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 Clean 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 environmental challenges of our time. 

Concentrations of greenhouse gases,1

 primarily from society’s burning of fossil fuels and the 

destruction of forests, are increasing 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, including 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 increasing and potent source of greenhouse gas emissions, 

due in part to the unprecedented growth in air travel 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 (“CO2”), methane (“CH4”) and nitrous oxide (“N2O”). 

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and 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 emissions 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, aircraft 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 emissions from aircraft engines may 

reasonably be anticipated to endanger public health and welfare pursuant to 

Section 231(a)(2)(A) of the Clean Air Act, 42 U.S.C. § 7571(a)(2)(A); 

(2) Issue proposed standards for greenhouse 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 Section 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 petition. Therefore, Petitioners hereby request a 

substantive response to this petition within one hundred eighty (180) calendar 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

 ROYAL AERONAUTICAL SOCIETY, AIR TRAVEL – GREENER BY DESIGN, 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, STERN REVIEW ON THE ECONOMICS OF CLIMATE CHANGE, Cambridge University Press (Oct. 

30, 2006) at 172, available at: www.sternreview.org.uk, [hereinafter Stern Report]. 

5

 Ian A. Waitz, et al., AVIATION AND THE ENVIRONMENT: A NATIONAL VISION STATEMENT, FRAMEWORK FOR 

GOALS AND RECOMMENDED ACTIONS, Report to the United States Congress (Dec. 2004) at 18, available at: 

http://web.mit.edu/aeroastro/partner/reports/congrept_aviation_envirn.pdf [hereinafter AVIATION AND THE 

ENVIRONMENT]. 

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://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2 

006&nu_doc=818. 

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will 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 network of grassroots 

environmental groups, with affiliates in 70 countries. 

Oceana is a non-profit international 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, California, Massachusetts, New York, and Oregon) and 

three foreign countries (Chile, Belgium, and Spain). Through its policy, scientific, litigation, 

and grass-roots activities, Oceana has been a prominent 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, Oregon, 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 biodiversity, native species, 

ecosystems, public lands and waters, and public health. Because climate change from society’s 

production of greenhouse gases is one of the foremost threats to the earth’s biodiversity, the 

environment, and public health, the Center’s Climate, 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 the polar bear, staghorn and elkhorn corals in 

the Caribbean, twelve of the world’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 requested 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 fossil fuel combustion, and shipping worldwide 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. 

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Section 202 of the Clear Air Act, and was a party 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 pollutant from any class or classes of aircraft 

engines which in his judgment causes, or contributes to, air pollution which may 

reasonably be anticipated to endanger public health or welfare. 

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

Administrator of the Federal Aviation Administration (“FAA”). Id. at § 7571(a)(2)(B). The Act 

further requires EPA to promulgate final regulations 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 issued 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 adopting or attempting to 

enforce any emissions standards for aircraft engines unless they are identical to standards 

promulgated by EPA. 42 U.S.C. § 7573. 

Although EPA has occasionally issued standards 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 global 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 pollutant, to the extent the Administrator has identified such 

precursor or precursors for the particular purpose for which the term ‘air 

pollutant’ is used. 

Id. at § 7602(g). The U.S. Supreme Court has firmly established that greenhouse gases – 

including carbon dioxide – constitute air pollutants under Section 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). 

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section 302(g)”).9 Following that decision, the President confirmed the need for EPA to use its 

authority to protect the environment from greenhouse gas emissions from mobile engine 

sources. See Executive Order 13432: Cooperation Among Agencies in Protecting the 

Environment with Respect to Greenhouse Gas Emissions From Motor Vehicles, Nonroad 

Vehicles, and Nonroad Engines, 72 Fed. Reg. 27,717 (May 16, 2007). 

