Aviation has – and has had for some time – an emissions problem. That problem was illustrated in dramatic fashion last week when it was announced that the European Union would freeze until late next year the inclusion of international aviation in the EU’s emissions trading scheme.
Aviation has been included since the beginning of this year.
The EU scheme attracts non-European airlines flying to and from the EU.
The EU said it would look to the UN body responsible for international aviation, the International Civil Aviation Organisation, to address the problem. ICAO’s General Assembly is in September-October next year. ICAO is charged under the Kyoto Protocol – adopted in 1997 – with dealing with the aviation emissions problem and has yet to find any solution.
In the event that ICAO does not successfully address the emissions problem (howsoever success is defined) at its General Assembly, the EU ETS legislation would apply again to international aviation from 2013 onwards.
Yet, one day after the EU’s announcement, the US House of Representatives passed legislation, which now goes to President Obama for his signature, which prohibits a US aircraft operator from ever participating in the EU’s ETS.
The Chinese government earlier this year barred its airlines from joining the EU ETS.
These are interesting times for international aviation and climate change regulation, and challenging ones for ICAO.
The aviation emissions problem
The aviation emissions problem is a significant one. Aviation is a growing source of emissions, and those emissions are largely unregulated. Emissions from aviation are increasing against a background of decreasing emissions (or, at least, emissions regulation) from many other industry sectors.
Based on IPCC calculations, aviation’s contribution to total emissions, estimated at 3 per cent, could be as low as 2 per cent or as high as 8 per cent. And ICAO forecasts significant further emissions growth: against a 2006 baseline, an increase of 63 per cent to 88 per cent by 2020 and 290 per cent to 667 per cent by 2050 (without accounting for the impact of alternative fuels).
The International Civil Aviation Organisation
The EU’s announcement clearly defuses tension with the US (this week’s passage of legislation notwithstanding) and with major developing states such as China and India. They oppose the EU legislation and would clearly not have complied with it.
The stated basisfor the EU’s announcement is threefold:
-- The ICAO Council is setting up a high level policy group to deal with the emissions issue.
-- Options for a market-based mechanism must be reduced from three to one.
-- The Council had explicitly referred to a global market-based mechanism to address the aviation emissions problem.
But this hardly seems the stuff of which a global aviation emissions agreement is made.
And ICAO’S comprehensive failure to address the international aviation emissions problem to date does not augur well for any future solution.
Aviation and trade rules
In some respects this is all slightly curious. Under the main piece of legislation, Directive 2008/101/EC on the inclusion of aviation in the EU’s ETS, all flights (EU and non-EU) landing at or taking off from any airport within an EU member state must surrender emissions allowances equal to the emissions created from the entire flight.
However, most of these allowances – 85 per cent – are allocated to the airlines for free. The remaining compliance costs will be passed on to passengers (many of whom will have little choice to get to the EU other than by air travel).
Yet at the heart of the dispute leading to the EU decision last week is, as two US authors have noted, a matter of some significance. It is “the principle of whether nations may adopt climate change laws that have impacts on foreign companies offering goods or services in their territories”.
Put another way, can aviation and trade rules “seriously undermine efforts to prevent the disastrous consequences of unmanageable climate change”?
Aviation and the climate change problem
The difficulty in addressing the aviation emissions problem reflects in microcosm the difficulty in addressing the global climate change problem. The world just isn’t organised to deal with these kinds of problems. Climate change is a global problem, but there is of course no global government. Rather, there are sovereign states, the interests and concerns of which are very different – as the aviation emissions problem demonstrates.
This difference is recognised in one way, of course, by both the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol. The UNFCCC statesthat “developed” and “developing” states have “common but differentiated responsibilities and respective capabilities” in dealing with climate change. Under the UNFCCC it’s clear that developed countries “should take the lead in combating climate change” and its effects.
One alternative way forward would be to break the climate change problem up into different pieces, which could involve sectoral agreements – agreements between industry sectors, for example. In some respects, that’s what ICAO is attempting to do with aviation. It’s also what the EU is attempting to encourage by its announcement last week that it would look to ICAO (but not for long …) to craft an agreement to address emissions from the aviation sector.
But even here, efforts to deal with the aviation sector by way of addressing the climate change problem are themselves problematic. In terms of aviation, the Deputy Director of the Center for Climate Change Law at Columbia University said this:
“Countries are retrenching to protectionism when faced with the EU’s attempt to seriously address one major emitting source in an equitable manner, [which] suggests little hope that these same countries might soon take bold stances in committing to the long-term, deep emissions reductions necessary to avoid the worst effects of climate change.”
The EU Commissioner for Climate Action said last week that, finally, there is “a chance to get an international regulation on emissions from aviation.”
All the evidence suggests that it’s a slim chance and a forlorn hope.
David Hodgkinson is an associate professor in the Law School at the University of Western Australia and Special Counsel at national Australian law firm Clayton Utz.