December 5, 2007

Hon. Stephen L. Johnson

Administrator United States Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, NW

Mail Code 1101A Washington, DC 20460

Re: Petition for Rulemaking Under the Cl ean Air Act to Reduce the Emission of Air

Pollutants from Aircraft that Contribute to Global Climate Change

Dear Administrator Johnson:

Global warming is one of the most pressing en vironmental challenges of our time. Concentrations of greenhouse gases, 1 primarily from society’s bur ning of fossil fuels and the destruction of forests, are incr easing in the Earth’s atmosphere, trapping solar energy that would otherwise be radiated back into space. This phenomenon is having profound impacts on the Earth and its inhabitants, includ ing a rise in global temperatures , more extreme weather events, severe flooding and droughts, the spread of infectious diseases, and the extinction of numerous species. As one of the world’s largest emitters of greenhouse gases, the United States must act to address this urgent situation by reducing emissions from all sectors of its economy.

Aircraft engines represent an increasi ng and potent source of greenhouse gas emissions, due in part to the unprecedented growth in air trav el in the United States and internationally. In 2005, aircraft accounted for three percent of the United States’ total carbon dioxide emissions

1 “Greenhouse gases” are atmospheric gases responsible for causing global warming and climate change. The major greenhouse gases are carbon dioxide (“CO 2 ”), methane (“CH 4 ”) and nitrous oxide (“N 2 O”).

1and 12 percent of such emissions from the U.S. transportation sector. 2 In fact, the United States is responsible for almost half of worldwide carbon dioxide emissi ons from aircraft, nearly five times the amount of the next largest emitter. 3 Moreover, aircraft emissions are projected to substantially increase in the coming decades, and globally, are expected to more than triple by mid-century. 4 Recent reports show that at altitude, ai rcraft emissions have a greater impact on global warming than previously understood, and are more harmful than land-based fuel

combustion. 5 While some countries have already begun taking steps in response to these challenges, 6 the United States has thus far ignored its responsibility to address this growing source of greenhouse gas emissions.

Therefore, pursuant to the Administrative Procedure Act, 5 U.S.C. § 553(e), and the Clean Air Act, 42 U.S.C. § 7571, Petitioners file this Petition for Rulemaking and respectfully request that you undertake the following mandatory duties:

(1) Make a finding that greenhouse gas em issions from aircraft engines may reasonably be anticipated to endanger public health and welfare pursuant to Section 231(a)(2)(A) of the Clean Ai r Act, 42 U.S.C. § 7571(a)(2)(A);

(2) Issue proposed standards for greenhous e gas emissions from aircraft engines pursuant to Section 231(a)(2)(A) of the Clean Air Act, 42 U.S.C. § 7571(a)(2)(A);

and

(3) Promulgate final regulations within 90 days of the issuance of such proposed standards pursuant to Se ction 231(a)(3) of the Clean Air Act, 42 U.S.C. § 7571(a)(3).

Given the urgent threats to public health and welfare posed by global climate change, prompt consideration must be given to this pe tition. Therefore, Peti tioners hereby request a substantive response to this petition within one hundred eighty (180) cale ndar days. Petitioners

2 EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 – 2005 , (2007), at 2-1, available at : http://www.epa.gov/climatechange/emissions/downloads06/07CR.pdf [hereinafter “EPA Inventory ”].

3 R OYAL A ERONAUTICAL S OCIETY , A IR T RAVEL – G REENER BY D ESIGN , Report of the Greener Design Science and Technology Sub-Group (July 2005) at 7 Fig. 7, available at : http://www.greenerbydesign.org.uk/_FILES/publications/GbD%20

- %202005%20Science%20and%20Technology%20Report.pdf [hereinafter Greener by Design Report].

4 Sir Nicholas Stern, S TERN R EVIEW ON THE E CONOMICS OF C LIMATE C HANGE

, Cambridge University Press (Oct. 30, 2006) at 172, available at : www.sternreview.org.uk, [hereinafter Stern Report].

5 Ian A. Waitz, et al ., A VIATION AND THE E NVIRONMENT : A N ATIONAL V ISION S TATEMENT , F RAMEWORK FOR G OALS AND R ECOMMENDED A CTIONS

, Report to the United States Congress (Dec. 2004) at 18, available at : http://web.mit.edu/aeroastro/partner/re ports/congrept_avi ation_envirn.pdf [hereinafter A VIATION AND THE
E NVIRONMENT ].

6 Commission Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community , 2006/0304 (COD), COM(2006) 818 final (Dec. 20, 2006), available at : http://eur

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2 006&nu_doc=818.

2will consider litigating to compel a response that is unreasonably delayed in order to achieve the requested agency action. 7

PETITIONERS

Friends of the Earth is a public interest, non-profit advocacy organization, whose mission is to defend the environment and champion a just and healthy world. The organization works to stop environmental damage from the current model of economic and corporate globalization, and to protect human health and the planet by reducing dependence on fossil fuels. Founded in San Francisco in 1969 by David Brower, Friends of the Earth now maintains its headquarters in Washington, D.C. and is the U.S. voice of the world’s largest ne twork of grassroots environmental groups, with affiliates in 70 countries.

Oceana is a non-profit intern ational advocacy organization dedicated to protecting and restoring the world’s oceans through policy, advocacy, science, law, and public education. Oceana has over 280,000 members and supporters around the world. Oceana is organized under the laws of the District of Columbia, and maintains its headquarters in Washington, D.C. It has offices or staff in five states (Alaska, Calif ornia, Massachusetts, New York, and Oregon) and three foreign countries (Chile, Belgium, and Sp ain). Through its polic y, scientific, litigation, and grass-roots activities, Oceana has been a pr ominent advocate for protecting threatened and endangered marine species and marine ecosystems. Many marine ecosystems and species, such as the loggerhead sea turtle and species of deep sea corals, are threatened by global warming and

ocean acidification.

The Center for Biological Diversity (“the Center”) is a non-profit organization with offices in San Francisco, Los Angeles, and Joshua Tree, California, Phoenix and Tucson, Arizona, Silver City, New Mexico, Portland, Or egon, and Washington, D.C. The Center is a national membership organization with over 35,000 members in the United States. The Center’s mission is to ensure the preservation, protection, and restoration of biodi versity, native species, ecosystems, public lands and waters, and public health. Because climate change from society’s production of greenhouse gases is one of the fore most threats to the earth’s biodiversity, the environment, and public health, the Center’s C limate, Air, and Energy Program works to reduce United States greenhouse gas emissions in order to protect these resources. The Center has advocated in local, state, and federal forums for the reduction of greenhouse gas pollution. The Center has petitioned to have some of the first species to be threatened by global warming listed under the U.S. Endangered Species Act, including th e polar bear, staghorn and elkhorn corals in the Caribbean, twelve of the wo rld’s penguin species, the American pika, and the Kittlitz’s murrelet, a small seabird that feeds at the base of tidewater glaciers in Alaska. These species will not survive unless the United States substantially reduces its greenhouse gas emissions. The Center has previously request ed that EPA regulate greenhouse gases from automobiles under

7 This petition follows the petition for rulemaking under Section 213(a)(4) of the Clean Air Act, 42 U.S.C. § 7547(a)(4), to regulate greenhouse gas emissions from marine vessels submitted by Petitioners on October 3, 2007. As described in that petition, marine engines contribute approximately five percent of total domestic carbon dioxide emissions from transportation-related fo ssil fuel combustion, and shipping wo rldwide is estimated to account for almost three percent of global greenhouse gas emissions. Moreover, global warming emissions from marine vessels are expected to triple by 2030.

3Section 202 of the Clear Air Act, and was a pa rty in the successful case overturning EPA’s

decision not to do so. The Center submits this petition on behalf of itself and its adversely

affected members.

STATEMENT OF LAW

The Clean Air Act, 42 U.S.C. §§ 7401 et seq. (the “Act”), provides the Administrator of the U.S. Environmental Protection Agency (“EPA” ) with the exclusive authority to regulate air pollutants from aircraft engines. Pursuant to Section 231(a)(2)(A):

The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air polluta nt from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to enda nger public health or welfare.

42 U.S.C. § 7571(a)(2)(A). In doing so, the Ad ministrator is required to consult with the

Administrator of the Federal Av iation Administration (“FAA”). Id. at § 7571(a)(2)(B). The Act further requires EPA to promulgate final regula tions within 90 days of the issuance of its proposed emissions standards. Id. at § 7571(a)(3). In addition, Section 232 of the Act requires the Secretary of Transportation, acting through the FAA, to prescribe regulations that ensure compliance with the standards is sued by EPA under section 231. Id. at § 7572(a); see 49 C.F.R. § 1.47(g). States and other political subdivisions are prohibited from a dopting or attempting to enforce any emissions standards for aircraft e ngines unless they are id entical to standards promulgated by EPA. 42 U.S.C. § 7573.

Although EPA has occasionally issued standa rds regulating air pollution from aircraft engines under Section 231, 8 it has not previously considered limiting emissions from aircraft based on the contribution of those emissions to gl obal warming. However, it is clear that EPA’s authority under Section 231 extends to greenhouse gas emissions from aircraft engines. Section 302(g) of the Clean Air Act broadly defines the term “air pollutant” to include:

[A]ny air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or

otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutan t, to the extent the Administrator has identified such precursor or precursors for the particul ar purpose for which the term ‘air pollutant’ is used.

