European Court’s Preliminary Opinion Supports Legality of EU Law That Curbs Aviation Pollution

Brussels/ London/ Washington D.C. —

A transatlantic coalition of environmental groups applauded today’s European Court of Justice’s Advocate General’s preliminary opinion, which supports Europe’s right to tackle carbon emissions from airlines that use its airports. The coalition said the preliminary opinion was very encouraging. The Court is expected to hand down its final opinion in early 2012.

Aviation is one of the fastest-growing sources of greenhouse gas emissions, rising 3 to 4% per year. (Zach Stern)

In a thorough and comprehensive opinion, addressing all issues referred to the Court, the Advocate General called the airlines’ challenges “unconvincing”, “untenable”, “erroneous” and based on a “highly superficial reading” of the Aviation Directive.

The opinion thoroughly dismisses the airlines’ argument that the EU Law violates sovereignty, pointing out that it is “by no means unusual for a State or an international organization also to take into account in the exercise of its sovereignty circumstances that occur or have occurred outside its territorial jurisdiction.”

Commenting on the argument that Europe should wait for a global solution, the opinion states “The EU institutions could not reasonably be required to give the ICAO bodies unlimited time in which to develop a multilateral solution.”

The EU Aviation Directive, the world’s only mandatory program to address emissions from aviation, will take effect in January 2012.

“This is an encouraging development. We are pleased that the Advocate General found our arguments, and those of the European Union and its member states, persuasive, and we look forward to receiving the Court’s final opinion,” said the coalition.

The coalition’s six participants include three U.S.-based groups (Center for Biological Diversity, Earthjustice, and Environmental Defense Fund) and three European groups (Aviation Environment Federation, Transport & Environment, and WWF-UK). All six groups are intervenor-defendants in the litigation.

The opinion of the Advocate General, an esteemed attorney appointed to the ECJ to provide an independent, unbiased opinion to the Court, will now be considered by the 13 members of the ECJ’s “Grand Chamber” who heard oral arguments on July 5, 2011. The judges begin their deliberations upon receiving the Advocate General’s opinion. The opinion does not bind in any way the final decision of the Court.

Airlines have argued that the EU law is discriminatory in some way, but the Advocate General states clearly:

"If the EU legislature had excluded airlines holding the nationality of a third country from the EU emissions trading scheme, those airlines would have obtained an unjustified competitive advantage over their European competitors. Such a course of action would not have been compatible with the principle of fair and equal opportunity laid down in Article 2 of the Open Skies Agreement and which also underpins Directive 2008/101 itself."

Finally, the opinion concludes that the Aviation Directive is not a charge or a tax, noting that it “would be unusual, to put it mildly, to describe as a charge or tax the purchase price paid for an emission allowance, which is based on supply and demand according to free market forces.”

The European Court frequently follows the recommendations of Advocates General.

Background:

Europe’s Aviation Directive, which includes aviation emissions within the European Emissions Trading System (EU ETS) from 1 January 2012, is a pioneering law that holds airlines accountable for their emissions associated with their commercial flights that land at or take off from EU airports. Aviation is one of the fastest-growing sources of greenhouse gas emissions, rising 3 to 4% per year. Until now, the sector has escaped regulations that would require emissions reductions.

Three U.S. airlines—United/Continental and American—and their trade association, Air Transport Association of America (ATA), challenged the legality of the aviation emissions trading system, as applied to non-EU airlines.

Reactions From Intervenors:

Tim Johnson, Director of the Aviation Environment Federation said: "The Advocate General’s report is a positive step towards ensuring that airlines operating from European airports will become accountable for their carbon emissions from 1 January 2012 as the world’s first regional initiative to limit greenhouse gas emissions from the aviation sector comes into effect."

Sarah Burt, Staff Attorney at Earthjustice said: “In the absence of an effective global measure for reigning in greenhouse gases from aviation, the EU law is a necessary step to address this significant and rapidly expanding source of pollution. We are pleased that the Advocate General’s opinion confirms the legality of this important action.”

Annie Petsonk, International Counsel at Environmental Defense Fund said: “Airlines operate in a global market, and the reality is that those markets will be increasingly carbon-constrained. It’s time for the U.S. airlines to provide leadership and demonstrate that we can compete in the carbon-limited markets of the 21st century.No lawsuit will stop climate change or its effects, so it’s time to move forward and implement the solutions already available: Europe’s Aviation Directive.”

Bill Hemmings, Programme Manager of Transport & Environment said: "The international community, aided and abetted by the airlines, has failed to make any progress on cutting aviation emissions in fourteen years despite innumerable meetings and negotiating sessions. So the airlines cannot have been serious when they called for international action instead of European leadership.That so many major airlines jumped on the bandwagon of criticizing the EU-ETS, an extremely modest measure equivalent to one cent a litre on (untaxed) kerosene, was just opportunistic and irresponsible.The aviation industry should now start tackling climate change with engineers, not lawyers."

Keith Allott, Head of Climate Change at WWF-UK said: "We are pleased that this advice will send a message that the ETS is entirely consistent with international law. In the absence of a global deal, ETS is a positive first step towards bringing runaway aviation emissions under control.To further enhance mitigation and adaptation, EU member states should dedicate revenues from this measure to climate action, especially in developing countries.”