Given these mandates, EPA has the authority to regulate greenhouse gas emissions from 

aircraft engines as “air pollutants” 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 scientific dispute that human production of greenhouse gases, 

including carbon dioxide, methane, and nitrous oxide, are responsible for the unprecedented rate 

of warming observed over 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 and ocean temperatures, widespread melting of snow 

and ice, and rising global 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 greenhouse gas concentrations.”13 Thus, the world’s leading scientific 

body on the subject has now concluded, with greater than 90 percent certainty, that emissions of 

greenhouse gases are responsible 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; GOVERNMENT 

ACCOUNTABILITY OFFICE, CLIMATE CHANGE: AGENCIES SHOULD DEVELOP GUIDANCE FOR ADDRESSING THE 

EFFECTS ON FEDERAL LAND AND WATER RESOURCES (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 international 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, SUMMARY FOR POLICYMAKERS: CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS; CONTRIBUTION OF 

WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE 

CHANGE (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 the 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 per 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”). 

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In the words of the IPCC, carbon dioxide is “the most important 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 total warming emissions in 2005.19 One of the primary sources of 

such emissions is from the transportation sector, 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 anthropogenic activities.20 According to the IPCC, greenhouse gas emissions 

from transport are expected to increase 80 percent between 2002 and 2030.21 

B. Aircraft Engines Emit Greenhouse 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 less than one percent each of oxides of nitrogen (“NOX”), carbon 

monoxide, oxides of sulfur, and other trace components including hydrocarbons such as methane 

and soot. 22 These emissions contribute to global warming in several ways. First, aircraft emit 

significant amounts of carbon dioxide, 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, CLIMATE CHANGE 2007: MITIGATION OF CLIMATE CHANGE; CONTRIBUTION OF WORKING GROUP III TO THE 

FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (May 2007) at 357
	

[hereinafter WORKING GROUP III REPORT]. 22 FAA, OFFICE OF ENVIRONMENT AND ENERGY, AVIATION AND EMISSION: A PRIMER (Jan. 2005) at 1, available at:
	

http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/media/aeprimer.pdf [hereinafter FAA 

Report].
	

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transportation end-use sector.23 However aircraft carbon dioxide emissions, if measured at 

ground level, are only “a fraction” of aviation’s total contribution to climate change.24 

NOX emissions from aircraft contribute to the formation of ozone, a greenhouse gas. 

Moreover, emissions of NOX in the upper troposphere and tropopause, where most aviation 

emissions occur, result in greater concentrations of ozone than ground-level emissions.25 

Aircraft also contribute to climate change by altering cloud cover patterns. 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 warming 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, further contributing to global warming.28 

Therefore, greenhouse gas emissions from aircraft 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 report by the UK Royal Commission on Environmental 

Protection stated that the net effect of ozone, contrail, and aviation-induced cirrus is expected to 

be three times the radiative forcing due to the CO2 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 anticipated 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, TYNDALL CENTRE FOR CLIMATE CHANGE RESEARCH (Feb. 2006) 

at 18, available at http://www.tyndall.ac.uk/research/theme2/project_overviews/t3_23.shtml, click link at 

“Technical Report”. See also, IPCC, TECHNICAL SUMMARY; CONTRIBUTION OF WORKING GROUP III TO THE 

FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, (May 2007) at 51 

[hereinafter Working Group III Technical Summary]. 

25 EPA Inventory, supra note 2, at 1-4; see also IPCC, AVIATION AND THE GLOBAL ATMOSPHERE (1999) at Chapter 

1.3.3, available at: http://www.grida.no/climate/ipcc/aviation/index.htm [hereinafter IPCC Aviation Report]. 

26 IPCC, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS; CONTRIBUTION OF WORKING GROUP I TO THE 

FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (Feb. 2007) at 186 

[hereinafter Working Group I Report]. 

27 IPCC, AVIATION AND THE GLOBAL ATMOSPHERE, (June 1999) at Summary for Policymakers, 4.5 [hereinafter 

IPCC Aviation Report]. 