Id. at § 7602(g). The U.S. Supreme Court ha s firmly established that greenhouse gases – including carbon dioxide – cons titute air pollutants under S ection 302(g) of the Act.
Massachusetts, et al. v. EPA, et al., 127 S. Ct. 1438, 1462 (2007) (“ Mass. v. EPA ”) (“Greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’ in

8 See, e.g. , EPA Final Rule for Control of Air Pollution From Aircraft and Aircraft Engines; Emission Standards and Test Procedures, 70 Fed. Red. 69,664, 69,666 (Nov. 17, 2005) (establishing new emission standards for oxides of nitrogen (“NOx”)and discussing history of EPA’s regulation of aircraft engine emissions).

4section 302(g)”). 9 Following that decision, th e President confirmed the need for EPA to use its authority to protect the envi ronment from greenhouse gas emissions from mobile engine

sources. See Executive Order 13432: Cooperation Among Agencies in Protecting the Environment with Respect to Greenhouse Ga s Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines, 72 Fed. Reg. 27,717 (May 16, 2007).

Given these mandates, EPA has the authorit y to regulate greenhouse gas emissions from aircraft engines as “air pollutant s” pursuant to Section 231(a)(2)( A) of the Act. Moreover, as demonstrated below, given the rapidly increasing contribution of greenhouse gas emissions from aircraft, combined with mounting evidence that these emissions, at altitude, have a significantly greater global warming impact than land-based fuel combustion, it is EPA’s clear statutory duty

to do so.

STATEMENT OF FACTS

A. Global Climate Change Background.

There is no longer any sc ientific dispute that human production of greenhouse gases, including carbon dioxide, methane, and nitrous ox ide, are responsible for the unprecedented rate of warming observed ov er the past century. 10 According to the Intergovernmental Panel on Climate Change (“IPCC”), 11 “[w]arming of the climate system is unequivocal, as is now evident from observations of increases in global air a nd ocean temperatures, widespread melting of snow and ice, and rising globa l average sea level.” 12 Moreover, “[m]ost of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic gr eenhouse gas concentrations.” 13 Thus, the world’s leading scientific body on the subject has now conclude d, with greater than 90 percen t certainty, that emissions of greenhouse gases are responsib le for climate change. 14

9 While that decision dealt with the regulation of motor vehicles pursuant to Section 202(a)(1), 42 U.S.C. § 7521(a)(1), the definition of “air pollutant” in Section 302(g) applies throughout the Act.

10 See EPA, Climate Change – Science, http://www .epa.gov/climatechange/science/index.html; G OVERNMENT
A CCOUNTABILITY O FFICE , C LIMATE C HANGE : A GENCIES S HOULD D EVELOP G UIDANCE FOR A DDRESSING THE
E FFECTS ON F EDERAL L AND AND W ATER R ESOURCES (August 2007) at 10, available at : http://www.gao.gov/new .items/d07863.pdf [hereinafter GAO Report].

11 The IPCC was established in 1988 by the World Meteorological Organization and the United Nations Environment Programme to provide an authoritative interna tional statement of scientific understanding of climate change. Its various Working Group and Assessment Reports on climate change are available at: http://www.ipcc.ch /.

12 IPCC, S UMMARY FOR P OLICYMAKERS : C LIMATE C HANGE 2007: T HE P HYSICAL S CIENCE B ASIS ; C ONTRIBUTION OF
W ORKING G ROUP I TO THE F OURTH A SSESSMENT R EPORT OF THE I NTERGOVERNMENTAL P ANEL ON C LIMATE C HANGE (Feb. 2007) at 5 [hereinafter Working Group I Summary]. In particular, the IPCC found in its recent reports that total global surface temperature increased 0.76°C (1.37°F) between 1850-1899 and 2001-2005. Id. In the Arctic, temperatures at th e top of the permafrost layer have increased since the 1980s by up to 3°C (5.4°F), while annual average artic sea ice has shrunk by 2.7 percent pe r decade, with even larger decreases in summer of 7.4 percent per decade. Id. Global sea levels rose at an average rate of 1.8 millimeters per year between 1961 and 2003.

Id.

13 Id. at 10 (emphasis in original).

14 See id. at 3 n.6 (explaining the use of the term “very likely”).

5In the words of the IPCC, carbon dioxide is “the most impor tant anthropogenic greenhouse gas.” 15 The primary source of carbon dioxide emissions since the pre-industrial period has been the combustion of fossil fuels, with land-use changes responsible for another significant but smaller contribution. 16 Not surprisingly, the global atmospheric concentration of

carbon dioxide has increased from a pre-industrial value of about 280 parts per million (“ppm”) to 379 ppm in 2005, by far exceeding the natural range over the last 650,000 years (180 to 300 ppm), as estimated by ice core samples. 17

The United States is responsible for over 20 percent of the world’s greenhouse gas emissions, and remains one of the largest emitters on a per capita basis. 18 As the largest source of domestic greenhouse gas emissions, carbon dioxide from fossil fuel combustion alone accounted for 79 percent of tota l warming emissions in 2005. 19 One of the primary sources of such emissions is from the transportation s ector, which in 2005 accounted for 33 percent of

carbon dioxide emissions in the United States and about 28 percent of all greenhouse gas

emissions from anth ropogenic activities. 20 According to the IPCC, greenhouse gas emissions from transport are expected to in crease 80 percent between 2002 and 2030. 21

B. Aircraft Engines Emit Greenhous e Gases and Have a Disproportionate Impact on Global Warming.

Aircraft engine emissions are composed of approximately 70 percent carbon dioxide, 30 percent water vapor, and le ss than one percent each of oxides of nitrogen (“NO X ”), carbon monoxide, oxides of sulfur, and other trace comp onents including hydrocarbons such as methane

and soot. 22 These emissions contribute to global warmi ng in several ways. First, aircraft emit significant amounts of carbon diox ide, the primary greenhouse gas produced by anthropogenic activities in the United States and globally. In 2005, aircraft contributed three percent of the United States’ total carbon dioxide emissions, and 12 percent of such emissions from the

15 Id. at 2; see EPA Inventory

, supra note 2, at 2-1.

16 Working Group I Report Summary, supra note 12, at 2.

17 Id

.

18 United Nations Environment Programme /GRID-Arendal, National carbon dioxide (CO2) emissions per capita;
CO2 2002, available at : http://maps.grida.no/go/graphic/national_carbon_dioxide_co2_emissions_per_capita.

19 EPA Inventory

, supra note 2, at 2-1.

20 Id . at 2-10, 2-23.

21 IPCC, C LIMATE C HANGE 2007: M ITIGATION OF C LIMATE C HANGE ; C ONTRIBUTION OF W ORKING G ROUP III TO THE

F OURTH A SSESSMENT R EPORT OF THE I NTERGOVERNMENTAL P ANEL ON C LIMATE C HANGE (May 2007) at 357 [hereinafter W ORKING G ROUP III R EPORT ].

22 FAA, O FFICE OF E NVIRONMENT AND E NERGY , A VIATION AND E MISSION : A P RIMER (Jan. 2005) at 1, available at : http://www.faa.gov/regulations_policies/policy_guidance/ envir_policy/media/aeprimer.pdf [hereinafter FAA Report].

6transportation end-use sector. 23 However aircraft carbon diox ide emissions, if measured at ground level, are only “a fraction” of aviati on’s total contribution to climate change. 24

NO X emissions from aircraft contribute to the formation of ozone, a greenhouse gas. Moreover, emissions of NO X in the upper troposphere and tropopause, where most aviation emissions occur, result in greater concentr ations of ozone than ground-level emissions. 25

Aircraft also contribute to clim ate change by altering cloud cover pa tterns. Aircraft engines emit water vapor, a greenhouse gas that forms condensation trails, or “contrails,” when released at high altitude. Contrails are visible line clouds that form in cold, humid atmospheres and contribute to the global warm ing impact of aircraft. 26 In addition, the persistent formation of

contrails is associated with the spread of cirrus clouds. 27 An increase in cirrus cloud cover tends to warm the surface of the Earth, fu rther contributing to global warming. 28

Therefore, greenhouse gas emissions from ai rcraft at altitude have a greater global warming impact than their carbon dioxide emissions alone, or than emissions of greenhouse gases at ground level. In fact, a recent re port by the UK Royal Commission on Environmental

Protection stated that the net eff ect of ozone, contrail, and aviatio n-induced cirrus is expected to be three times the radiative forcing due to the CO 2 emitted from aircraft. 29 The report concludes

that if these estimates are correct and the anticipated growth in aviation realized, aviation may be responsible for between six and ten percent of anthropogenic forcing of climate by 2050. 30

C. Aviation’s Impact on Global Warming Is Predicted to Increase Dramatically in the

Next Few Decades.

Greenhouse gas emissions from aircraft are an ticipated to increase substantially in the coming decades because of a projected growth in air transport both in the United States and

23 EPA Inventory

, supra note 2, at 3-8.e, Table 3-7.

