United, American Airlines, and their trade association, Airlines for America, gave up on a lost cause, a late and ill-conceived legal challenge to the European Union’s landmark law limiting global warming pollution from aviation.
While the airlines gave no explanation for abruptly dropping the case in the UK High Court in London, it’s likely their attorneys realized their efforts would be fruitless given the strength of the December 21 ruling from the European Court of Justice upholding the EU directive as consistent with international law.
After pursuing the case for more than two years and losing in the European court, the airlines filed papers asking permission to add new claims just before the case was scheduled to close. The High Court had planned to hear that request on Thursday, but yesterday the airlines withdrew this request. Although we are pleased this avoids a pointless legal challenge in the UK, it is disappointing that U.S airlines are refusing to accept the ECJ ruling, and may simply be moving the battlefield elsewhere.
Airlines, governments and non-governmental organizations agree that nations should reduce climate pollution from aviation through the International Civil Aviation Organization (ICAO). Europe has reiterated that a successful adoption of robust pollution reduction measures to address global aviation emissions at ICAO would enable the EU to amend its law.
Rather than continue to fight the EU, the airlines should use the opportunity to support a global deal for aviation, especially given the unexpected momentum created by ICAO Secretary General Raymond Benjamin’s proposal to agree, by the end of the year, on global measures to reduce aviation emissions.
Ironically, some in the aviation industry now appear to be trying to pressure the Obama Administration to bring a challenge under ICAO’s Article 84 procedure based on the same losing arguments the airlines intended to use in the London court. These industry representatives are also pressing the U.S. Congress to prohibit U.S. carriers from participating in the EU law.
The ICAO Secretary General has already signaled that an Article 84 challenge would slow the organization’s momentum toward a new agreement.
The better step is for the United States, Europe, and other countries to work together with airlines and civil society to craft a global solution and enforceable domestic measures.
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 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. On December 21, 2011, the European Court of Justice upheld the Aviation Directive, making clear that the pioneering law to reduce emissions is fully consistent with international law, does not infringe on the sovereignty of other nations, and is distinct from the charges and taxes subject to treaty limitations.
A transatlantic coalition of six environmental groups are intervenor-defendants in the litigation. The coalition includes 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).
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