28 Id. 

29 ROYAL COMMISSION ON ENVIRONMENTAL PROTECTION (RCEP), THE ENVIRONMENTAL EFFECTS OF CIVIL 

AIRCRAFT IN FLIGHT, London, UK (Nov. 29, 2002) at 18, available at: http://www.rcep.org.uk/avreport.htm. 

30 Id. at 19. 

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worldwide.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 CO2 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 factor 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 unfettered 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 restriction on the number of flights, aircraft, and routes.35 

In short, there is an unrelenting global demand for increased 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 facilitated by the policies of the United States government 

and its trading partners. It should 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 reductions 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 within 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 increase by 3.5 percent annually over the next decade, and 

approximately five percent per year worldwide. AVIATION AND THE ENVIRONMENT, supra note 5, at 21; ICAO 

Working Paper, Towards a Carbon Neutral and Eventually Carbon Free Future, INT’L AIR TRANSPORT ASS’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 Secretary 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. 

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

dioxide and other fuel-related emissions from aircraft.38 

Voluntary measures alone will not be sufficient to bring about the changes that are 

needed to address the significant and 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 near-term, but also to increase 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 standards give manufacturers sufficient lead time. 

Final Rule for Control of Air Pollution From Aircraft 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 and 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 measures that can reduce fuel use, and 

consequently, greenhouse gas emissions from aircraft. Mandating the use of these procedures 

will result in immediate, near-term, and meaningful improvements in aviation’s climate 

impact.41 The IPCC estimates that improved aircraft 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 JOURNAL, Vol. 43, No. 10, 2108 (Oct. 2005). 

39 According to the IPCC, given the anticipated five percent annual growth in aviation, increases in greenhouse gas 

emissions from aircraft will outpace improvements that can be expected through evolutionary changes in engine and 

aircraft design. WORKING GROUP III REPORT, 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://eurlex.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. airline industry’s fleets remain outdated and domestic airline companies have been 

slow to order newer, more fuel efficient aircraft. Kyle Peterson, U.S. airlines bide their time as fleet needs grow, 

REUTERS (June 12, 2007), available at: http://uk.reuters.com/article/basicIndustries/idUKN1226568120070612. 

41 AVIATION AND THE ENVIRONMENT, supra note 5, at 33-34. 

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

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•	 minimizing engine idling time on runways43 and employing single engine taxiing;44 

•	 reducing engine thrust and reverse during high-intensity periods such as take-off and 

landing;45 

•	 optimizing timetables, route networks, and 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 cirrus cloud formation, thereby further reducing environmental 

impacts.51 

A 2004 Report to Congress, prepared on behalf 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 continuous descent approach procedures which have 

been shown not only to reduce noise impacts by keeping aircraft higher for longer, but also to 

reduce fuel burn and emissions of pollutants.53 Another example successfully piloted at San 

Francisco International Airport combined existing technologies to increase the number of 

landings per hour, with the aim of reducing delays by 25 percent and decreasing the need for 

aircraft to circle while awaiting clearance for landing.54 

43 CONTROLLING AIRPORT RELATED POLLUTION, CCAP & NESCAUM (June 2003) at III-8, available at: 

http://bronze.nescaum.org/workgroup/aircraftport/Aviation_Final_Report.pdf, [hereinafter CCAP Report]. 

44 AVIATION AND THE ENVIRONMENT, 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 refer 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 AVIATION AND THE ENVIRONMENT, supra note 5, at 34. 

48 AVIATION AND THE ENVIRONMENT, supra note 5, at 34. 

49 Id. 

50 Id. 

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

52 AVIATION AND THE ENVIRONMENT, supra note 5, at 34. 

53 Id. 

54 Id. 

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Measures to reduce the global warming impact 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 reduce aviation fuel use by between six and eighteen 

percent, and other operations measures could result 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 include any measures to address the climate change impacts of aviation. In 

fact, neither the 2005 nor the 2006 NextGen progress report contains 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 efficiency 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 materials 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 the aircraft much lighter and 20 percent more 

fuel efficient than any metal aircraft of similar size.61 

Weight could also be removed from the nacelle 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 aircraft, 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, 

CLIMATE SCIENCE WATCH (July 2007), available at: http://www.climatesciencewatch.org/fileuploads/NextGen_final_18jul07.pdf. 