24 Bows, Alice, Kevin Anderson and Paul Uphan, Technical Report: Contraction and Convergence: UK carbon emissions and the implications for UK air traffic , T YNDALL C ENTRE FOR C LIMATE C HANGE R ESEARCH (Feb. 2006) at 18, available at http://www.tyndall.ac.uk/r esearch/theme2/project_overviews/t3_23.shtml , click link at “Technical Report”. See also , IPCC, T ECHNICAL S UMMARY ; C ONTRIBUTION OF W ORKING G ROUP III TO THE
F OURTH A SSESSMENT R EPORT OF THE I NTERGOVERNMENTAL P ANEL ON C LIMATE C HANGE , (May 2007) at 51 [hereinafter Working Grou p III Technical Summary].

25 EPA Inventory

, supra note 2, at 1-4; see also IPCC, A VIATION AND THE G LOBAL A TMOSPHERE (1999) at Chapter 1.3.3, available at : http://www.grida.no/climate/ipcc/aviation/index.htm [hereinafter IPCC Aviation Report].

26 IPCC, C LIMATE C HANGE 2007: T HE P HYSICAL S CIENCE B ASIS ; C ONTRIBUTION OF W ORKING G ROUP I TO THE
F OURTH A SSESSMENT R EPORT OF THE I NTERGOVERNMENTAL P ANEL ON C LIMATE C HANGE (Feb. 2007) at 186 [hereinafter Working Group I Report].

27 IPCC, A VIATION AND THE G LOBAL A TMOSPHERE , (June 1999) at Summary for Po licymakers, 4.5 [hereinafter IPCC Aviation Report].

28 Id.

29 R OYAL C OMMISSION ON E NVIRONMENTAL P ROTECTION (RCEP), T HE E NVIRONMENTAL E FFECTS OF C IVIL A IRCRAFT IN F LIGHT , London, UK (Nov. 29, 2002) at 18, available at : http://www.rcep.org.uk/avreport.htm.

30 Id . at 19.

7worldwide. 31 According to the FAA, greenhouse gas emissions from domestic aircraft are expected to increase 60 percent by 2025. 32 The IPCC estimates that increases in air transport over the next 50 years will result in a three-fold increase in aircraft CO 2 emissions, a 13 percent increase in ozone, a growth in contrail cover at a rate faster than that of the growth in aviation fuel consumption, and cirrus cloud increases by a f actor of four. 33

International air transport agreements (“ATAs ”) negotiated by the United States facilitate these increases. For example, the United States recently signed an agreement with China to amend the countries’ existing ATA to double passenger flights by 2012, and give U.S. and Chinese cargo carriers unfe ttered access to markets. 34 Similarly, the United States recently amended its ATA with the European Union (the “Open Skies Agreement”) to authorize every

U.S. and EU airline to fly between every city in the European Union and the United States, and to operate without restric tion on the number of flight s, aircraft, and routes. 35

In short, there is an un relenting global demand for in creased air transport of both passengers and goods – a demand that appears undeterred by escalating flight delays and new terrorist threats, and one that is being facilitate d by the policies of the United States government and its trading partners. It s hould therefore come as no surprise that globally, carbon dioxide emissions from aircraft could grow by more than three-fold by mid-century, making air travel one of the fastest-growing producers of greenhouse gases. 36

D. Existing and Developing Aviation Procedures and Technologies Can Reduce

Greenhouse Gas Emissions.

Given that aircraft require a significant amount of fuel to operate, and that each gallon of jet fuel contributes 21 pounds of carbon dioxide when burned, 37 relatively minor improvements in fuel efficiency can result in significant reduc tions in greenhouse gases. As described below, aviation procedures and aircraft designs are available today that can significantly increase fuel efficiency and decrease greenhouse gas emissions . Technologies currently being developed are expected to result in even further improvements w ithin the next few years. In fact, according to a recent assessment, with total fuel consumption as an objective, design, operational and

31 Air transport in the United States is expected to in crease by 3.5 percent annually over the next decade, and approximately five percent per year worldwide. A VIATION AND THE E NVIRONMENT

, supra note 5, at 21; ICAO Working Paper, Towards a Carbon Neutral and Eventually Carbon Free Future, I NT ’ L A IR T RANSPORT A SS ’ N

, A36-WP/85 EX/33, (Aug. 28, 2007) at ¶ 2.2.

32 FAA Report, supra note 22, at 10.

33 IPCC Aviation Report, supra note 27, at Summary for Policymakers 4.1, 4.2, 4.5, and 4.6.

34 Fact Sheet, U.S. Department of Treasury, Second Meeting of the U.S.-China Strategic Economic Dialogue (May 23, 2007), available at : http://www.treas.gov/press/releases/hp417.htm.

35 Statement by U.S. Department of Transportation Secretar y Peters on the U.S. – EU Open Skies Agreement (Mar. 22, 2007), available at : http://www.dot.gov/affairs/peters032207.htm.

36 Stern Report, supra note 4, at 172.

37 Energy Information Association, Voluntary Reporting of Greenhouse Gases Program, available at : http://www.eia.doe.gov/oiaf/1605/factors.html

.

8technology improvements could result in a ten percent reduction over 2005 levels in carbon

dioxide and other fuel-relate d emissions from aircraft. 38

Voluntary measures alone will not be suffi cient to bring about the changes that are needed to address the significant a nd growing climate impacts of aviation. 39 Regulations that set mandatory and increasingly stringent standards are needed not only to ensure that existing technologies and operations are implemented in the n ear-term, but also to in crease incentives for the development of new technologies and procedures in the future. 40 EPA itself has acknowledged that Section 231 of the Clean Air Act authorizes it to set “technology-forcing” standards for aircraft engines as long as the st andards give manufacturer s sufficient lead time.

Final Rule for Control of Air Pollution From Airc raft and Aircraft Engines; Emission Standards and Test Procedures, 70 Fed. Red. 69,664, 69,676 (Nov. 17, 2005). Thus, it is imperative that the agency set standards to force the adoption an d use of these existing measures, and also to encourage development of improved technologies and procedures that will reduce emissions

even further.

1. Improved Aviation Operations and Procedures Can Reduce Greenhouse Gas Emissions Significantly.

There are numerous existing operational m easures that can reduce fuel use, and consequently, greenhouse gas emissions from aircra ft. Mandating the use of these procedures will result in immediate, near-term, and m eaningful improvements in aviation’s climate impact. 41 The IPCC estimates that improved ai rcraft operational practices can reduce greenhouse gas emissions by six to twelve percent. 42 Some operational measures for reducing

emissions include:

38 Nicolas Antoine and Ilan Kroo, Framework for Aircraft Conceptual Design and Environment Performance Studies, AIAA J OURNAL , Vol. 43, No. 10, 2108 (Oct. 2005).

39 According to the IPCC, given the anticipated five percen t annual growth in aviation, increases in greenhouse gas emissions from aircraft will outpace improvements that can be expected through evolutiona ry changes in engine and aircraft design. W ORKING G ROUP III R EPORT

, supra note 21, at 326.

40 The European Commission’s proposal to include aviation emissions in the European carbon trading system illustrates how such regulatory standards can spur industry to more rapidly develop and deploy cleaner aircraft. Under the proposal, greenhouse gas emissions from aviation would be capped and airlines that are unable to meet emission standards would be required to purchase carbon dioxide allowances or offsets. Commission Directive amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community , 2006/0304 (COD), COM(2006) 818 final (Dec. 20, 2006), available at : http://eur

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2 006&nu_doc=818. Many European airlines are taking steps to modernize their fleets and to purchase more fuel efficient aircraft, but the U.S. airlin e industry’s fleets remain outdated and domestic airline companies have been slow to order newer, more fuel e fficient aircraft. Kyle Peterson, U.S. airlines bide their time as fleet needs grow

, R EUTERS (June 12, 2007), available at : http://uk.reuters.com/article/basic Industries/idUKN1226568120070612.

41 A VIATION AND THE E NVIRONMENT

, supra note 5, at 33-34.

42 Working Group III Technical Summary, supra note 24, at 51.

9• minimizing engine idling time on runways 43 and employing single engine taxiing; 44

• reducing engine thrust and re verse during high-intensity periods such as take-off and landing; 45

• optimizing timetables, route networks, a nd flight frequencies to reduce stopovers, especially for short- and medium-haul flights, 46 and to make possible the selection of more fuel-efficient routes; 47

• reducing the use of auxiliary power units; 48

• reducing the amount of excess fuel carried; 49

• more regular maintenance and cleaning of engines and airframes to correct minor deterioration; 50

Additionally, designing aircraft to operate at lower altitudes and reduced speed could help avoid contrails and ci rrus cloud formation, thereby fu rther reducing environmental impacts. 51

A 2004 Report to Congress, prepared on beha lf of the FAA and the National Aeronautics and Space Administration (“NASA”), outlined numerous available operational changes that could be implemented to reduce the global warming impacts of aircraft. 52 In addition to those mentioned above, these measures include contin uous descent approach procedures which have been shown not only to reduce noise impacts by k eeping aircraft higher for longer, but also to reduce fuel burn and emissions of pollutants. 53 Another example succe ssfully piloted at San Francisco International Airport combined existing technologies to increase the number of landings per hour, with the aim of reducing dela ys by 25 percent and decreasing the need for aircraft to circle while awaiting clearance for landing. 54

43 C ONTROLLING A IRPORT R ELATED P OLLUTION , CCAP & NESCAUM (June 2003) at III-8, available at : http://bronze.nescaum.org/workgroup/aircraftport/Aviation_Final_Report.pdf , [hereinafter CCAP Report].

