Pushing EPA to regulate aviation greenhouse gas emissions

Photo: International Civil Aviation Organization

Photo: International Civil Aviation Organization

On August 5, two environmental groups sent notice of intent to sue the Environmental Protection Agency for failure to comply with a court order that would lead toward regulation of greenhouse gas emissions from U.S. aviation. EPA has long delayed taking any steps to apply its Endangerment Finding to aircraft emissions. The groups first petitioned EPA to take action in 2007, the same year our report on the federal NextGen aviation planning program charged that the Bush administration was making a deliberate effort to disconnect aviation planning from the global warming problem. It seems that, as far as taking meaningful action is concerned, the Obama administration has continued to kick this can down the road.

Greenwire reported on August 5 (by subscription):

The Center for Biological Diversity and Friends of the Earth, which is represented by Earthjustice, filed a motion of intent to sue today to push EPA to promulgate rules for the aviation sector, citing a March 2012 order by a federal court directing the agency to consider whether aviation emissions contribute to climate change and should be regulated. The agency said at the time that it would take it 22 months to make that determination, and the groups note that it has exceeded that. …

The green groups argue that EPA should promulgate a rule for aviation emissions because they constitute 11 percent of the transportation sector’s carbon and are growing, and because it has already found that heat-trapping emissions are a danger to public health and well-being.

Full text of the letter is here. The letter includes this:

Section 231(a)(2)(A) of the Clean Air Act … requires the United States Environmental Protection Agency (EPA) to determine whether emissions of greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. … If EPA determines that these emissions do contribute to such endangerment, it must propose and adopt standards to limit those emissions. … This mandatory duty was brought to EPA’s attention in 2007, when Earthjustice, on behalf of Friends of the Earth, the Center for Biological Diversity, Oceana, and the Natural Resources Defense Council, petitioned EPA to take this action. In July of 2011, the U.S. District Court for the District of Columbia confirmed the mandate, holding that EPA’s duty to make an endangerment finding is compulsory. … Because, more than six and a half years after it received petitions to do so, EPA has still not made the mandatory endangerment finding or promulgated regulations to address greenhouse gas emissions from aircraft under section 231, the Center for Biological Diversity and Friends of the Earth intend to file suit for unreasonable delay. …

[In June 2012,] EPA acknowledged its obligation to conduct an endangerment finding for greenhouse gases from aircraft engines … Two years later, EPA has not yet taken even the preliminary step of issuing a draft endangerment finding for aircraft emissions (or of reaffirming that another endangerment finding for greenhouse gases is unnecessary, as EPA has repeatedly done in connection with regulating greenhouse gases from other sources2). …

By 2008, aviation was viewed as the fastest growing source of carbon dioxide emissions worldwide, increasing at a rate of nearly 5 percent per year.6 The International Civil Aviation Organization expects the trend to continue, projecting 4.9% annual growth in air passenger traffic7 and 5.2% annual growth in air freight traffic from 2010,8 more than doubling global air traffic by 2030.9 …

Because of the significant role that aircraft play in global climate change, and in light of the exponential growth projected in air travel, the United States must lead the way in regulating global warming pollutants from these sources. …

Based on this unreasonable and unjustifiable delay, the Center for Biological Diversity and Friends of the Earth intend to file suit against EPA 180 days from the date of this notice.

We first got interested in the U.S. government’s evasiveness on the problem of aviation and global warming in 2007, when an inside source called our attention to how the Bush administration was suppressing consideration of greenhouse gas emissions in connection with NextGen, a long-term, multiagency planning effort initiated that year and aimed at enabling the tripling of U.S. aviation traffic. The Bush administration tasked the Federal Aviation Administration (FAA) with implementing this Next Generation Air Transportation System. The FAA failed to consider climate change in any of its NextGen planning processes.

A report by Climate Science Watch released in July 2007 first publicized this failure by the FAA. The report concluded that the NextGen planning process involved a “deliberate effort to disconnect aviation planning from the global warming problem.” It highlighted the administration’s inattention to quantifying greenhouse gas emissions from aircraft in strategic planning for the development of the industry, and cautioned that continuing this omission could contribute to harmful effects on the environment and on the future of U.S. aviation. We called for aviation emissions to be addressed in U.S. climate change policy and regulation, and argued that federal aviation planning should focus on systematically reducing greenhouse gas emissions in order to position U.S aviation to meet future  requirements. (Full text of the report: NextGen Air Transportation System Progress Reports Ignore Climate Change).