56 International Civil Aviation Organization, ENVIRONMENTAL REPORT 2007 (2007) at 108, available at 

http://www.icao.int/icao/en/env/pubs/Env_Report_07.pdf [hereinafter ICAO ENVIRONMENTAL REPORT]. 

57 NextGen is comprised of representatives of the Department of Transportation (with FAA as the lead planning 

agency), Homeland Security, the Departments of Defense and Commerce, NASA, and the White House Office of 

Science and Technology Policy, with the oversight of the Joint Planning and Development 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/commercial/787family/background.html [hereinafter Boeing 787 Dreamliner Background]. 

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

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

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Other 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 more 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, such 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 efficiency can result in significant emissions 

reductions. 

While these technologies are currently available, 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 incorporate the engine, wings, and body of 

an aircraft into a single lifting surface and result in increased fuel efficiency and fewer 

emissions.70 This type of aircraft could reduce fuel burn by 20 to 30 percent 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 goals of reducing greenhouse gas emissions and 

reducing noise.74 

64 Rolls Royce, Trent 1000, Leading Technology, available at: http://www.rollsroyce.com/civil_aerospace/products/airlines/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; Glenn Research Reduces Harmful 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, AVIATION WEEK & SPACE 

TECHNOLOGY; AIR TRANSPORT, 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, ASSOC. PRESS (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/. 

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Advances in aircraft fuel efficiency can have multiple benefits by facilitating 

improvements in operational practices. For example, more fuel efficient aircraft may help 

reduce or eliminate stopovers that require additional take-off periods, 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 concluded, however, that without more funding and 

the development of goals to specifically address the global warming impacts of aircraft, future 

emissions reductions goals – while technologically feasible – may not be met because an 

insufficient number of technology options will be brought to a readiness 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 Could 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 partnership 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 Zealand 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 produce biofuels suitable for use in aviation.82 

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

76 AVIATION AND THE ENVIRONMENT, supra note 5, at 36. 

77 Id. 

78 Boeing and Virgin Atlantic Announce Environmental Partnership, NAFTC ENEWS (May 2007), available at: 

http://www.naftc.wvu.edu/eNews/May07/virgin.html. 

79 Anita LaFond, Boeing, Virgin Atlantic Join For Biofuel Development; Virgin Atlantic Puts In Big Order For 

Boeing's Dreamliners, MANUFACTURING.NET; MANAGEMENT NEWS NOW (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 NEWS ONLINE (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, MACHINE DESIGN (June 21, 2007), available at: 

http://machinedesign.com/ContentItem/67970/BoeingandVirginlaunchbiofueleffort.aspx. 

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Although the benefits of requiring the use of biofuels for any transportation sector 

remain uncertain,83 to the extent that concerns are sufficiently addressed, the development of 

alternative fuels for use in aircraft is promising. Regulatory measures limiting greenhouse gas 

emissions from aircraft would increase the incentives to develop and use alternative fuels that 

could significantly reduce 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 health 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 pollutants that are causing and contributing to global climate change 

with severe environmental consequences for the planet and all of its inhabitants. EPA has broad 

discretion in promulgating regulations to limit greenhouse gases from aviation. Moreover, 

numerous measures are currently available that 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 within reasonable timeframes. Consequently, 

Petitioners request that EPA undertake its mandatory duty to regulate greenhouse gas emissions 

from aircraft engines. 

A. Greenhouse Gas Emissions from Aircraft 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 courts 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 other greenhouse gases “are without 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 Aircraft 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, remain 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. 