44 A VIATION AND THE E NVIRONMENT , supra note 5, at 34.

45 CCAP Report, supra note 43, at III-9-11.

46 For the purposes of this petition, short-haul flights re fer to flights between 300 and 600 miles. Medium-haul flights refer to flights between 600 and 1,000 miles. Long-haul flights refer to flights greater than 1,000 miles.

47 CCAP Report, supra note 43, at III-9-11; see also A VIATION AND THE E NVIRONMENT

, supra note 5, at 34.

48 A VIATION AND THE E NVIRONMENT

, supra note 5, at 34.

49 Id.

50 Id.

51 Antoine et al., supra note 38, at 2102 and 2109.

52 A VIATION AND THE E NVIRONMENT

, supra note 5, at 34.

53 Id

.

54 Id.

10Measures to reduce the global warming im pact of aviation should be a central consideration in the development of new air traffic management systems. 55 Improvements in air traffic management procedures alone could redu ce aviation fuel use by between six and eighteen percent, and other operations measures could resu lt in a further two to six percent improvement in efficiency. 56 Unfortunately, the Next Generation Air Transportation System (“NextGen”), the

U.S. government’s most recent initiative to update and improve America’s air traffic system, 57
currently does not includ e any measures to address the climat e change impacts of aviation. In fact, neither the 2005 nor the 2006 NextGen progress report contai ns a single reference to climate change. 58

2. Existing, More Efficient Aircraft Designs Can Reduce Greenhouse Gas

Emissions.

The airline industry could also meet requirements to reduce greenhouse gas emissions by adopting more efficient aircraft designs and technologies. In fact, designs and technologies are available today that can increase the fuel effici ency of aircraft and minimize such emissions.

One way to reduce the fuel consumption of aircraft is to reduce their weight. 59 One way to achieve such reductions is through the use of lighter composite ma terials for airframes. 60 For example, the frame of the Boeing 787 Dreamliner , which is scheduled to enter service in 2008, is made primarily from carbon composite, making th e aircraft much lighter and 20 percent more fuel efficient than any metal aircraft of similar size. 61

Weight could also be removed from the nace lle of the aircraft, which holds the engine, fan, thruster and exhaust of a jet engine. The use of lighter materials for the nacelle, and the application of design techniques which can help offset the weight of the engine and fan, can reduce drag and fuel burn, thus improving aircraft efficiency. 62 Another option for reducing weight is the use of efficiently designed propeller airc raft, which are generally lighter than jetpropelled aircraft, for short-haul flights. 63

55 Thea Sebastian & Rick Pitz, NextGen Air Transportation System Progress Reports Ignore Climate Change,

C LIMATE S CIENCE W ATCH (July 2007), available at : http://www.climatesciencewatch.org/file

uploads/NextGen_final_18jul07.pdf.

56 International Civil Aviation Organization, E NVIRONMENTAL R EPORT 2007 (2007) at 108, available at http://www.icao.int/icao/en/env/pubs/Env_Report_07.pdf [hereinafter ICAO E NVIRONMENTAL R EPORT ].

57 NextGen is comprised of representativ es of the Department of Transporta tion (with FAA as the lead planning agency), Homeland Security, the Departments of Defens e and Commerce, NASA, and the White House Office of Science and Technology Policy, with the oversight of the Joint Planning and De velopment Office (“JPDO”).

58 Sebastian & Pitz, supra note 55, at 7.

59 Greener by Design Report, supra note 3, at 15.

60 Antoine et al., supra note 38, at 2107.

61 Boeing, Boeing 787 Dreamliner Will Provide New Solutions for Airlines, Passengers, http://www.boeing.com/commerc ial/787family/background.html [hereinafter Boeing 78 7 Dreamliner Background].

62 Greener by Design Report, supra note 3, at 10.

63 Greener by Design Report, supra note 3, at 12

11Other technological adjustments also show promise for marked improvements. The 787, for example, uses advances in engine technology, including the lightest fan system currently certified in the industry, a mo re fuel-efficient compressor, and a contra-rotating system, 64 that Boeing claims will contribute as much as eight percent of the increased efficiency of the new airplane. 65 Small changes to the bodies of aircraft, su ch as winglets on the tips of aircraft wings that improve aerodynamics, 66 the use of electric fuel and air pumps inside planes, disk and

airfoil blade materials that can withstand higher operating pressures and temperatures, 67 and the employment of unducted-fan engines, 68 are all available technologies that can achieve significant fuel savings and lower emissions. Given the fact that aircraft use large amounts of fuel, even incremental improvements in fuel e fficiency can result in significant emissions

reductions.

While these technologies are currently avai lable, there are many more advances in aircraft design in the works. Boeing and NASA, for example, are working on the development of a “blended wing” aircraft. 69 Blended wing designs incorpor ate the engine, wings, and body of an aircraft into a single lifti ng surface and result in increased fuel efficiency and fewer

emissions. 70 This type of aircraft could reduce fuel burn by 20 to 30 percen t over an equivalent

sized conventional aircraft carrying the same load. 71 In July 2007, the NASA development group successfully tested a blended wing aircraft. 72 Although current blended wing designs are not as comfortable as existing passenger aircraft , the use of a blended wing design for freighter or tanker aircraft transport could reduce emissions in the near term. 73 Another promising technology is a “silent aircraft” being developed by the Massachusetts Institute of Technology and Cambridge University that would burn 25 percent less fuel than current planes, simultaneously achieving the environmental goa ls of reducing greenhouse gas emissions and reducing noise. 74

64 Rolls Royce, Trent 1000, Leading Technology, available at : http://www.rolls

royce.com/civil_aerospace/products/air lines/trent1000/technology_flash.jsp.

65 Boeing 787 Dreamliner Background, supra note 63.

66 FAA Report, supra note 22, at 19. The IPCC has recently estimated that winglets can reduce fuel consumption by around seven percent. Working Group III Report, supra note 21, at 354.

67 NASA Fact Sheet, Safeguarding Our Atmosphere; Gl enn Research Reduces Harm ful Aircraft Emissions,

available at: http://www.nasa.gov/centers/glenn/about/fs10grc.html

.

68 Green Fingers; Rolls-Royce pitches open -rotor concept for Europe’s Nacre , A VIATION W EEK & S PACE
T ECHNOLOGY ; A IR T RANSPORT , p. 49, Vol. 165, No. 14.

69 NASA, X-48 Blended Wing Body, available at : http://www.nasa.gov/centers/dryden/research/X-48B/index.html

.

70 Greener by Design Report, supra note 3, at 22.

71 Working Group III Report, supra note 21, at 354.

72 X-48B Blended Wing Body Aircraft makes first flight , A SSOC . P RESS (July 27, 2007), available at: http://www.komotv.com/news/boeing/8763787.html

.

73 Greener by Design Report, supra note 3, at 20.

74 The Silent Aircraft Initiative, MIT-Cambridge Institute, available at : http://silentaircraft.org/efficiency/.

12Advances in aircraft fuel efficiency can have multiple benefits by facilitating improvements in operational practices. For exam ple, more fuel efficient aircraft may help reduce or eliminate stopovers that require additional take-off peri ods, the most fuel consumptive stage during short- and medium-haul flights. 75

These technology improvements, combined with aircraft design improvements and operational changes, have the potential to achieve significant reductions in greenhouse gas emissions. The 2004 Report to Congress conclude d, however, that without more funding and the development of goals to specifically addre ss the global warming impacts of aircraft, future emissions reductions goals – while technologica lly feasible – may not be met because an insufficient number of technology options will be brought to a r eadiness level that would allow them to be transitioned into the industry. 76 Thus, the report recommends that “[f]or the long term, but commencing immediately, integrated programs should be strengthened to bring economically reasonable advanced technologies to levels of development that allow more rapid insertion into aircraft and engines.” 77

3. The Use of Alternative Fuels Co uld Further Reduce Greenhouse Gas

Emissions from Aviation.

Efforts are currently underway to develop and certify alternative fuels that could reduce the global warming impact of aircraft. In April of 2007, Boeing, Virgin Atlantic, and GE Aviation announced an environmental partners hip to develop alternative aviation fuels. 78 The consortium is planning to test an alternative-fueled flight in 2008. 79 Boeing also recently entered into an agreement with Air New Z ealand and Rolls-Royce to conduct a biofuel demonstration flight in the second half of 2008 using an Air New Zealand Boeing 747-400 equipped with Rolls-Royce engines. 80 According to Air New Zealand’s Chief Executive, advances in technology have made biofuels a viable possibility for use in aviation far sooner than anticipated. 81 Academic and private institutes in the United States and around the world are also working to find sustainable ways to pr oduce biofuels suitable for use in aviation. 82

75 Greener by Design Report, supra note 3, at 8, Figure10 and Figure 11.

76 A VIATION AND THE E NVIRONMENT , supra note 5, at 36.

77 Id

.

78 Boeing and Virgin Atlantic Announce Environmental Partnership , NAFTC E N EWS (May 2007), available at : http://www.naftc.wvu.edu/eNe ws/May07/virgin.html

.

79 Anita LaFond, Boeing, Virgin Atlantic Join For Biofuel Development; Virgin Atlantic Puts In Big Order For Boeing's Dreamliners , M ANUFACTURING

. NET ; M ANAGEMENT N EWS N OW (Apr. 24, 2007), available at : http://www.manufacturing.net/article.aspx?id=140037&menuid=272

.

