Isra-Mart srl: U.S. Lawmakers Say EU ETS Is Illegal

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House lawmakers are firing back at the European Union’s (EU) plan to regulate the greenhouse gas emissions of all aircraft—regardless of nationality—flying into and out of Europe.

Aviation is to be included in the EU’s Emissions Trading System (ETS) as of Jan. 1, 2012, but the European Union Emissions Trading Scheme Prohibition Act of 2011, introduced yesterday by Rep. John Mica (R.Fla.), would block U.S. civil aircraft operators from obeying the European statute.

“This unjust European Union emissions trading scheme is a clear violation of international law that puts U.S. carriers at a competitive disadvantage, kills U.S. aviation jobs and may lead to a trade war,” says U.S. Rep. John Mica (R-Fla.), chairman of the House Transportation and Infrastructure Committee. Mica says lawmakers are moving quickly to send a bipartisan message to their European counterparts because they have just six months to make a difference.

The legislation directs the transportation secretary to prohibit U.S. aircraft operators from participating in the ETS and instructs U.S. officials to negotiate or take any action necessary to ensure U.S. aviation operators are not penalized under a unilaterally imposed ETS.

Lawmaker complaints against the ETS are many. For starters, Mica and other lawmakers met in Brussels on June 28 with the European legislators who drafted the ETS. “They don’t have all the details,” Mica says, about how, specifically, the fines would be imposed on U.S.carriers. Lawmakers say they also don’t know what the EU will do with the fees it collects.

Rep. Nick Rahall (W.Va.), the top Democrat on the committee, says he is upset that the EU moved forward without adequately consulting ICAO and has wrongly equated inflight emissions emanating from the western U.S. with those coming from the East Coast. The change could effectively shut down transatlantic flights starting from Los Angeles or Chicago, according to the lawmakers.

The bill may be more of a symbolic gesture than legislation with teeth, as the Senate is not moving forward with a matching bill of its own. “We wanted to get consensus on the House immediately,” Mica says. “Time is of the essence.”

Symbolic Gesture

Proponents of airline inclusion in the EU ETS were not surprised by Mica’s bill. “I think the airlines are feeling rather desperate here,” said Annie Petsonk, international counsel for the Environmental Defense Fund. Based on the questions the European Court of Justice panel asked earlier this month, “It looks like they’re headed to affirming” the EU ETS, she said.

Petsonk said the bill would force the Obama administration’s hand on a subject on which it has tried very carefully not to take a legal position. While the administration objects to U.S. carrier inclusion in the ETS, it has not called it illegal, she says. “The airlines are trying to force the president’s hand here.”

The U.S. government under both the Bush and Obama administrations consistently has said the inclusion of U.S. carriers in the ETS is inconsistent with both the Chicago Convention and the landmark U.S.-EU Air Transport Agreement, says John Byerly, former State Dept. lead negotiator on the open-skies agreement. “The legislation proposed by Mica could disallow U.S. carriers from participating in the ETS and could spur the U.S. government to negotiate with Europe on the emissions scheme,” he says. “This is a very serious face-off, and airlines on both sides of the Atlantic could pay a huge price.”