With the rest of the world's leaders repeatedly gridlocked in crafting a binding international climate change strategy, Europe has plowed ahead in tackling greenhouse gas emissions. The European Union designed its own emissions trading scheme, and starting Jan. 1, 2012, the piece targeting emissions from air travel is scheduled to go into effect.
The Aviation Directive would slowly cap emissions on all flights landing and taking off from airports inside the EU. However, the system focuses not just on the emissions that occur within European air space, but on those associated with the entire flight to and from European airports.
The idea has hit turbulence — and not from domestic opposition or intransigence by European carriers. American airlines are balking — with the help of Congress.
The case underscores the tough task of trying to address problems that cross all borders — like greenhouse gases — when everyone won't get on board.
United/Continental and American Airlines sued to block the EU law earlier this year, arguing that it constituted an illegal tax and that it circumvented the International Civil Aviation Organization, a United Nations body created in 1947 to oversee global airline issues. That body, however, has never produced a workable plan to curb airplane emissions. A preliminary decision from the European Court of Justice earlier this month ruled that the EU should not have to wait indefinitely for an international solution that may never come.
Monday night the U.S. House of Representatives passed a bill that would ban U.S. airlines from participating in Europe's emissions trading. The bill has no momentum in the Senate (and may be an international pressure tactic more than anything else), but the House version poses a perplexing scenario: if it became law, U.S. airlines would be forced to either violate American laws, or European ones.
None of this bodes well for international cooperation on a host of other emissions sources that have nothing to do with airplanes, although airplane emissions have long posed particularly vexing problems for those who would regulate them. It's been unclear, for example, who should be responsible for emissions over the high seas or how airlines should handle over-flight issues.
"If I'm flying from London to Beijing, and I'm over-flying Russia for a significant portion of that flight, but I never land in or take off from Russia, how is Russia supposed to take account of my emissions?" asked Pamela Campos, an attorney with the Environmental Defense Fund. That advocacy organization, along with a dozen other environmental groups, supports U.S. participation in the program.
"You can very easily imagine the mess around trying to say, for instance, that we're going to start charging sales tax on flights within the U.S. for the water bottle or sandwich that you buy, but the sales tax that you pay is determined by what state you're flying over."
Unable to answer such questions, the framers of the global-warming-focused Kyoto Protocol kicked the problem to the International Civil Aviation Organization, whose officials spent 15 years trying to figure out what to do before the EU struck out on its own.
"As a norm, when you go to a friend's house to play, you play by their rules, you are in their home — that's what Europe has done," Campos said. This is exactly what the U.S. does when it requires international flights into American cities to comply with U.S. national security standards. The EU scheme was upheld in the preliminary decision in part because it doesn't discriminate between countries of origin or airline nationalities; America's airlines must comply just as Chinese airlines do.
The only flights that are exempt are those that originate in countries with comparable emissions programs. The goal, after all, is to cut down on the actual emissions associated with each flight, not to levy a fee on each carrier, or to make a legal point about who gets to write international aviation rules.
"I think what's happening now is that the way this is being seen, we are just completely divorced form the underlying environmental issue here," Campos said. "And this is being talked about as a sovereignty issue, and to some degree as a tax issue."
The European system isn't meant to preclude a grand international solution. But Campos said countries can't afford to wait for one since the airplanes coming on the market today will still be in use decades from now, and airline emissions are major contributor of greenhouse gases.
"Typically in the climate change context, we're talking about [projections] between now and 2050," Campos said. "That seems like a really long time away. Well, airplanes last much longer."