80 Richard Black, Biofuel Trial Flight Set for 747 , BBC N EWS O NLINE (Sept. 28, 2007), available at : http://news.bbc.co.uk/2/hi/science/nature/7017694.stm

.

81 Id

.

82 See

, e.g. , Baylor Institute for Air Sciences, available at : http://www.baylor.edu/bias/; see also Boeing and Virgin launch biofuel efforts , M ACHINE D ESIGN (June 21, 2007), available at : http://machinedesign.com/ContentItem/67970/BoeingandVirginlaunchbiofueleffort.aspx

.

13Although the benefits of requiring the use of biofuels for any transportation sector remain uncertain, 83 to the extent that concerns are su fficiently addressed, the development of alternative fuels for use in aircraft is promising. Regulator y measures limiting greenhouse gas

emissions from aircraft would increase the incen tives to develop and use alternative fuels that could significantly reduc e the global warming impacts of aviation.

ARGUMENT

Pursuant to the Clean Air Act, EPA is required to prescribe emission standards for air pollutants from aircraft engines when such emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public h ealth or welfare. 42 U.S.C. § 7571(a)(2)(A). As discussed herein, it is indisputable that greenhouse gas emissions, including those from aircraft engines, are air polluta nts that are causing and contributing to global climate change with severe environmental consequences for the pl anet and all of its inhabitants. EPA has broad discretion in promulgating regul ations to limit greenhouse gases from aviation. Moreover, numerous measures are currently available th at can reduce the global warming impacts of aircraft emissions, and new technologies and other procedures under development can be brought online to further reduce emissions with in reasonable timeframes. Consequently, Petitioners request that EPA unde rtake its mandatory duty to regulate greenhouse gas emissions from aircraft engines.

A. Greenhouse Gas Emissions from Aircra ft Engines Are Air Pollutants Under the

Clean Air Act.

Under Section 302(g) of the Clean Air Act, an “air pollutant” is defined as “any air pollution agent or combination of such agents , including any physical, [or] chemical...substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. § 7602(g). This definition has long been interpreted by c ourts in an extremely broad manner. See, e.g., Alabama

Power Co. v. Costle , 636 F.2d 323, 353 n. 60 (D.C. Cir. 1979). Furthermore, the Supreme Court recently held that carbon dioxide and othe r greenhouse gases “are wi thout a doubt ‘physical [and] chemical...substance[s] which [are ] emitted into...the ambient air.’” Mass. v. EPA , 127 S. Ct. at 1460. As a result, the greenhouse gases that Petitioners here request EPA to regulate

under Section 231 of the Clean Air Act fall within the definition of “air pollutant” under Section 302(g).

B. Emissions of Greenhouse Gases from Ai rcraft Engines Endanger Public Health and

Welfare.

Pursuant to the requirements of Section 231, greenhouse gas emissions from aircraft engines must be regulated under the Clean Air Act because they cause or contribute to the endangerment of public health and welfare. As discussed above, there is now substantial

83 Many issues, primarily those of land available for growing biostocks, the costs of processing and refining them, as well as lifecycle greenhouse gas emissions from biofuels, rema in to be resolved before the widespread introduction of biofuels to transportation industries could be sustainable or result in life-cycle net reductions in greenhouse gas

emissions.

14evidence that greenhouse gas emissions from anth ropogenic sources are resulting in changes to the global climate, with profound implications for all life on the planet. These impacts include increased global air and water temperatures, rising sea levels, the spread of infectious diseases, an increased number of extreme weather events, impacts on air quality and the availability of drinking water, changes in ecosystems and wildlife habitat, and the pot ential extinction of countless species.

The Clean Air Act does not require proof of actual harm when determining what constitutes an endangerment to public health and welfare. Rather, EPA is required to take a precautionary approach in regulating pollution that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7571(a)(2)(A); see Mass. v. EPA , 127 S. Ct. at 1463 (“Nor can EPA avoid its statutory obligati on by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time”); Lead Industries Ass’n v. EPA , 647 F.2d 1130, 1155 (D.C. Cir. 1980) (“requiring EPA to wait until it can conclusively demonstrate that a particular effect is adverse to health before it acts is inconsistent with both the Act’s precauti onary and preventive orientation and the nature of the Administrator’s statutory re sponsibilities”). Regardless, there is now substantial evidence that greenhouse gas emissions, including those contributed by aircraft engines, may reasonably be anticipated to endanger public health and welfare. 84

1. Aircraft Greenhouse Gas Emissions Cause and Contribute to the Endangerment of Public Health.

Global climate change is expected to have significant impacts on human health in numerous ways, including increase d heat-related mortalities, the spread of infectious disease vectors, greater air and water pollution, an incr ease in malnutrition, and greater casualties from fires, storms, and floods. 85 As EPA itself has stated:

Throughout the world, the prevalence of some diseases and other threats to human health depend largely on local climat e. Extreme temperatures can directly lead to loss of life, while climate-related disturbances in ecological systems, such as changes in the range of infective para sites, can indirectly impact the incidence

of serious infectious diseases. In ad dition, warm temperatures can increase air and water pollution, which in turn harm human health. 86

84 In fact, EPA found more than a decade ago that aircraft NOx emissions at cr uise altitudes are “directly harmful to

human health and the environment” si nce they are “considered to be a pr ecursor of tropospheric ozone and a contributor to greenhouse gas.” 62 Fed. Reg. 25,356, 25,358 (May 8, 1997).

85 IPCC, S UMMARY FOR P OLICYMAKERS : C LIMATE C HANGE 2007: I MPACTS , A DAPTATION AND V ULNERABILITY

, W ORKING G ROUP II C ONTRIBUTION TO THE I NTERGOVERNMENTAL P ANEL ON C LIMATE C HANGE F OURTH
A SSESSMENT R EPORT (April, 2007) at 3 [hereinafter Working Group II Report]; see generally Paul R. Epstein and Evan Mills, C LIMATE C HANGE F UTURES : H EALTH , E COLOGICAL AND E CONOMIC D IMENSIONS (Nov. 2005),

available at : http://www.climatechangefutures.org/report/index.html [hereinafter Epstein & Mills].

86 EPA, Climate Change, Health and Environmental Effects; available at : http://www.epa.gov/climatechange/effects/health.html [hereinafter EPA Clim ate Change Effects].

15Negative health effects from rising temperatures and sea levels worldw ide, especially in developing countries, are expected to outweigh any anticipated be nefits of climate change on human health in temperate areas. 87 Even though such impacts may be mediated through complex interactions of physical, ecological, and social factors, the World Health Organization (“WHO”) has previously estimated that climat e change was responsible for at least 154,000

deaths worldwide in 2000. 88

Climate change is expected to increas e the risk from certain infectious diseases, especially vector-born diseases spread by mosquitoes such as malaria, dengue fever, yellow fever, and encephalitis in warm areas. 89 In the northeastern Unite d States, hotter, longer, and drier summers punctuated by heavy rainstorms may also create more favorable conditions for

outbreaks of West Nile Virus. 90 Furthermore, the spread of warmer winters is expected to create ideal conditions for the northward expansion of Lyme disease from the United States into

southern Canada. 91

An increase in the frequency and severity of extreme weather events, such as hurricanes, heat waves, and floods, resulting from climate ch ange may result in more deaths, injuries, and

stress-related disorders. 92 For example, in heavily populated delta regions, co astal areas, and small islands, sea level rise is anticipated to exacerbate flooding, stor m surges, beach erosion, and other hazards, thus threatening v ital infrastructure and settlements. 93 In the United States, sea levels have already risen five to six in ches more than the gl obal average along the MidAtlantic and Gulf Coast during the last century due to coastal lands that are subsiding. 94 By the end of this century, coastal flooding in New York City that now occurs once every 100 years could strike once each decade, while Atlantic City and Boston could experience such flooding every other year. 95

Moreover, cities that already experien ce hot summers are expected to be further challenged by an increasing number, intensity, and duration of heat waves during the 21st century and a resulting increase in heat-related illnesses and deaths. 96 Temperatures in the

northeastern United States are expected to increase between 2.5°F to 4.5°F in the winter months and 1.5°F to 3.5°F in the summer by the end of the century, with cities such as Hartford and

87 Working Group II Report, supra note 85, at 7.

88 WHO, T HE W ORLD H EALTH R EPORT 2002: R EDUCING R ISKS , P ROMOTING H EALTHY L IFE (Oct. 2002) at 72,

available at : http://www.who.int/whr/2002/en/.

89 Epstein & Mills, supra note 85, at 32-47; EPA Climate Change Effects, supra note 85.

90 P ETER C. F RUMHOFF

, ET AL

. , C ONFRONTING C LIMATE C HANGE IN THE U.S. N ORTHEAST : S CIENCE , I MPACTS

, AND S OLUTIONS (July 2007) at xi, available at : http://www.climatechoices.org/n e/resources_ne/nereport.html [hereinafter Northeast Report].

