Fri 18 Dec 2009 – With imperfect timing as nations attempt to reach a global solution on international aviation emissions in Copenhagen, three US airlines, American, Continental and United, together with the Air Transport Association of America (ATA), have mounted a legal challenge against the UK Government concerning the Aviation EU Emissions Trading Scheme (EU ETS). The US airline sector has consistently objected to the inclusion of their flights to and from Europe into the EU ETS arguing that this was in contravention of the Chicago Convention, the international treaty covering aviation. Earlier this week, IATA chief Giovanni Bisignani warned the EU ETS would not start on time in 2012 as international challenges would be made against it.
All airlines serving EU airports have been required to submit by now emissions monitoring plans to their allocated Competent Authority and must start monitoring and reporting their traffic and emissions data from 1 January 2010, just a few week’s time. Following advice from both IATA and ATA, airlines opposed to the EU ETS have so far “complied under protest”.
Legal action cannot be taken against the EU itself, only by one state against another and as the UK has now transposed into law the first stage regulations of the EU Directive it has become the target since the three airlines concerned come under UK administration in respect of the scheme.
“ATA filed the legal action in the UK challenging the first stage of the Aviation Greenhouse Gas Emissions Trading Scheme (ETS) Regulations,” said ATA spokesperson Victoria Day. “We brought this action in order to preserve our members’ rights to challenge implementation of the EU ETS as applied to aviation and we continue to believe that the best resolution of this issue is through international negotiations or an action brought through the International Civil Aviation Organization (ICAO).”
That the action should be brought during the Copenhagen climate change negotiations in which international aviation emissions are being discussed is a coincidence, said Nancy Young, ATA’s Vice President International Affairs. She told GreenAir Online that the UK statute of limitations to challenge the first set of UK regulations transposing the Aviation EU ETS directive was to expire on 17 December. “We had to file in order to protect the claim,” she said.
Arguments over the legality of including aircraft operators from outside the EU into the EU ETS have continued ever since the scheme was proposed over two years ago, with legal advice from respected authorities supporting both sides.
A European Commission official told Aviation Week magazine that the UK could refer the matter to the European Court of Justice for an interpretive ruling. Disputes under the Chicago Convention should also be brought before ICAO.
The London court filing says the UK regulation “violated the US-EU bilateral Air Transport Agreement of April 2007 and the Kyoto Protocol”, according to a Bloomberg report. The suit has been brought against the UK Secretary of State for Energy and Climate Change (DECC).
A spokesperson for DECC told Bloomberg: “We are very disappointed that these US airlines have decided to take legal action against the EU Emissions Trading System. We will robustly defend the EU legislation that the UK called for in order to tackle aviation emissions.”
Earlier this week, IATA Director General Giovanni Bisignani told ATWOnline that he did not expect the EU ETS to start in 2012 as scheduled owing to legal challenges he believed would come from the US, Japan, China and others. Bisignani said international aviation’s inclusion in the EU ETS was “simply illegal”.
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