Representatives of US airlines and the European Commission have again crossed swords on the legality of the emissions trading scheme at an environmental conference in Amsterdam on 1 September.
At a conference organised by non-governmental organisation Sustainable Aviation Network Europe (SANE), Nancy Young, the Air Transport Association of America's vice-president environmental affairs, reiterated the view that the ETS violates the Chicago Convention. That is disputed by David Batchelor, a policy officer at the European Union's Directorate General for Energy and Transport, who insists that the scheme is not inconsistent with any international obligations.
The USA has the option of pursuing opposition to the ETS through the dispute resolution procedures set out in the US-EU open-skies agreement. However, Young stresses that opposition to the ETS would not be confined to the USA and that other countries could open dispute proceedings bilaterally. Another option is to bring an Article 84 dispute to the International Civil Aviation Organisation, which has powers to act as a judiciary body. This mechanism was previously deployed by the USA in a dispute with the EU over hushkit regulations.
Young is confident that a Chicago Convention-based challenge to the ETS could be successful, despite a Dutch court's rejection of a similar challenge to the Dutch air passenger tax in July. The Dutch court's decision was "wrong", she says.
In defence of the ETS, Batchelor also makes reference to the Chicago Convention, explaining that mutual consent had not been sought by the EU on the grounds that any agreements reached with particular non-EU nations could fall foul of the convention's non-discrimination provisions.
There is disagreement not just on the legality of the ETS, but also on its efficacy. Young argues that the ETS is "inappropriate" for aviation, as cross-sector trading would mean that aviation, which has a good record in lowering its emissions, would end up subsidising innovations in less efficient sectors, such as the concrete industry. At the Amsterdam conference she and other speakers noted that dramatic rises in airlines' fuel bills had created a market incentive to seek environmentally beneficial reductions in fuel burn.
Batchelor dismisses any assumption that increasing fuel prices obviated the need for an ETS. Regardless of movements in fuel price, there remains a need to internalise the external costs that aviation imposes on society with its damaging carbon dioxide emissions. Advances in standards, technology and air traffic management would not be sufficient to achieve a targeted 20% reduction in greenhouse gas emissions (from 1990 levels) by 2020. Market-based measures are also required, he says.
It is expected that the ETS will be formally endorsed by the Council of the EU in December, and that international negotiations will follow in the run-up to its implementation.
Source: Flight International