91 Epstein & Mills, supra note 85, at 46.

92 Id. at 53-64.

93 Working Group II Report, supra note 85, at 8-11.

94 EPA Climate Change Effects, supra note 86.

95 Northeast Report, supra note 90, at x-xi.

96 Working Group II Report, supra note 85, at 10.

16Philadelphia averaging more than 30 days with high temperatures above 100°F each year. 97
Segments of the population that are particularly vulnerable, such as thos e with heart problems, asthma, the elderly, infants, and the homeless, can be especially at risk to extreme heat. 98

In addition to an increase in the freque ncy and severity of heat waves, higher temperatures and sunlight, combined with other pollutants such as NO X and volatile organic compounds, may increase concentrations of ground-level ozone. 99 In Philadelphia, for instance, the number of days failing to meet federal air quality standards for ozone is expected to quadruple by the end of the century. 100 Breathing ozone can trigger a variety of health problems, including chest pain, coughing, th roat irritation, and congestion, and repeated exposure can lead to bronchitis, emphysema, asthma, and permanent scarring of lung tissue. 101

Climate change may also indirectly affect the concentration of particulate matter in the air by increasing sources such as wi ldfires and dust from dry soils. 102 Exposure to such particles can affect both the lungs and heart and has been linked to a variety of problems, including increased respiratory symptoms such as irrita tion of the airways, coughing or difficulty breathing, decreased lung function, aggravated asthma, development of chronic bronchitis, irregular heartbeat, nonfatal heart attacks, and premature death in people with heart or lung

disease. 103 As with other forms of air pollution, ce rtain vulnerable segments of the population,

such as children with asthma and the elde rly, are the most likely to be affected. 104

Warming in the western United States is projected to decrease snowpack, cause more winter flooding and reduced summer flows, and exacerbate competition for already overallocated freshwater resources. 105 Moreover, rising sea levels are expected to increase the salinity of surface and ground water through salt water intrusion, threatening drinking water supplies in places like New York City, southern Florida, and California’s Central Valley. 106

Together, these findings amply demonstrate that global warming presents an unprecedented, long-term, and wide-ranging threat to public health. Reducing greenhouse gas emissions from aircraft is a necessary step towards addressing these impacts.

97 Northeast Report, supra note 90, at ix-x.

98 EPA Climate Change Effects, supra note 86.

99 Id.

100 Northeast Report, supra note 90, at x.

101 EPA, Ground Level Ozone, Health and Environment, available at : http://www.epa.gov/air/ozonepollution/health.html

.

102 EPA Climate Change Effects, supra note 86.

103 EPA, Particulate Matter, Health and Environment, available at : http://www.epa.gov/air/particlepollution/health.html

.

104 Id

.

105 Working Group II Report, supra note 85, at 10.

106 EPA Climate Change Effects, supra note 86.

172. Aircraft Greenhouse Gas Emissions Cause and Contribute to the Endangerment of Public Welfare.

Emissions of greenhouse gases from airc raft engines are also endangering public welfare, 107 and many of these effects are directly rela ted to the public health impacts discussed above. For example, global climate change is already resulting in well-documented impacts on climate and weather, including air and ocean temp erature increases, widespread melting of snow and ice, changes in precipitation amounts and wind patterns, and more frequent extreme weather events such as hurricanes, heat waves, floods, and droughts. 108 Coastal areas are projected to be exposed to increased risk, such as erosion a nd flooding, due to climate change and sea level

rise. 109 As the IPCC has stated, “[m]any millions mo re people are projected to be flooded every year due to sea-level rise by the 2080s.” 110

In its recent assessment, the IPCC conclude d that “[o]bservationa l evidence from all

continents and most oceans s hows that many natural systems are being affected by regional climate changes, particularly temperature increases.” 111 With regard to natural systems involving snow, ice, and frozen ground such as permafrost, the evidence shows an enlargement and increased number of glacial lakes, increasi ng ground instability in permafrost regions, and rock avalanches in mountain regions. 112 In Glacier National Par k, the estimated number of glaciers has dropped from 150 to 26 since 1850, and th e remaining glaciers will be gone in the next 25 to 30 years if the current rate of melting continues. 113 It is also likely that temperature increases associated with global climate change will alter the disturbance regimes of northern hemisphere forests, resulting in earlier and longer fire seasons, an increase in disease and pests, and a greater amount of areas burned and experiencing high to extreme fire danger. 114 Climate change is expected to alter the geographic dist ribution of these forests, including New England sugar maples and boreal forests in Alaska, whic h may shift northward or to higher elevations. 115

Sea level rise is also resulting in the lo ss of wetlands and increasing damage from coastal flooding in many areas. 116 Coastal wetlands, including salt marshes and mangroves, are projected to be negatively aff ected by sea level rise, especially where they are constrained on their landward side or starved of sediment. 117 Wetlands can provide habitat for numerous

107 “Welfare” is defined under the Clean Air Act to includ e “effects on soil, water, crops, vegetation, manmade materials, animals, wildlife, weather, visi bility and climate.” 42 U.S.C. § 7602(h).

108 Working Group I Report Summary, supra note 12, at 5-9; see GAO R EPORT

, supra note 10, at 5-6.

109 Working Group II Report, supra note 85, at 6.

110 Id. at 7.

111 Id. at 1.

112 Id.

113 GAO R EPORT

, supra note 10 at 18.

114 Working Group II Report, supra note 85, at 3.

115 EPA Climate Change Effects, supra note 86.

116 Working Group II Report, supra note 85, at 3.

117 Id. at 6-7.

18species and nursery areas for fish, serve as a basis for many communities’ economic livelihoods, provide recreational opportunities, a nd protect local areas from flooding. 118 During the 21st century, sea level rise could conve rt as much as 22 percent of th e world’s coastal wetlands into

open water. 119 EPA has estimated that a two foot rise in sea level could eliminate 17-43 percent of wetlands in the United States, with more than half of the loss occurring in Louisiana. 120

Global climate change directly affects terr estrial biological systems, as evidenced by the poleward and upward shifts in the ranges of numerous plant and anim al species, as well as the earlier timing of spring events such as bird migration and egg-laying. 121 As the IPCC has found, “[t]he resilience of many ecosystems is likel y to be exceeded in this century by an unprecedented combination of climate ch ange, associated disturbances ( e.g. , flooding, drought, wildfire, insects, ocean acidification),” and ot her global change driver s such as pollution and over exploitation of resources. 122 In the Arctic, detrimental effects are expected to mammals, migratory birds, and other organi sms from reductions in sea ice, 123 increased coastal erosion, and an increase in the depth of seasonal thawing of permafrost. 124 Not surprisingly, approximately 20-30 percent of plant and animal species assessed so far will be at an increased risk of extinction if global average temper atures exceed 1.5-2.5°C (2.7-4.5°F). 125 According to one estimate, up to 35 percent of species in the re gions sampled will be committed to extinction by 2050 under a high climate-warming scenario. 126

Changes in global climate are also expected to have numerous impacts on marine and freshwater biological systems, such as shifts in ranges and changes in al gal, plankton, and fish abundance in high latitude oceans, increases in algal and zooplankton abundance in high-latitude and high-altitude lakes, and range changes and earlier migrations of fish in rivers. 127 In addition, the acidification of the oceans, which has already decreased in pH by 0.1 units on average due to the absorption of increasing atmo spheric levels of carbon dioxide, is expected to harm marine shell forming organisms and species dependant on them. 128

Corals are particularly vulnerable to thermal stress and already have low adaptive capacity to changes in their ecosystem. 129 For example, an increase in sea surface temperature

118 EPA Climate Change Effects, supra note 86.

119 Id.

120 Id.

121 Working Group II Report, supra note 85, at 2.

122 Id. at 5.

123 This is especially true for species like the polar bear, which is evolutionarily adapted to life on the sea ice and spends only short periods on land. See 72 Fed Reg. 1,064 (Jan. 9, 2007) (Proposed Rule To List the Polar Bear as Threatened Under the Endangered Species Act).

124 Working Group II Report, supra note 85, at 11.

125 Id. at 6.

126 Chris D. Thomas, et al.

, Extinction Risk From Climate Change , N ATURE 427 (Jan. 8, 2004) at 145-48.

127 Working Group II Report, supra note 85 at 2.

128 Id. at 6; see GAO R EPORT

, supra note 10, at 22.

129 Working Group II Report, supra note 85, at 6.

19of approximately 1-3°C (1.8-5.4°F) is projected to result in more frequent coral bleaching events and widespread mortality. 130 This is because even slightly elevated ocean temperatures can destroy the symbiotic relationship in corals be tween algae and animal polyps, leading to the collapse of entire reefs. 131 As the GAO has reported, continue d increases in water temperatures in the Florida Keys may result in more coral bleaching events and will adversely affect the area’s tourism and fishing industries. 132 In addition, the lobster fisheries in Long Island Sound

and the coastal waters off Rhode Island and South Cape Cod are likely to decline significantly by 2050, while cod is expected to di sappear by the end of the century. 133

Agriculture is highly sensitive to changes in climate, including increased temperatures and shifting rainfall patterns, as well as weather extremes, such as droughts, floods, and severe storms. The IPCC reports that temperature in creases resulting from greenhouse gas emissions are likely to impact agricultural practices in th e northern hemisphere, such as an earlier spring planting of crops. 134 Parts of Massachusetts, New Jersey, and Pennsylvania are likely to become unsuitable for growing popular vari eties of apples, blueberries, and cranberries, while milk production across the northeastern United States is projected to decline between five and 20 percent during certain months. 135 In addition, an increase in the frequency of droughts and floods is also expected to negatively affect crop production, especially at low latitudes. 136 Crop losses attributed to pests, pathogens, and weeds could also increase from the current 42 percent to over 50 percent of potential yi elds within the coming decade. 137

In sum, there is no dispute that global warming presents an unprecedented and wideranging threat to public welfare. As a result, EPA must take the necessary steps toward regulating greenhouse gas emissions from aircraft engines pursuant to Se ction 231 of the Clean

Air Act.

