The Wild West of Green House Gas emissions

The Wild West was reputed to be an area of lawlessness. So I have used the term in this blog to refer to large Green House Gas (GHG) emissions not subject to any laws or regulation, and not included in national emission totals. These are the emissions created by international air traffic. Although large, these emissions are not incorporated into the world totals of GHG, as calculated by the UN. They are truly beyond the frontier of regulation, carbon trading or taxation.

The air lines wish to keep it that way, and so do their customers who would be paying another surcharge on top of their airfare, this time for carbon trading. The air lines, supported by their industry associations, have resorted to court actions, pressure on governments and legislative activity to stop the European Union (EU) from applying an EU Emissions Trading Scheme to air lines whose flights arrive at or depart from an EU airport.

American Airlines and United Continental brought a Court action (now in the European Court of Justice in Luxemburg) for a declaration that the EU arrangement was contrary to international law (including the Kyoto Convention to which the US is not a party!). The EU Advocate General rejected this claim in an opinion delivered to the Court. In most instances, the European Court of Justice will accept the opinion of the Advocate General on issues of law.  So the chances of the airlines succeeding seem slight.

In September 2010 President Obama requested that US airlines be exempted from the EU law. The European Commission responded that the law was in place and was important to meeting the EU’s Kyoto commitments. Despite the US protest, the EU intended to proceed with its implementation.

The legislative activity is unusual. In September 2011 the US House of Representatives passed H.R. 2594, the European Union Emissions Trading Scheme Prohibition Act of 2011. The main provision of this Act H.R. provides:

“The Secretary of Transportation shall prohibit an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilaterally established by the European Union.” (Put that in your pipe, EU, and smoke it!)

This legislation may not give airlines a defence in law to the enforcement of the EU emissions trading scheme. Still it raises the prospect of international disagreement, or even an all out trade war (the Wild West again), which may persuade the EU to seek a consensus agreement. This outcome would be much preferred by the air transport industry.

Canada, which is having its own spat with the EU on the tar sands, initially stayed out of this dispute, but has just recently joined with the US and other nations to lobby for a consensus resolution to the problem.

Peter Jones

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