, the notice of intent claims that the EPA has failed to take even the preliminary steps of issuing a draft endangerment finding for aircraft emissions or of reaffirming that another endangerment finding for greenhouse gases is unnecessary.

Airlines for America, an industry trade organization for U.S. airlines, and the Aerospace Industries Association, which represents aircraft and parts manufacturers, have both been supportive of the above-referenced ICAO efforts, noting that any new ICAO certifications for aircraft would likely require EPA and Federal Aviation Administration coordination because those agencies are responsible for regulating airplane construction, maintenance, and operation.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in Missouri and New York, and Bob Nicksin, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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