C. EPA Has Broad Discretion in Promul gating Regulations to Limit Greenhouse Gas Emissions from Aircraft Engines.

130 Id. The National Marine Fisheries Service has found that shallow reef habitats are especially vulnerable to increases in global air and sea temperatures due to coral bleaching. 76 Fed. Reg. 26 ,852, 26,858 (M ay 9, 2006) (Final Rule to List Elkhorn ( Acropora palmata ) and Staghorn ( A. cervicornis ) Corals as Threatened Under the Endangered Species Act). See also International Coral Reef Initiative, Ok inawa Declaration on Conservation and Restoration of Endangered Coral Reefs of the World (J uly 2, 2004) (finding that “the increase in sea surface temperatures, the decrease in carbonate levels as well as se a-level rise, caused by increasing anthropogenic CO2 in the atmosphere, all act synergistically to stress coral reef s, which lead to severe bleaching and extensive coral mortality”), available at : http://www.icriforum.org/secr etariat/oki_declaration.html.

131 Epstein & Mills, supra note 85, at 10, 77-79.

132 GAO R EPORT

, supra note 10, at 30-31.

133 Northeast Report, supra note 90, at xi.

134 Working Group II Report, supra note 85, at 3.

135 Northeast Report, supra note 90, at xi.

136 Working Group II Report, supra note 85, at 6.

137 Epstein & Mills, supra note 85, at 29.

20While EPA’s determination of whether greenhouse gas emissions from aircraft endanger public health or welfare presents a straightforw ard “yes or no” question, the realm of potential regulatory responses to an affi rmative finding is quite broad. This flexibility stems from Congress’ recognition, in drafting th e Clean Air Act, that not all pollutants could be controlled

in the same manner. See, e.g. , 42 U.S.C. § 7408(b) (requiring EPA to provide information regarding air pollution c ontrol techniques for criteria polluta nts, including “available technology and alternative methods of prevention and cont rol of air pollution,” as well as “data on alternative fuels, processes, and operating methods which will result in elim ination or significant reduction of emissions”). Accordingly, Congress provided EPA with broad authority to craft emissions standards that utilize multiple a pproaches in achieving pollution reductions. See

Mass. v. EPA , 127 S. Ct. at 1462 (once EPA makes a finding of endangerment regarding greenhouse gas emissions from motor vehicles, it “no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies”).

Specifically, Section 231 of the Act require s EPA to “issue proposed emission standards” applicable to any air pollutants from aircraft engines that c ontribute to air pollution that may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. § 7571(a)(2)(A). The Act broadly defines “emission standard” as:

a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emi ssions of air polluta nts on a continuous basis, including any requir ement relating to the operation or maintenance of a

source to assure continuous emission re duction, and any design, equipment, work practice or operational standard promulgated under this chapter.

Id. at § 7602(k).

As this definition demonstrates, EPA has the authority to regulate greenhouse gas emissions from aircraft through the use of opera tional or maintenance requirements, and any design, equipment, work practi ce or operational standards. See, e.g.

, Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist. , 541 U.S. 246, 252-53 (2004) (sta te rule prohibiting the purchase or lease of vehicles that fail to m eet stringent emission requirements constituted a “standard relating to the contro l of emissions” under Section 209(a) ; such a broad interpretation

was “consistent with the use of ‘standard’ throughout Title II of the CAA”). In fact, the only

limitation on EPA’s discretion to set “emission st andards” for aircraft engines is the Act’s restriction on changes that “would significantly increase noise or adversely affect safety.” Id. at § 7571(a)(2)(B)(ii).

Moreover, Section 231 allows EPA to limit emissions by establishing technology-forcing standards for aircraft engines. Congress deliber ately chose such an approach in the Clean Air Act to require EPA to “‘press for the deve lopment and application of improved technology rather than be limited by that which exists today,’” Natural Resources Defense Council v. U.S.

EPA , 655 F.2d 318, 328 (D.C. Cir. 1981) (quoting S. Rep. No. 91-1196, 91st Cong., 2d Sess. 24 (1970)), and to force the industr y “to develop pollution control de vices that might at the time appear to be economically or technologically infeasible.” Union Elec. Co. v. EPA , 427 U.S. 246, 257 (1976). Although Section 231 does place a greater emphasis on safety considerations

21than other provisions in the Act, EPA has ag reed that “section 231(b)’s forward-looking language” does not preclude the agency fr om setting technology-forcing standards. See 70 Fed. Reg. at 69,676 (“EPA does not agree that a tech nology-forcing standard would be precluded by section 231, in light of secti on 231(b)’s forward-looking langua ge. Nor would EPA have to demonstrate that a technology is cu rrently available univers ally or over a broad range of aircraft in order to base a standard on the emissions perf ormance of such technology – the Agency is not limited in identifying what is ‘t echnologically feasible’ as what is already technologically achieved.”).

EPA also has broad authority to regulate em issions from all classes of aircraft, including both new and in-use aircraft and aircraft engi nes. 42 U.S.C. § 7571(a )(2)(A) (authorizing EPA to issue proposed emission standards for air pollu tants from “any class or classes of aircraft engines”); see, e.g., 40 C.F.R. § 87.10 (prescribing fuel ve nting emissions standards for new and in-use aircraft). While Congress limited EPA’s authority to regulate onl y “new” motor vehicles and engines under Sections 202 and 213 of the Clean Air Act, 42 U.S.C. §§ 7521 & 7547,

Section 231 contains no such rest riction. “[W]here Congress incl udes particular language in one

section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Bates v.

United States , 522 U.S. 23, 29-30 (1997) (quotations omitted); see Reiter v. Sonotone Corp. , 442

U.S. 330, 339 (1979) (“In construing a statute we are obliged to give effect, if possible, to every word Congress used.”).

The duty to regulate air pollution from aviati on has not been left to EPA alone. Instead, Section 231 of the Act requires EPA to consult wi th the FAA in developing emissions standards for aircraft engines. 42 U.S.C. § 7571(a)(2)(B)(i). The FAA is also required by Section 232 to promulgate its own regulations “to insure complia nce with all standards pr escribed under section 7571” by EPA. Id. at § 7572(a). In issuing such regulat ions, the FAA “may execute any power or duty vested in [the FAA Administra tor] by any other provision of law.” Id. See, e.g. , 49

U.S.C. §§ 40103(b) (authorizing FAA to prescrib e air traffic regulations for using navigable airspace efficiently); 44505(a) (FAA shall develop and evaluate systems, procedures, facilities, and devices to provide for safe and efficient navigation and air traffi c control); 44704 (requiring

FAA to control or eliminate emissions from airc raft fuels that EPA finds endanger public health or welfare); 47107(a)(16) (authorizing FAA to condition approval of airport development projects or alterations base d on operational efficiency).

D. EPA’s Authority to Address the Glo bal Warming Impacts of Aircraft is

Consistent with International Law.

The Convention on International Civ il Aviation (the “Chicago Convention”), 138 to which the United States is a Party, supports EPA’s di scretion to regulate greenhouse gas emissions from aircraft. While the convention encourages parties to cooperate in securing the highest practicable degree of uniformity, 139 Article 38 recognizes the right of States to depart from

138 Convention on International Civil Aviation, Dec. 7, 1944, T.I.A.S. 1591, 61 Stat. 1180.

139 Article 37 provides: “Each contractin g State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.”

22international airworthiness st andards and procedures where they deem necessary by giving

notice to the International Civ il Aviation Organization (“ICAO”) 140 : “Any State ... which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international st andard, shall give immediate notification to the [ICAO] of the differences between its own practic e and that established by the inte rnational standard.” As EPA itself has recognized:

The Chicago Convention does not require all Contracting States to adopt

identical airworthiness standards. A lthough the Convention ur ges a high degree of uniformity, it is expected that Stat es will adopt their own airworthiness standards, and it is anticipa ted that some states may a dopt standards that are more stringent than those agreed upon by ICAO.

70 Fed. Reg. at 69,667. Thus, the convention permits countries to adopt aircraft emissions standards that are more stringent than the ICAO standards, and EPA, in consultation with the FAA, “retains the discretion to adopt more stri ngent emissions standards if the international consensus standards ultimately prove insufficient to protect U.S. air quality.” Id . at 69,664.

In fact, the ICAO is strongly encouraging States to adopt programs to address the significant and increasing climate impacts from aircraft. During the most recent meeting of the ICAO Assembly in September 2007, the Assembly amended its policies and practices related to environmental protection to encourage States to proactively address av iation’s contribution to global warming. 141 Pursuant to a new Appendix K – “ ICAO Programme of Action on

international aviati on and climate change ,” the ICAO Assembly is urgi ng States to undertake an array of measures to address the climate imp acts of aircraft includi ng by: (1) encouraging development of “more environmentally friendly efficient engine and aircraft designs”; (2) accelerating “the development and implementation of fuel efficient routings and procedures to reduce aviation emissions”; (3) acc elerating efforts “to achieve environmental benefits through the application of satellite-based technologies that improve the efficiency of air navigation”; 142
and (4) reducing barriers “to enable impleme ntation of new ATM operating concepts for environmentally efficient use of airspace.” 143 A comprehensive program specifically designed to address the climate impacts of all aircraft operating in the United Stat es is clearly needed.

