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US EPA will let Trump-era aviation GHG standards remain for now

16 November 2021 Amena Saiyid

The US Environmental Protection Agency (EPA) has decided not to revisit the first-ever aircraft GHG standards that the Trump administration published 10 days before leaving office, much to the chagrin of environmental groups who are challenging this rule.

In a motion filed 15 November with the US Court of Appeals for the District of Columbia Circuit, the US Department of Justice said the EPA has decided against revisiting the regulation, which adopted the International Civil Aviation Organization (ICAO)'s fuel-efficiency driven CO2 standard that won't be enforced until 2028.

Instead, the EPA said it would press the ICAO for "ambitious new international CO2 standards" at the upcoming round of negotiations, its 41st Annual Assembly, as it is aware that "more action is necessary across the transportation sector and in the aviation sector specifically to significantly reduce GHG emissions."

Now that the EPA has decided not to take any action on the rule, the litigation proceedings will resume in court, which had been on hold pending EPA's request to give it time to decide whether to reconsider the rule or to rewrite it.

The 2021 regulation in question was challenged separately upon publication in early January by a California-led coalition of 11 states and the District of Columbia and a trio of environmental groups—Center for Biological Diversity (CBD), Friends of the Earth, and Sierra Club. Both sets of lawsuits challenged the EPA on similar grounds, contending that the agency's standards were outdated and ineffective, and lagged technology by at least a decade.

Largest unregulated sector

Section 231 of the Clean Air Act has authorized the EPA to issue appropriate emissions standards for dangerous pollutants from aircraft engines based on a reasonable assessment of aircrafts' contribution to GHG emissions and the technological feasibility of emissions controls.

EPA's most recent estimates, which date to 2019, show that US aircraft engaged in both domestic and international flights were responsible for 2.15% of total US GHG emissions of about 6.56 billion metric tons of carbon dioxide equivalent (mt of CO2e), down from 3% in 2018.

The aviation sector remains the largest source of unregulated transportation GHGs, and the US itself is the leading GHG emitter from this source, responsible for a quarter of global emissions from this sector.

"Every industry must do their part in the fight against climate change, and the aviation industry is no exception," according to California Attorney General Rob Bonta who is not prepared to back down from challenging the Trump EPA's decision to finalize standards that would result in "no reductions in aviation-related emissions as compared to business-as-usual." "We went to court because we believe these Trump-era standards are insufficient and unlawful, and we're committed to seeing this case through," Bonta's office said in a 15 November statement to Net-Zero Business Daily.

US plan for aviation emissions

At the just concluded UN climate conference in Glasgow, the US released its "United States 2021 Aviation Climate Action Plan" that set a net-zero goal for the US aviation sector by 2050. The plan envisions this goal will be reached through a mix of strategies that range from retiring older, less-efficient planes to optimizing flight paths and trajectories, and from expanded use of sustainable aviation fuel (SAF) to potential electrification of flights. It does not, however, mention the aircraft GHG rule that the EPA has decided to retain.

Included this plan is the US commitment along with 106 other countries to keep their total combined CO2 emissions from commercial aircraft at 2020 levels in subsequent years under the ICAO's CORSIA (Carbon Offsetting and Reduction Scheme for International Aviation). This is a voluntary emissions-trading program that was established in 2016 and took effect in 2021.

Under CORSIA, individual airlines can avoid increases in emissions through efficiency programs, or offset growth in their emissions by purchasing credits and blending sustainable aviation fuels (SAF) with traditional jet fuel.

In September 2022, the ICAO will meet to take the next step, which is to develop and ratify at its 41st Annual Assembly a long-term goal to keep the industry on track to support the 2050 Paris climate ambitions, using both CORSIA and any new standards that are adopted.

EPA evaluating opportunities for regulation

Aware of the criticism its action would generate in the wake of the UN COP26 climate conference where President Joe Biden touted his climate credentials, the EPA justified its decision to wait for the ICAO to adopt more stringent regulations than exercising its own authority.

"EPA recognizes that we have Clean Air Act authority independent of the standards to be negotiated at ICAO to set emissions standards for commercial aircraft. "We will be evaluating what opportunities for greater regulatory ambition exist through the commonsense exercise of our Clean Air Act authority," the agency said in a 15 November statement issued on its website.

That statement did not appease the environmental groups who have been after the EPA since 2010 to set GHG standards for the sector. The EPA in 2016 decided to write an aviation rule after finding that aircraft GHGs did endanger public health. However, the rule wasn't issued until the very end of the Trump administration's term.

ICAO's aircraft engine efficiency standard was introduced in 2017 and aligned with latest available technology. In August 2020, IHS Markit termed the standard "weak" because it prevents backsliding in efficiency gains rather than drives market innovation.

ICAO by its own admission has said it is not a global regulator and that any standards its Council adopts are meant to be taken up by individual countries based on their own regulations.

Vera Pardee, outside counsel for the Sierra Club, agrees. She told Net-Zero Business Daily 15 November that ICAO standards are meant to act as floors, not ceiling for standards. "They are inherently crafted to follow the technology, not lead them," she added.

There is no question that the "do-nothing" rule that EPA "rubber-stamped" in early 2021 are outdated.

As an example, she said the newly designed aircraft in 2019 will exceed the benefits of the standards that the US EPA will adopt by 6%, she added.

'Twiddled its thumbs'

CBD attorney Liz Jones said the aircraft GHG regulation was one of many the Biden administration had singled out for review, yet "the EPA twiddled its thumbs for nine months before deciding it would rather defend a do-nothing rule than set any meaningful limits on aircraft emissions."

Biden upon taking office on 20 January directed all federal agencies to review regulations issued under the prior administration that would conflict with the goal of tackling the climate crisis and protecting public health.

Likewise, Sierra Club Chief Counsel Joanne Spalding was scathing in her criticism of EPA's action.

"With the ink on the Glasgow Agreement not yet dry, the Biden administration's refusal to revise the current standard is truly disappointing," said Spalding who noted that air traffic is already close to returning to pre-pandemic levels and ever-increasing demand for flying lies just ahead. "Waiting for new international standards that would only continue to lag behind the industry's worst performers is no answer to the climate crisis," she added.

--With contributions from Kevin Adler of Net-Zero Business Daily.

Posted 16 November 2021 by Amena Saiyid, Senior Climate and Energy Research Analyst

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