End of legal challenge to aviation in ETS, but will opposition now move elsewhere?

April 18, 2012

The coalition of American aviation interests that challenged the EU’s right to introduce emissions trading to air transport has abandoned its legal action. A group of six NGOs welcomed the decision, but said the airline coalition’s failure to accept December’s ruling by the European Court of Justice suggests the Americans may be moving the battlefield elsewhere.

Three airlines – or two once United and Continental had merged – and the US trade association Airlines for America launched their challenge two years ago, saying introducing flights into the EU Emissions Trading Scheme was illegal under international law. A ruling by the European Court of Justice on 21 December resoundingly rejected the US case, but the airlines then filed papers asking for permission to add new claims. These were due to be heard by a court in London last month, but the day before, the airlines withdrew their request, thereby abandoning their legal action. 

A statement from T&E and the five other European and American NGOs who fought the airlines’ legal action said the airlines had ‘given up on a lost cause’. The statement added: ‘Although we are pleased this avoids a pointless legal challenge, it is disappointing that US airlines are refusing to accept the ECJ ruling, and may simply be moving the battlefield elsewhere.’

Although the airlines gave no explanation for abandoning their legal action, there is pressure on the Obama administration to call on the International Civil Aviation Organisation (Icao) to use its ‘Article 84 procedure’, which gives the Icao council authority to decide on disputes that cannot be settled between member states. The USA would need to lodge a formal protest to invoke Article 84 and deploy basically the same arguments that failed with the ECJ. Icao’s secretary-general Raymond Benjamin has said he has no immediate intention of invoking Article 84. 

Airlines, governments and NGOs all agree that the best way to tackle global warming gases from aircraft would be through Icao. The EU has introduced emissions trading for aviation out of exasperation at the lack of action within Icao, but has said it would amend its legislation if there was a meaningful global deal to reduce aviation emissions. Benjamin has promised to present a proposal for such a deal by the end of the year.

A coalition of 26 nations led by Russia, China and India is still opposed to emissions trading for aviation, and some have threatened retaliatory action against European airlines. But the coalition appears not to be willing to take a unified course of action.