Aviationís emissions problem

By David Hodgkinson
Associate Professor, School of Law, University of Western Australia
Posted on 29 August 2012
Filed under Carbon Reduction, Politics

Earlier this month (August 2012) the Commonwealth government and the coalition both supported a motion by the (conservative) National Party calling on Australia to “use all political, diplomatic, and legal tools at its disposal” to ensure that the EU’s emissions trading scheme (ETS) is not applied to Australian aircraft.

For a moment, it appears, aviation brought the Commonwealth government and the opposition together on climate change policy—no matter that, subsequently, it appeared that the Commonwealth would not join a World Trade Organisation challenge to the EU ETS as it applied to aviation.

The Commonwealth’s support for the motion was additionally curious because, while international airlines (led by those in the US and China) oppose the inclusion of aviation in the EU ETS and unsuccessfully challenged its legality in the European Court of Justice last year, Qantas is complying with its EU ETS obligations and passes on its costs through ticket surcharges.

Qantas also faces carbon pricing in New Zealand and will likely participate in the Commonwealth’s ETS from mid-2013 through an ‘opt-in’ scheme.

And, like Qantas, aircraft leasing firms, it appears, are also taking account of the legality of the EU ETS. Such firms, according to the US Environmental Defense Fund, are including provisions in aircraft leases that state that lessees will operate aircraft in compliance with the EU ETS, and will bear the costs of non-compliance.

The main object of the Commonwealth’s climate change legislation is to give effect to Australia’s obligations under the United Nations Framework Convention on Climate Change (the UNFCCC) and its Kyoto Protocol (Kyoto) and to support a global response to address the climate change problem.

Under Kyoto, developed state parties to it ‘shall pursue limitation or reduction of emissions of greenhouse gases … from aviation … working through the International Civil Aviation Organization’ (ICAO). In other words, aviation is excluded from Kyoto. It leaves the aviation emissions problem up to ICAO, a UN agency.

Since Kyoto entered into force, however, ICAO has failed to reach any kind of consensus on a comprehensive approach to aviation and climate change. And yet it is the Commonwealth’s position—and the position of many other states—that ICAO remains the appropriate forum for the resolution of the international aviation emissions problem.

It is also the failure of ICAO in terms of aviation that led to the EU taking action to include aviation in its ETS. And yet ICAO, late last year, endorsed a paper approved by the US, China and India (and it takes a lot to bring these states together on a climate change matter) which called on the EU to exclude non-EU carriers from the EU ETS.

Further, the US House of Representatives passed legislation that would make it unlawful for US airlines to comply with the EU law, the effect being that an airline flying to and from Europe would break either an EU law or a federal US law. And a US Senate committee last month advanced legislation (the European Union Emissions Trading Scheme Prohibition Act) that would enable the US transportation secretary to prohibit participation in the EU ETS by US airlines.

And all of this against a background (on IPCC calculations) where aviation’s contribution to total emissions, estimated at 3%, could be as low as 2% or as high as 8%. And its contribution is growing.

There are good arguments to be made that, given unsuccessful international climate change negotiations through the UNFCCC and Kyoto, one alternative approach is to break the climate change problem up into different pieces (or industry sectors) and perhaps more effectively address the pieces in separate fora—a ‘bottom-up’ approach, as it were.

The international aviation experience to date regarding emissions does not bode well for even this approach. Nor does recent domestic aviation experience in the United States and Australia.

David Hodgkinson is an associate professor at the University of Western Australia and an aviation lawyer with national law firm Clayton Utz. He leads an international project which seeks to address the climate change displacement problem.

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