A recent federal court hearing on regulation of greenhouse gases from aviation went unnoticed by the media. In a small federal courtroom in Washington, DC, on November 1, a legal battle was being waged between Earthjustice, representing a coalition of environmental groups, and the Environmental Protection Agency (EPA). Climate Science Watch spoke with Earthjustice attorney Sarah Burt after the hearing for a perspective on this lawsuit and on the EPA’s statutory obligation to regulate emissions from aircraft.

First, some context.  In February 2007, the federal government initiated a long-term, multiagency planning effort to enable the tripling of U.S. aviation traffic. The Bush administration tasked the Federal Aviation Administration (FAA) with implementing this new initiative, known as the Next Generation Air Transportation System (and here), or NextGen.  Aviation has become one of the fastest growing industries around the world, with demand predicted to only increase in the coming decades.

The overall purpose of the multifaceted NextGen program is to reduce inefficiencies in air travel.  By updating technologies and processes for aircraft and air traffic management, NextGen is intended to allow for remarkable increases in air travel and shipping.  A worthy goal, no doubt most of the public would agree. Modern society is organized around a growing use of air travel. Upgrading aviation infrastructure, increasing efficiency, and reducing the stress and congestion so often associated with air travel are important priorities.

On the other hand, while the program promises greener skies through increased efficiency in minutes per flight, fuel costs, and increases in economic activity, the FAA fails to consider climate change in any of its planning processes.  NextGen would make us think that this project has many positive benefits for the environment and the economy, but it seems the project has missed its connecting flight, so to speak, on climate change.

A report by Climate Science Watch released in July 2007 first publicized  this failure by the FAA.  The report concluded that the NextGen planning process involved a “deliberate effort to disconnect aviation planning from the global warming problem.”  This lack of foresight has gone hand in hand with Congress essentially ignoring the role aviation (and global shipping) play in anthropogenic climate change.

In late 2007 a collection of environmental groups including Friends of the Earth, Center for Biological Diversity, and the National Resources Defense Council submitted a petition to the EPA asking the agency to issue rules under Section 231 of the Clean Air Act to regulate harmful emissions of air pollutants from aircraft that cause and contribute to climate change.  Given 180 days to respond, the EPA subsequently dragged its feet, ignoring its “legal and moral obligation to act quickly to protect the health and welfare of Americans,” according to Martin Wagner in a press release by Earthjustice back in 2008.

EPA has failed for the past five years to deal with regulating emissions of greenhouse gases from aviation.

In 2009 EPA determined that emissions of greenhouse gases endanger human health and the environment and established limits on CO2 emissions from cars and, later, from heavy-duty trucks. Industry groups filed suit challenging the motor vehicles Endangerment Finding and subsequent regulations but failed. In June 2012 a federal appeals court upheld EPA’s Endangerment Finding – a decisive defeat for the states and industry groups that had challenged the basis for regulation.

On July 5, 2011, a federal court ruled that EPA is required to make an Endangerment Finding for aircraft, i.e., that the agency must formally determine whether GHG emissions from aviation endanger public health and welfare.  The agency did not act on this requirement, so the environmental groups took the agency back to court in March 2012.

An Earthjustice November 1 press advisory noted:

On July 5, 2011, the court ruled that EPA has a mandatory duty to make an endangerment finding for aircraft, but on March 21, 2012, found that the agency’s delay in doing so had not yet been unreasonable.  The court deferred to EPA’s statements that the CO2 endangerment finding made in the course of regulating motor vehicles couldn’t be used or relied on when regulating planes, and that it would need to make a separate finding that CO2 endangers human health and the environment.  EPA said such a new finding would have to include a public notice and comment period and would take the agency considerable time.

But EPA presented a very different story when it issued a proposal to regulate CO2 from power plants in April 2012.  In that proposal, EPA said that once it has established that CO2 is an air pollutant that endangers human health and the environment, as it did when regulating motor vehicles in 2009, that finding can be used to regulate CO2 from other sources such as power plants.

The conservation groups brought these contradictory statements to the attention of the judge who had ruled against them in March and asked him to reconsider his earlier ruling.

The judge agreed and heard arguments from both sides in federal district court in Washington, DC, on November 1. The groups asked the judge to reverse his earlier ruling and instead order EPA to consider whether CO2 pollution from aircraft warrants regulation.

Although the EPA determined that emissions from motor vehicles endanger public health and welfare, the EPA asserted that it would need to do a new Endangerment Finding specifically for aircraft, which would be time-consuming.   They claimed the agency would have to start from scratch, make all the scientific findings all over again, respond to comments, and it would take them a couple of years.  In the appeal, Earthjustice attorney Sarah Burt likened this process to re-proving the existence of the atom over and over again, while the knowledge is already at your disposal.

Burt said, “In the power plants rule EPA says, ‘if we have to do a CO2 Endangerment Finding for power plants we can just rely directly on the one we already did for Section 202 sources.’  This statement directly contradicted what EPA said in our case.”  The EPA can rely on the scientific evidence from the previous Endangerment Finding and apply it to this specific source, new power plants.

“The EPA moved to dismiss the suit on the grounds that it is not required to do an Endangerment Finding for these sources,” Burt said.  The Endangerment Finding would determine whether greenhouse gas emissions from aviation threaten the public health and welfare of current and future generations. Although the finding itself doesn’t impose regulations for the specific industry, if the finding is positive it triggers a requirement that the EPA regulate.

According to Burt, the law is in her side’s favor due to specific wording in the Clean Air Act: “Section 231 for aircraft states that the administrator ‘shall’ regulate pollution that he determines endangers public health and welfare” — the key word being “shall.”  The DC court agreed with Burt that this language created a duty to proceed with an Endangerment Finding for aviation.

The EPA argued that the agency has other regulatory priorities that take precedence over addressing aircraft emissions.  EPA representatives stated that aviation emissions represent roughly 2.5% of total US carbon emissions and that the agency is focusing on the largest sources of greenhouse gas emissions, including motor vehicles and power plants.

The environmental groups countered that this rationale is just an excuse for undue delay.  “EPA has already done the work necessary to determine whether greenhouse gases harm public health and welfare,” said Burt.  “There is no reason to reinvent the wheel other than to justify taking another couple of years to comply with the statutory obligation.”

EPA is trying to delay doing an Endangerment Finding for aviation – or better, base regulation of greenhouse gas emissions from aviation on the original Endangerment Finding the agency reached in 2009 and is already using as a basis for regulating motor vehicles and power plants.  And the judge at the November 1 hearing indicated that he would not alter his earlier ruling, i.e., that he would not rule that EPA’s current delay meets a standard of being unreasonable.

Where does this go from here? The EPA did state to the court that, if it initiated the process, it could do an Endangerment Finding, a cause and contribute finding, in 22 months. Now the waiting game begins — either EPA will do what it has previously said it can do, or, if it delays unreasonably, the issue will be brought up in the courts once again.

“So now we’re waiting for the 22 months to tick down,” said Burt.  “Either EPA will do an Endangerment Finding in 22 months, in which case we’re going to expect to see regulations because it’s inconceivable EPA will find that CO2 no longer endangers human health and welfare or that aircraft don’t contribute to it.  If they don’t do the Endangerment Finding in 22 months then we have a pretty good argument that now their delay is unreasonable because they said they can do it in 22 months and haven’t.”

Although the suit did not produce its desired outcome in this most recent round, the efforts by Earthjustice and the coalition of environmental groups it is representing may be nudging the EPA in the right direction.  We are still stuck on the tarmac waiting in the long line for the EPA to regulate emissions from aircraft, but with each plane slowly leaving we should be that much closer to liftoff.