Now that the US Senate has failed to follow the House of Representatives with climate legislation and put a price on carbon, there is talk about what can be done by the executive utilising existing powers. Environmental NGOs are using the legal levers that exist to push this effort forward, and aviation is in the firing line. Earthjustice, Friends of the Earth and others are suing the US government to get it to regulate GHG emissions from ocean-going ships and aircraft.
They are relying on the 2007 decision Massachusetts v Environmental Protection Agency in which the Supreme Court ruled that the EPA was wrong to conclude that it had no power under the Clean Air Act to regulate carbon dioxide and other greenhouse gases as pollutants. It was also directed the EPA to review its decision not to regulate GHGs from cars.
Following that decision, in December 2009 the EPA issued an endangerment finding that:
“the current and projected concentrations of the six key well-mixed greenhouse gases–carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)–in the atmosphere threaten the public health and welfare of current and future generations.”
It also found that motor vehicle emissions needed to be regulated.
Alabama, Texas and Virginia are challenging that ruling as having been made in error of law.
In relation to aviation, the legal action by the NGOs seeks findings:
“the Clean Air Act requires that the Administrator “shall … issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
EPA’s failure to determine whether emissions of greenhouse gases from aircraft engines cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare pursuant to section 231(a) of the Act, … constitutes unreasonable delay ….
The NGOs seek declarations from the courts that:
Declare that EPA’s delay in determining whether emissions of greenhouse gases from aircraft engines cause or significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare pursuant to section 231(a) of the Clean Air Act, … is unreasonable; and direct EPA to issue such a determination within 90 days after entry of this Court’s judgment.
Declare that if EPA, upon making a determination as directed under paragraph F above, finds that emissions of greenhouse gases from new aircraft engines cause or contribute to air pollution which may be reasonably anticipated to endanger public health and welfare, then EPA must initiate rulemaking … to establish standards to limit such emissions.
The obtuse and tortuous approach to law making in the US may be an advantage here. It clears the politicians out of the way and allows litigation to direct change and potentially develop a meaningful regime. Some US lawyers are making this point. Here’s hoping.