Ready for Takeoff: Embarking on a Journey to Regulate Aircraft Greenhouse Gas Emissions at Home and Abroad

Air travel is among the fastest growing modes of transportation in the world. It is not only quick, but also increasingly affordable. Businesspeople, students, and tourists alike can travel by plane across the United States or across the world in a matter of hours. However, this growing popularity in air transportation is also increasing global greenhouse gas (GHG) emissions. To put the level of GHG emissions from aviation into perspective, “[s]omeone flying from London to New York and back generates roughly the same level of emissions as the average person in the EU does by heating their home for a whole year.” Not surprisingly, aircraft emissions are among the fastest growing type of GHG emissions worldwide. Some predict that international aviation GHG emissions will increase by approximately 70% between 2005 and 2020. Indeed, for many people, air transportation is one of the largest portions of their carbon footprints. Historically, these emissions have been left to the industry and individual countries to regulate. However, this autonomy is fading. Two major, recent events indicate that regulating aircraft GHG emissions is on the horizon. First, the U.S. Environmental Protection Agency (EPA) issued an endangerment finding under § 231(a)(2)(A) of the Clean Air Act (CAA) for the combination of six GHG emissions from certain aircraft. Second, the International Civil Aviation Organization (ICAO), the United Nations specialized body on international aircraft regulation, issued two important measures as part of its goal to obtain carbon neutral growth in aircraft GHG emissions from 2020. One of these measures includes the first-ever global standards for aircraft carbon dioxide emissions. With the endangerment finding, the EPA is now positioned to regulate aircraft emissions in the United States, implementing ICAO’s new standards for international aviation, and either using those same standards or creating its own for domestic aviation. These developments are essential to mitigating climate change and attaining the global goal of keeping temperature rise below 1.5˚C or 2˚C. This Note will provide background information on GHG emissions regulation in the aviation sector. It will also lay out some of the essential elements of a future rule that the United States should incorporate when adopting these regulations domestically. Part I will offer an overview of some of the problems associated with global warming and the need to reduce GHGs. This Part will also briefly discuss international climate change treaties, including the goals of the Paris Agreement and the United States’ nationally determined contribution. Part II will soar through the history of aircraft emissions regulations—both in the United States and in the European Union. It will also include a discussion of the ways the aviation sector has voluntarily worked to reduce its carbon footprint and explore ICAO’s initiatives in greater detail. Part III will examine the framework for regulating GHGs from domestic aviation, including the recent EPA endangerment finding under § 231 of the CAA. Part IV will discuss the next steps for the United States in terms of adopting regulations for aircraft GHG emissions and effective implementation. This part of the Note will also detail the most important characteristics of an effective EPA rule regulating GHG emissions from domestic aircraft. Finally, this Note will conclude by summarizing the shortfalls of this regulatory scheme and offer recommendations for policymakers going forward.