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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outdated and ineffective, and lagged technology by at least a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