US environmental NGOs respond with their own letter to US Administration over ICAO Article 84
Mon 6 Aug 2012 – Following a letter from aviation and travel industry groups last week urging the US government to file an Article 84 action at ICAO over the imposition of the EU’s emissions trading scheme on US airlines and aircraft operators, 16 US environmental NGOs have written to President Obama asking him to reject the call. The NGOs argue that a filing of the formal legal proceeding would undermine the Administration’s efforts in achieving a framework at ICAO to limit global warming pollution from international aviation. Far from enhancing ICAO’s ability to achieve meaningful results, an Article 84 would disrupt attempts at ICAO to accelerate that process, say the NGOs, which add the EU’s scheme was the one lever that had brought States together for the first time to engage seriously at ICAO.
The NGOs, which include Earthjustice, Environmental Defense Fund (EDF), Environment America, Greenpeace, NRDC, Oxfam, WWF, Sierra Club and the US Climate Action Network, say the call for the Article 84 filing was a means by the US airlines of reducing the likelihood that ICAO would take meaningful action on international aviation emissions reduction.
The July 30 letter from the industry, commerce and union groups to Secretary of State Hillary Clinton and Secretary of Transportation Ray LaHood said the ongoing failure to address the threat to US sovereignty by inclusion of US carriers into the EU ETS was weakening the credibility of the US government and urged the Administration to take Article 84 action and “all other action necessary to overturn this wrongful scheme.”
The letter’s participants described the scheme as “unlawful”, although the NGOs point out in their letter that the airlines’ arguments had been rebutted by the European Court of Justice, the equivalent of the US Supreme Court. “Because the EU Aviation Directive has been determined not to violate national sovereignty nor constitute a charge, there is no basis for an Article 84 action,” they said.
“Moreover, no Article 84 action has ever been resolved through official ICAO channels; if the goal of filing an Article 84 action is to prompt negotiations, it is unnecessary given that such negotiations are already underway.”
The United States did file an Article 84 action against the EU in 2000, following the passing of an EU regulation prohibiting the use of hushkits to reduce engine noise on aircraft at EU airports. Following the passing of ICAO noise standards for aircraft engines, a compromise was reached between the two sides. Pamela Campos of EDF said the case itself was not resolved but rather the US agreed to drop its claims after the EU modified its regulations and ICAO put in place new ‘balanced approach’ noise regulations.
“The dispute went on for about two years after the Article 84 was filed,” she said. “Our point in emphasising the lack of success with Article 84 is that a ‘litigation’ approach to fundamentally political disputes is unlikely to bring about a successful resolution.”
Rather than initiating Article 84 proceedings that would undercut ICAO’s prospects for making progress, the NGO letter calls on the Administration to work together with airlines and civil society to craft a meaningful global approach on carbon emissions from aviation.