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US EPA shying away from setting protective GHG standards for aircraft

29 June 2022 Amena Saiyid

Environmental groups and a coalition of 12 states are accusing the US Environmental Protection Agency (EPA) shirked its Clean Air Act duty in setting the first public health GHG standards for aircraft industry.

Four environmental advocacy groups—Center for Biological Diversity (CBD), Earthjustice, Sierra Club, and Friends of the Earth—contend EPA was more concerned with harmonizing the first GHG limits it set for aircraft with international aviation standards than meeting its congressional mandate to protect public health. They were especially concerned that the standards do not apply to existing aircraft.

"The standards that EPA set lag by more than 10 years and apply only to new aircraft. These standards will take decades to cover the US fleet and already lag existing technology," CBD staff attorney Liz Jones, who also is co-counsel for the groups, told Net-Zero Business Daily by S&P Global Commodity Insights 29 June.

The aviation sector is the largest source of unregulated transportation GHGs, and the US is the leading GHG emitter from this source, according to EPA.

Prior to the pandemic, the Federal Aviation Administration (FAA) said aircraft covered by the rule account for 10% of all US transportation GHG emissions (1.572 billion metric tons of CO2 equivalent (mt CO2e)) and 3% of total US GHG emissions (6.517 billion mt CO2e).

As the FAA is responsible for ensuring the safety and design of all US aircraft and compliance with EPA regulations, it proposed 15 June to align fuel engine efficiency standards with the EPA's aircraft GHG standards, which were finalized in January 2021.

US Transportation Secretary Pete Buttigieg called the FAA proposal an important step forward in reducing GHGs from the nation's airplanes and reaching President Joe Biden's goal of having a net-zero aviation sector by 2050.

Outdated standards

The environmental groups and a California-led coalition of 12 states and the District of Columbia are battling EPA over the latter's decision in January 2021 to adopt the International Civil Aviation Organization's fuel-efficiency driven CO2 standard. Given the imminent threat posed by climate change, the states and the groups say the ICAO standard already is outdated and won't be enforced until 2028. EPA proposed in 2020 to adopt the ICAO standard, which was set in 2017.

Both sides have filed briefs with a federal appeals court, which is currently reviewing them and will set a date for oral arguments sometime this summer or late fall. The environmental groups and the states want the court to vacate the rule, which the EPA and its backers say will set the aircraft industry even further behind the rest of the world in trying to curb GHG emissions.

The environmental groups allege EPA has failed to meet the explicit congressional mandate in Section 231 of the Clean Air Act, which states EPA "shall" set air pollution standards for any class of aircraft engines, which "may reasonably be anticipated to endanger public health or welfare."

The law goes onto say that EPA, after consulting with the Federal Aviation Administration, may set these standards, but only after considering the harmful effects of the air pollutants, the technology that can feasibly control them, safety, noise, time necessary to develop and apply the technology, and industry compliance costs.

International harmonization over public health

"EPA violated Section 231 when it ignored these statutory factors, elevating EPA's extra-statutory interest in 'international regulatory uniformity' over the factors Congress specified and nullifying them in the process," the environmental groups wrote in their 27 June response to the court.

The federal agency for its part has maintained that regulatory uniformity afforded by the ICAO is necessary to protect the US aviation industry against competitive disadvantages.

"Adopting domestic standards that are at least as stringent as international standards is necessary to ensure the unimpeded movement of US airplanes in international airspace," EPA wrote in its opening brief in May.

For the last 25 years, EPA said it has used that authority to adopt into domestic law the international pollutant emission standards negotiated between the 193 countries who are party to the Convention on International Civil Aviation.

However, the states challenging the 2021 regulation countered that EPA has failed to "connect this interest to the goals of the Clean Air Act or to the Section 231 factors; nor does EPA explain what those disadvantages are, let alone substantiate them."

Instead, the states said the only disadvantage that EPA articulated in its brief of pursuing more stringent standards was the "disruptive effects on manufacturers' ability to market planes for international operation."

Biden administration backs weak standards

At least a week before President Donald Trump left office in January 2021, EPA adopted the ICAO regulation, prompting the pair of lawsuits now before the US Court of Appeals for the District of Columbia (DC Circuit). Then in November 2021, EPA under the Biden administration informed the court that it would not revisit the regulation. Instead, the EPA said it would press the ICAO for "ambitious new international CO2 standards" at the upcoming round of negotiations at the 41st Annual Assembly, which is to be held 27 September-7 October in Montreal.

Although the agenda for the ICAO Assembly lists discussions about long-term aspirational goals, "there's definitely no guarantee that aircraft GHG emissions will be a priority at the ICAO negotiations," CBD's Jones noted.

Aircraft industry supports EPA

Intervening on behalf of EPA are the Boeing and the Aerospace Industries Association of America (AIAA). They argue Congress gave EPA "extraordinarily broad discretion" to set aircraft engine emission standards, "but prohibited EPA from adopting any standard that might jeopardize airplane safety—which makes eminent sense for vehicles that operate tens of thousands of feet in the air."

Boeing and AIAA—represented by a pair of former US Department of Justice attorneys: Thomas Lorenzen and Amanda Shafer Berman—also noted that Congress instructed EPA to allow the time necessary to apply the requisite technologies in light of their costs.

Contrary to the arguments made by the states and the environmental groups, EPA as well as the AIAA said Congress gave broad authority to the agency to set aircraft GHG standards and didn't constrain it to establish them against a certain threshold, as it did with other mobile or stationary sources of air pollution.

"Section 231 lacks comparable language requiring [the rule] to meet a particular threshold of protectiveness, emission reduction, or technological stringency, despite this clear evidence that Congress knew how to impose such obligations when it wished," EPA said.

This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.


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