Five months later, in December 2007, a coalition of environmental groups including Earthjustice, Friends of the Earth, the Center for Biological Diversity, and the Natural Resources Defense Council filed a formal petition calling on EPA to exercise its authority to regulate greenhouse gas emissions from domestic and foreign aircraft departing or landing at American airports. We called this action a significant step forward in advancing the issue of aviation and climate change, which had already been neglected for too long in the debate on climate policy. (Our report was cited as a source in the section of the petition on “Improved Aviation Operations and Procedures Can Reduce Greenhouse Gas Emissions Significantly.”)

EPA subsequently dragged its feet on responding to the petition. On July 5, 2011, a federal court ruled that EPA is required to make an Endangerment Finding for aircraft, i.e., that the agency must formally determine whether GHG emissions from aviation endanger public health and welfare. The agency did not act on this requirement, so the environmental groups took the agency back to court in March 2012.

Although the EPA determined that emissions from motor vehicles endanger public health and welfare, the EPA asserted that it would need to do a new Endangerment Finding specifically for aircraft, which would be time-consuming. They claimed the agency would have to start from scratch, make all the scientific findings all over again, respond to comments, and it would take them a couple of years. In the appeal, Earthjustice attorney Sarah Burt likened this process to re-proving the existence of the atom over and over again, while the knowledge is already at your disposal. Burt told us, “In the power plants rule EPA says, ‘if we have to do a CO2 Endangerment Finding for power plants we can just rely directly on the one we already did for Section 202 sources.’ This statement directly contradicted what EPA said in our case.”

The EPA argued that the agency has other regulatory priorities that take precedence over addressing aircraft emissions, and that the agency is focusing on the largest sources of greenhouse gas emissions, including motor vehicles and power plants. Thus, under both Bush and Obama, EPA has delayed for the past seven years on dealing with regulation of emissions of greenhouse gases from aviation — a delay that has now gotten to the point of violating its statutory responsibility under a court order.

In fact, the Obama administration doesn’t want to regulate emissions from U.S. aviation. Greenwire noted on August 5:

The Obama administration frequently has been at odds with its environmental allies over how to curb aviation emissions linked to climate change. The administration has opposed the European Union’s bid to unilaterally limit emissions from flights that pass through Europe under its Emissions Trading System, while greens support it. Instead, the administration has pushed for an international market-based measure under the auspices of the International Civil Aviation Organization. The international body last year did agree to craft such a mechanism by 2016 that would take force by 2020.

But advocates note that national action has spurred or strengthened international programs in the past, and CBD and FOE are urging EPA to promulgate rules in the meantime. They say they are skeptical that the ICAO process will yield meaningful reductions given the amount of influence that industry has over the body.

Reuters reported on July 25:

The newly appointed U.S. representative to the United Nations’ International Civil Aviation Organization (ICAO) is optimistic that member states will agree to measures that will curb airplanes’ carbon emissions. …

[U.S. ICAO rep Michael] Lawson said that the efforts to regulate airline emissions globally were a part of the Obama administration’s Climate Action Plan.

We note that the very last sentence of the Climate Action Plan, on p. 21, concludes with this single clause:

; and at the International Civil Aviation Organization, we have ambitious aspirational emissions and energy efficiency targets and are working towards agreement to develop a comprehensive global approach.

Well, “working towards agreement to develop a comprehensive global approach” doesn’t sound like something that is likely to produce substantial emissions reductions any time soon, does it? Sounds like another diplomatic process almost guaranteed to tie things up for a number of years without anyone having to implement serious commitments.

It must be noted that, clearly, EPA is constantly under political siege by anti-regulatory interests, and has to battle for every step forward the agency is able to take. They have been one of the bright lights in an administration that can’t point to very many of those. Still, the environmentalist litigation is in the public interest.

Sure, it would be politically inconvenient for the White House political controllers to ease up on the brake pedal and let EPA do its job on this one. But it’s evident from years of experience that, in order to get it to do the right thing, this White House needs continual pressure from the progressive side. If they think they deserve to be regarded as strong on climate policy, they need to stop copping out on the aviation sector.

Earlier posts:

Climate Science Watch report: Federal NextGen aviation planning is ignoring global warming (July 18, 2007)

States and enviro groups petition EPA to regulate aviation greenhouse emissions (December 5, 2007)

Aviation and climate change: flying blind (November 13, 2012)

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