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evidence that greenhouse gas emissions from anthropogenic 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 potential 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 obligation 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 precautionary and preventive orientation and the nature 

of the Administrator’s statutory responsibilities”). 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 increased heat-related mortalities, the spread of infectious disease 

vectors, greater air and water pollution, an increase 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 climate. Extreme temperatures can directly 

lead to loss of life, while climate-related disturbances in ecological systems, such 

as changes in the range of infective parasites, can indirectly impact the incidence 

of serious infectious diseases. In addition, 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 cruise altitudes are “directly harmful to 

human health and the environment” since they are “considered to be a precursor of tropospheric ozone and a 

contributor to greenhouse gas.” 62 Fed. Reg. 25,356, 25,358 (May 8, 1997). 

85 IPCC, SUMMARY FOR POLICYMAKERS: CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY, 

WORKING GROUP II CONTRIBUTION TO THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE FOURTH 

ASSESSMENT REPORT (April, 2007) at 3 [hereinafter Working Group II Report]; see generally Paul R. Epstein and 

Evan Mills, CLIMATE CHANGE FUTURES: HEALTH, ECOLOGICAL AND ECONOMIC DIMENSIONS (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 Climate Change Effects]. 

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Negative health effects from rising temperatures and sea levels worldwide, especially in 

developing countries, are expected to outweigh any anticipated benefits 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 climate change was responsible for at least 154,000 

deaths worldwide in 2000.88 

Climate change is expected to increase 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 United 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 change may result in more deaths, injuries, and 

stress-related disorders.92 For example, in heavily populated delta regions, coastal areas, and 

small islands, sea level rise is anticipated to exacerbate flooding, storm surges, beach erosion, 

and other hazards, thus threatening vital infrastructure and settlements.93 In the United States, 

sea levels have already risen five to six inches more than the global 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 experience 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, THE WORLD HEALTH REPORT 2002: REDUCING RISKS, PROMOTING HEALTHY LIFE (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 PETER C. FRUMHOFF, ET AL., CONFRONTING CLIMATE CHANGE IN THE U.S. NORTHEAST: SCIENCE, IMPACTS, AND 

SOLUTIONS (July 2007) at xi, available at: http://www.climatechoices.org/ne/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. 

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Philadelphia averaging more than 30 days with high temperatures above 100°F each year.97 

Segments of the population that are particularly vulnerable, such as those 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 frequency and severity of heat waves, higher 

temperatures and sunlight, combined with other pollutants such as NOX 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, throat 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 wildfires 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 irritation 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, certain vulnerable segments of the population, 

such as children with asthma and the elderly, 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. 

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2. Aircraft Greenhouse Gas Emissions Cause and Contribute to the 

Endangerment of Public Welfare. 

Emissions of greenhouse gases from aircraft engines are also endangering public 

welfare,107 and many of these effects are directly related 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 temperature 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 and flooding, due to climate change and sea level 

rise.109 As the IPCC has stated, “[m]any millions more people are projected to be flooded every 

year due to sea-level rise by the 2080s.”110 

In its recent assessment, the IPCC concluded that “[o]bservational evidence from all 

continents and most oceans shows 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, increasing ground instability in permafrost regions, and 

rock avalanches in mountain regions.112 In Glacier National Park, the estimated number of 

glaciers has dropped from 150 to 26 since 1850, and the 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 distribution of these forests, including New England 

sugar maples and boreal forests in Alaska, which may shift northward or to higher elevations.115 

Sea level rise is also resulting in the loss of wetlands and increasing damage from coastal 

flooding in many areas.116 Coastal wetlands, including salt marshes and mangroves, are 

projected to be negatively affected 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 include “effects on soil, water, crops, vegetation, manmade 

materials, animals, wildlife, weather, visibility and climate.” 42 U.S.C. § 7602(h). 

