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What’s the deal with EPA’s aircraft emissions ruling?


EPA: “Our number one goal is to secure a meaningful international standard” at ICAO.

Answering four key questions about the US Environmental Protection Agency’s move on commercial aircraft carbon-dioxide emissions

1. What gives EPA the authority to regulate commercial aircraft CO2 emissions? In 2007, a divided US Supreme Court ruled that the 1970 Clean Air Act granted EPA the authority to regulate automobile CO2 emissions. The ruling stemmed from a case brought by a number of states that rejected EPA’s assertion, made during former President George W. Bush’s administration, that the Act did not provide the scope for addressing CO2 emissions. Under the Act, EPA is obligated to address declared pollutants. As former EPA administrator Lisa Jackson once put it, “Once you know you have a pollutant and you know it’s endangering public welfare, then EPA must act.”

Based on the Supreme Court ruling, in December 2009 EPA issued a formal finding that greenhouse gasses including CO2 emissions “threaten the public health and welfare of the American people.” That finding led EPA to set new CO2 emissions standards for automobiles. Now EPA has taken what it calls a first step toward regulating aircraft CO2 emissions by “proposing” to find that such emissions contribute to climate change and endanger public health.

2. How does this relate to the ICAO process on aircraft CO2 emissions, which is supposed to lead to agreement on an international standard by February 2016? EPA has been involved in the talks at ICAO and points out that any ICAO standard would have to be adopted by EPA so it could be enforced domestically in the US. “We’d be acting in bad faith spending five years on this [ICAO] process and failing to move forward,” Christopher Grundler, the director of EPA’s Office of Transportation and Air Quality, told reporters during a conference call this week. Grundler said EPA wants there to be an accord at ICAO, in which case a formal finding by EPA administrator Gina McCarthy that aircraft CO2 emissions are a pollutant would simply lead to EPA adopting the ICAO standard. “Our number one goal is to secure a meaningful international standard” at ICAO, Grundler emphasized.

3. But doesn’t this move also add pressure to the ICAO negotiations? Yes, because the US has now set the wheels in motion, likely inexorably, to establishing a CO2 standard for commercial aircraft. If the ICAO talks fail, it would be hard for EPA to backtrack and say that aircraft CO2 emissions aren’t an endangering pollutant. Therefore, the US would likely move to act unilaterally if the ICAO talks blow up. Remember, the February 2016 deadline was essentially forced by the European Union threating to impose its emissions trading scheme on non-EU aircraft operating into the EU. So a failure at ICAO could very well lead to both the EU and the US setting their own commercial aircraft CO2 standards. (And if ICAO’s standard is considered weak, environmental groups in both the EU and the US are likely to apply pressure for standards tougher than ICAO’s.)

4. How does the next US presidential election factor into this? The timing of the regulatory process means that the final EPA aircraft CO2 standard won’t be implemented until the next US president is in office. “Should the [EPA] administrator make a final determination [that aircraft CO2 emissions are a pollutant], the earliest we’d be in a position to put out [a Notice of Proposed Rulemaking] adopting standards would be 2017, with a final rule a year later,” Grundler said.

This makes things a bit tricky. EPA may be starting the process now so that, should ICAO reach an accord and should a Republican succeed Barack Obama, it would be difficult for the new president and the next EPA administrator to refuse to adopt the ICAO standard. But that isn’t certain. Neither the United Nations, of which ICAO is part, nor environmental regulations are Republican favorites, to say the least. Again, this adds some pressure to the ICAO process: If an international accord on aircraft CO2 emissions can’t be reached during Obama’s tenure, which ends in January 2017, then the US under a Republican president may not be very interested in further negotiations at ICAO on aircraft CO2 emissions—and without the US, there is not much point to the talks. A Hillary Clinton EPA, on the other hand, will likely have a great deal of policy continuity with Obama’s EPA.

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