Finally, adopting standards to address the climate impact of aviation is consistent with the United States’ obligation under the UN Framework Convention on Climate Change

140 The ICAO, a UN specialized agency established pursuant to the Chicago Convention, is responsible for coordinating and regulating international aviation.

141 See Resolution 17/1: Consolidated statement of continuing ICAO policies and practices related to environmental protection (amending Resolution A35-5 (WP/35)), A/36-WP/355 P/53 (Sept. 9, 2007), available at : http://www.icao.int/icao/en/assembl/a36/wp/wp355_en.pdf

.

142 The FAA recently announced that it was proposing a new rule requiring all aircraft flying in the nation’s busiest airspace to have satellite-based navigation. 72 Fed. Reg. 56 ,947 (Oct. 5, 2007). Howeve r, more is needed in both the near- and long-term to address greenhouse gas emissions from aircraft. For example, while FAA estimates that the rule will result in approximately nineteen million metric tons less carbon dioxide emissions, the vast majority of this reduction, eighteen milli on tons, would not take place until between 2017 and 2035. Id . at 56,965.

143 Id . at Appendix K, ¶ 14.

23(“UNFCCC”). Article 4 of the UNFCCC obligates th e United States to “a dopt national policies and take corresponding measures on the mitigati on of climate change, by limiting anthropogenic emissions of greenhouse gases.” 144

E. EPA Has the Authority Under Both the Clean Air Act and International Law to Regulate Greenhouse Gas Emissions from Foreign Aircraft Operating in the United

States.

As described above, all aircraft operating in the Unite d States contribute to global warming. Therefore, EPA must regulate greenhous e gas emissions from not only U.S. certified aircraft, but also foreign ai rcraft arriving in and departing from the United States.

Designing a regulatory program to address the climate impacts from aviation that extends to foreign aircraft operating within the United States is consistent with U.S. law. First, the Clean Air Act gives EPA unambiguous authority to regu late air pollutants from both U.S.-certified aircraft and foreign aircraft. Pu rsuant to Section 231(2)(A) of the Act, EPA is authorized to set emission standards from “any class or classes of aircraft engines.” 42 U.S.C. § 7571(a)(2)(A). The EPA regulations define “aircraft” as “any airp lane for which a U.S. standard airworthiness certificate or equivalent foreign airworthiness certificate is issued.” 40 C.F.R § 87.1. The FAA, which is responsible under the Ac t for prescribing regulations to implement emission standards for aircraft established by EPA, 42 U.S.C. § 7572(a), also has author ity to regulate foreign

aircraft. See, e.g. , 14 C.F.R. § 129.11 (operation specifica tions for foreign air carriers and foreign operators of U.S.-registered aircraft engaged in common carriage); 14 C.F.R. § 91.711 (special rules for foreign civil aircraft).

In addition, establishing greenhouse gas emissi on standards for foreign aircraft operating within U.S. airspace is consistent not only with general principles of in ternational law but also the United States’ obligations under both the UNFCCC and the Chicago Convention. International law requires nations to ensure that activities within their territory do not cause transboundary environmental harm. For exampl e, in adopting the 1972 Declaration of the

United Nations Convention on the Human Enviro nment (“Stockholm Declaration”) and the 1992 Rio Declaration on Environment and Development, the United States and 179 other nations agreed that States must “ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 145 The preamble to the UNFCCC, to whic h the United States is a party, applies this well-established principl e to greenhouse gas emissions. 146 Allowing aircraft flying within

144 United Nations Framework Convention on Climate Cha nge (UNFCCC), art. 4, § 2( a), May 9, 1992, Doc. A/AC.237/18, (Part 11)/Add.1 and Corr.1, 31 I.L.M. 848.

145 Stockholm Declaration of the United Nations Conference on the Human Environment, Principle 21, G.A. Res. 2997, U.N. GAOR, 27th Sess., U.N. Doc. A/ Conf.48/14/Rev/1, 11 I.L.M. 1416 (1972); Rio Declaration on Environment and Development, supra , at Principle 2. The Heavy Metals Protocol to the Convention on LongRange Transboundary Air Pollu tion, which the United States has accepted, echoes the Rio Declaration’s agreement that states must prevent transboundary harm. Heavy Metals Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Heavy Metals, preamble, June 24, 1998, U.N. Doc. E/ECE/EB.AIR/66/1999, U.N. Sales No. E.99.II.E.21 (1999).

24U.S. airspace, whether U.S. or foreign, to cont inue to emit significant an d increasing levels of greenhouse gases that are contributing to global c limate change contravenes this principle.

International law also recognizes the sovere ign right of nations to regulate activities within their jurisdiction or control, especially wh ere those activities adversely affect the health

and welfare of their own citizens. 147 Therefore, EPA has the authority not only to regulate and

establish emissions standards for aircraft certif ied pursuant to U.S. laws and regulations – whether traveling domestically or abroad – but also to address greenhouse gas emissions from foreign aircraft operating within U.S. territory.

Finally, the United States’ obligations unde r the Chicago Convention do not constrain EPA’s authority to adopt a program to address aviation’s global warming impacts that includes foreign aircraft as well. In fact, numerous State Parties to the Ch icago Convention have endorsed this view. For example, the Europ ean Commission, recognizing climate change as “the most significant adverse impact of aviation,” 148 adopted a proposal in December 2006 to include greenhouse gas emissions from all domestic and international f lights arriving in and departing from EU airports, incl uding U.S.-certified aircraft, in the EU Emissions Trading Scheme (“ETS”). 149 The European Parliament recently voted to strengthen the proposal by moving the compliance date from 2012 to 2011. 150 If the proposal is a dopted, aircraft from nonEU countries not meeting the emission standards established within the EU will be required to purchase greenhouse gas emission allo wances in order to land at and take off from European airports.

In addition, a wide array of measures is av ailable to address the climate impacts from aircraft, including many endorsed by the ICAO, such as developing new operational and procedural measures. Many of these could be a pplied to foreign aircraft without imposing more

146 UNFCCC Preamble, supra note 144 (“States have, in accordance with the Charter of the United Nations and the principles of international law...the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”); see also

United States v. Canada , Arbitral Tribunal, 1941, 3 UN Rep. Int’l Arb. Awards (1941) (“under the principles of international law, as well as the law of the United States, no State has the ri ght to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is establis hed by clear and convincing evidence.”)

147 Restatement of the Law Third, The Foreign Relations Law of the United States, The American Law Institute, Vol. 1 § 402 (stating that “[A] state has jurisdiction to prescribe law with respect to... conduct that, wholly or in substantial part, takes place within its territory.”

148 A VIATION AND THE E NVIRONMENT

, supra note 5, at 12.

149 Commission Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community , 2006/0304 (COD), COM(2006) 818 final (Dec. 20, 2006), available at : http://eur

lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0818en01.pdf.

150 Resolution on the proposal for a directive of the Eur opean Parliament and of the Council amending Directive

2003/87/EC so as to include aviation activities in the sche me for greenhouse gas emission allowance trading within the Community, E UR . P ARL . D OC

. (COM(2006)0818 – C6-0011/2007 – 2006/0304(COD)) (Nov. 13, 2007),

available at : http://www.europarl.europa.eu/sides/getDoc.do?Type=TA&Reference=P6-TA-2007

- 0505&language=EN

.

25stringent airworthiness standards as provided under Article 33 of the convention. 151 Finally, EPA must recognize that its primar y responsibility is to protect U. S. public health and welfare, and the United States’ obligations under international agreements such as the Chicago Convention are applicable only to the extent they do not e ndanger U.S. public health and

welfare.

In sum, EPA has a clear and unambiguous mandate under the Clean Air Act to set emissions standards for aircraft, including foreign aircraft, necessa ry to prevent the significant harm that will occur as a result of global warming.

CONCLUSION

Based on the foregoing, Petitioners respectfully request that EPA:

(1) Make a finding that greenhouse gas em issions from aircraft engines may reasonably be anticipated to endanger public health and welfare pursuant to Section 231(a)(2)(A) of the Clean Ai r Act, 42 U.S.C. § 7571(a)(2)(A);

(2) Issue proposed standards for greenhous e gas emissions from aircraft engines pursuant to Section 231(a)(2)(A) of the Clean Air Act, 42 U.S.C. § 7571(a)(2)(A);

and

(3) Promulgate final regulations within 90 days of the issuance of such proposed standards pursuant to Se ction 231(a)(3) of the Clean Air Act, 42 U.S.C. § 7571(a)(3).

Sincerely,

Alice R. Thomas George M. Torgun Martin Wagner Earthjustice 426 17th Street, 6th Floor Oakland, CA 94612 (510) 550-6700

Attorneys for Petitioners Friends of the Earth, Oceana, and the Center for Biological Diversity

151 Convention on International Civil Aviation, art. 33, Dec. 7, 1944, T.I.A.S. 1591, 61 Stat. 1180 ( “ Certificates of airworthiness and certificates of compet ency and licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.”).

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