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

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species and nursery areas for fish, serve as a basis for many communities’ economic livelihoods, 

provide recreational opportunities, and protect local areas from flooding.118 During the 21st 

century, sea level rise could convert as much as 22 percent of the 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 terrestrial biological systems, as evidenced by the 

poleward and upward shifts in the ranges of numerous plant and animal 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 likely to be exceeded in this century by an 

unprecedented combination of climate change, associated disturbances (e.g., flooding, drought, 

wildfire, insects, ocean acidification),” and other global change drivers such as pollution and 

over exploitation of resources.122 In the Arctic, detrimental effects are expected to mammals, 

migratory birds, and other organisms 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 temperatures exceed 1.5-2.5°C (2.7-4.5°F).125 According to one 

estimate, up to 35 percent of species in the regions 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 algal, 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 atmospheric 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, NATURE 427 (Jan. 8, 2004) at 145-48. 

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

128 Id. at 6; see GAO REPORT, supra note 10, at 22. 

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

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of 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 between algae and animal polyps, leading to the 

collapse of entire reefs.131 As the GAO has reported, continued 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 disappear 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 increases resulting from greenhouse gas emissions 

are likely to impact agricultural practices in the 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 varieties 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 yields 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 Section 231 of the Clean 

Air Act. 

C. EPA Has Broad Discretion in Promulgating 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 (May 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, Okinawa Declaration on Conservation and 

Restoration of Endangered Coral Reefs of the World (July 2, 2004) (finding that “the increase in sea surface 

temperatures, the decrease in carbonate levels as well as sea-level rise, caused by increasing anthropogenic CO2 in 

the atmosphere, all act synergistically to stress coral reefs, which lead to severe bleaching and extensive coral 

mortality”), available at: http://www.icriforum.org/secretariat/oki_declaration.html. 

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

132 GAO REPORT, 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. 

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While EPA’s determination of whether greenhouse gas emissions from aircraft endanger 

public health or welfare presents a straightforward “yes or no” question, the realm of potential 

regulatory responses to an affirmative finding is quite broad. This flexibility stems from 

Congress’ recognition, in drafting the 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 control techniques for criteria pollutants, including “available technology 

and alternative methods of prevention and control of air pollution,” as well as “data on 

alternative fuels, processes, and operating methods which will result in elimination or significant 

reduction of emissions”). Accordingly, Congress provided EPA with broad authority to craft 

emissions standards that utilize multiple approaches 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 requires EPA to “issue proposed emission standards” 

applicable to any air pollutants from aircraft engines that contribute 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 emissions of air pollutants on a continuous 

basis, including any requirement relating to the operation or maintenance of a 

source to assure continuous emission reduction, 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 operational or maintenance requirements, and any 

design, equipment, work practice or operational standards. See, e.g., Engine Mfrs. Ass’n v. 

South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-53 (2004) (state rule prohibiting the 

purchase or lease of vehicles that fail to meet stringent emission requirements constituted a 

“standard relating to the control 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 standards” 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 deliberately chose such an approach in the Clean Air 

Act to require EPA to “‘press for the development 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 industry “to develop pollution control devices 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 

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than other provisions in the Act, EPA has agreed that “section 231(b)’s forward-looking 

language” does not preclude the agency from setting technology-forcing standards. See 70 Fed. 

Reg. at 69,676 (“EPA does not agree that a technology-forcing standard would be precluded by 

section 231, in light of section 231(b)’s forward-looking language. Nor would EPA have to 

demonstrate that a technology is currently available universally or over a broad range of aircraft 

in order to base a standard on the emissions performance of such technology – the Agency is not 

limited in identifying what is ‘technologically feasible’ as what is already technologically 

achieved.”). 

EPA also has broad authority to regulate emissions from all classes of aircraft, including 

both new and in-use aircraft and aircraft engines. 42 U.S.C. § 7571(a)(2)(A) (authorizing EPA 

to issue proposed emission standards for air pollutants from “any class or classes of aircraft 

engines”); see, e.g., 40 C.F.R. § 87.10 (prescribing fuel venting emissions standards for new and 

in-use aircraft). While Congress limited EPA’s authority to regulate only “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 restriction. “[W]here Congress includes 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 aviation has not been left to EPA alone. Instead, 

Section 231 of the Act requires EPA to consult with 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 compliance with all standards prescribed under section 

7571” by EPA. Id. at § 7572(a). In issuing such regulations, the FAA “may execute any power 

or duty vested in [the FAA Administrator] by any other provision of law.” Id. See, e.g., 49 

U.S.C. §§ 40103(b) (authorizing FAA to prescribe 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 traffic control); 44704 (requiring 

FAA to control or eliminate emissions from aircraft fuels that EPA finds endanger public health 

or welfare); 47107(a)(16) (authorizing FAA to condition approval of airport development 

projects or alterations based on operational efficiency). 

