Having lost a challenge at the European Court of Justice, the couple of dozen countries that oppose having to buy emissions permits from the EU for flights involving European airports have said they hope to challenge the EU system through the WTO. But Lorand Bartels of Cambridge University, a specialist in the WTO, says such a challenge would probably fail.
Bartels, who made his comments to the International Centre for Trade and Sustainable Development last month, said it would be relatively easy to argue that forcing aviation into emissions trading does break global trade rules. But the WTO allows exemptions for environmental reasons, and on most points he says environmental arguments in favour of the ETS would justify the exemption.
Bartels says any complaint at the WTO would have to show that the EU could have achieved the same environmental goal using another means that is 'both reasonably available and less trade-restrictive than the measure adopted'. But with the International Civil Aviation Organisation rejecting all forms of environmental action in global aviation apart from emissions trading, it is hard to see what other measures would have been acceptable.
Bartels does identify one flaw in the ETS. He says the rule that counts emissions only from that last airport before EU airspace means stopover flights are treated more leniently than direct flights. For example, a direct flight from Los Angeles to London would cause fewer emissions than if it stopped in New York, but the stopover flight would only be charged for emissions from New York to London.