Opening Testimoy Presented By ATA In European Court Of Justice

In the European Court of Justice Tuesday, the Air Transport Association of America (ATA) called for the European Union application of an Emissions Trading Scheme (ETS) to be dismissed and declared illegal. The ATA, which brought the action on behalf of all of its members, said in its argument that aviation greenhouse gas (GHG) emissions should be regulated on a global sectoral basis and that unilateral action by any country or group of countries violates international law.

As stated in ATA's testimony before the ECJ, "If the EU ETS regime implemented an international agreement agreed by third countries, as well as by the EU, we would not be here today. ATA challenges EU ETS because it is a unilateral measure, which has not been agreed by countries outside the EU, yet nevertheless applies EU law to third country carriers in third country airspace."

In applying the trading scheme to non-EU airlines, the EU is violating customary international law and several treaty provisions in the Convention on International Civil Aviation (commonly referred to as the "Chicago Convention"), which dictates that countries have sovereignty over the airlines in their own airspace. As proposed, the EU ETS provisions would regulate an entire flight from across the United States to the EU, even though the flight would be in EU airspace for only a tiny fraction of the journey.

ATA provided a vivid example of this in its testimony before the ECJ, describing the application of the EU ETS to a flight by one of its members, leaving from San Francisco and landing at London Heathrow. From before the aircraft begins to taxi from the gate in San Francisco, the EU emissions rules apply, however as a percentage of total emissions, 29% take place in US airspace, including those on the ground at the airport. A further 37% take place in Canadian airspace, and a further 25% over the high seas. Only 9% of emissions take place in EU airspace.  Yet the ETS will impose a levy on this carrier, and may also impose an excess emissions penalty, based on emissions for the entire flight from start to finish.

In its case against application of the EU ETS to its airlines, ATA also outlined how the levies imposed by the scheme violate provisions of the Chicago Convention and U.S.-EU bilateral air services agreement and the Kyoto Protocol, which confirms that International Civil Aviation Organization (ICAO) has the authority to establish greenhouse gas policy for international aviation.

The ATA reaffirmed that its members are committed to continuing their strong record of fuel efficiency and GHG emissions savings. ATA and its member airlines are dedicated to developing commercially viable, environmentally friendly alternative jet fuel and working with manufacturers on advanced airframe and engine technologies. Additionally, ATA continues to urge the U.S. government to modernize the air traffic control system to improve efficiencies and reduce emissions.

The airline industry advocates for a single, global sectoral approach to be managed by ICAO, which stipulates that our industry achieve a 1.5 percent average annual improvement in carbon and fuel efficiency through 2020, carbon-neutral growth from 2020, subject to critical government infrastructure and technology investments such as air traffic control modernization, and an aspirational 50 percent reduction in CO2 emissions by 2050, relative to 2005 levels. 

In October 2010, ICAO adopted a resolution with targets and principles broadly consistent with the industry's global sectoral approach, demonstrating that the industry and governments are coalescing around a common platform for addressing aviation CO2 emissions at the global level. As proposed, the EU ETS limits airlines' ability to have capital to invest in ventures to develop alternative fuels, new fuel-efficient aircraft or equipment needed to operate in a satellite-based air traffic control system.

The high court is expected to issue a ruling by the end of 2011 or early 2012.

FMI: www.airlines.org