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

Consistent with International Law. 

The Convention on International Civil Aviation (the “Chicago Convention”),138 to which 

the United States is a Party, supports EPA’s discretion 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 contracting 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.” 

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international airworthiness standards and procedures where they deem necessary by giving 

notice to the International Civil 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 standard, shall give immediate notification to the [ICAO] of the 

differences between its own practice and that established by the international standard.” As EPA 

itself has recognized: 

The Chicago Convention does not require all Contracting States to adopt 

identical airworthiness standards. Although the Convention urges a high degree 

of uniformity, it is expected that States will adopt their own airworthiness 

standards, and it is anticipated that some states may adopt 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 stringent 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 aviation’s contribution to 

global warming.141 Pursuant to a new Appendix K – “ICAO Programme of Action on 

international aviation and climate change,” the ICAO Assembly is urging States to undertake an 

array of measures to address the climate impacts of aircraft including 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) accelerating 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 implementation 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 States 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). However, 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 million tons, would not take place until between 2017 and 2035. Id. at 56,965. 

143 Id. at Appendix K, ¶ 14. 

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(“UNFCCC”). Article 4 of the UNFCCC obligates the United States to “adopt national policies 

and take corresponding measures on the mitigation 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 United States contribute to global 

warming. Therefore, EPA must regulate greenhouse gas emissions from not only U.S. certified 

aircraft, but also foreign aircraft 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 regulate air pollutants from both U.S.-certified 

aircraft and foreign aircraft. Pursuant 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 airplane 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 Act for prescribing regulations to implement emission standards 

for aircraft established by EPA, 42 U.S.C. § 7572(a), also has authority to regulate foreign 

aircraft. See, e.g., 14 C.F.R. § 129.11 (operation specifications 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 emission standards for foreign aircraft operating 

within U.S. airspace is consistent not only with general principles of international 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 example, in adopting the 1972 Declaration of the 

United Nations Convention on the Human Environment (“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 which the United States is a party, applies 

this well-established principle to greenhouse gas emissions.146 Allowing aircraft flying within 

144 United Nations Framework Convention on Climate Change (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 Pollution, 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). 

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U.S. airspace, whether U.S. or foreign, to continue to emit significant and increasing levels of 

greenhouse gases that are contributing to global climate change contravenes this principle. 

International law also recognizes the sovereign right of nations to regulate activities 

within their jurisdiction or control, especially where 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 certified 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 under 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 Chicago Convention have 

endorsed this view. For example, the European 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 flights arriving in and 

departing from EU airports, including 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 adopted, aircraft from nonEU countries not meeting the emission standards established within the EU will be required to 

purchase greenhouse gas emission allowances in order to land at and take off from European 

airports. 

In addition, a wide array of measures is available 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 applied 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 right 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 established 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 AVIATION AND THE ENVIRONMENT, 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://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0818en01.pdf. 

150 Resolution on the 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, EUR. PARL. DOC. (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. 

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stringent airworthiness standards as provided under Article 33 of the convention.151 Finally, 

EPA must recognize that its primary 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 endanger 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, necessary 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 emissions from aircraft engines may 

reasonably be anticipated to endanger public health and welfare pursuant to 

Section 231(a)(2)(A) of the Clean Air Act, 42 U.S.C. § 7571(a)(2)(A); 

(2) Issue proposed standards for greenhouse 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 Section 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 competency 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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