Comity of nations? US ban on US airlines complying with EU emissions law
10 January 2013
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
The US Act runs to a page and half. The ban applies where the Secretary of Transportation determines that it is in the public interest to apply
taking into account
(1) the impacts on US consumers, US carriers and US operators
(2) the impact on the economic, energy, and environmental security of the United States and
(3) the impacts on US foreign relations including existing international commitments.
Note that there is no reference to taking account of interests other than US interests, nor indeed to environmental benefits of the scheme.
The clash between the EU rules and this ban is postponed for the moment, because the EU Commission wishes to exempt international flights from the trading scheme for 12 months, in an attempt to see whether a deal can be brokered at a meeting of the International Civil Aviation Organisation (ICAO) in autumn 2013. So the prospect of US airliners being impounded when they land here, and the EU enforceability of this Act being tested at the sharp end, is not an imminent one.
The White House’s justification for this pre-emptive strike is that emissions should be regulated through ICAO processes – an understandable political aspiration, and one which is recorded in the Act. But it is very unattractive for one nation to ban its nationals from obeying the laws of another country applicable in that other country – and to ignore the ruling of a court that the latter was validly made law. Heaven forfend if any other nation sought to prohibit its nationals from complying with US law in the US.
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Much as I sympathise with this call for comity, I do wonder what else the Americans are supposed to do. I happen to think they are probably right; EU law should not tax emissions that occur when an airplane is still taxiing on the ground in the US. (The meter starts running as soon as the airplane leaves the terminal.) So what is the remedy? An ICJ suit? A WTO Dispute Settlement?
“…..it is very unattractive for one nation to ban its nationals from obeying the laws of another country applicable in that other country – and to ignore the ruling of a court that the latter was validly made law. Heaven forfend if any other nation sought to prohibit its nationals from complying with US law in the US…” Well put, Mr Hart.
The Land of the Free should respect this EU law that is designed to reduce carbon emission. As the EU Court (CJEU) noted in its judgment, the European Union itself is not a party to the 1944 Chicago Convention yet its member states have ratified it. There is also the matter of the Kyoto Protocol as linked to the United Nations Framework Convention on Climate Change.
Hopefully, good sense will prevail at the ICAO meeting due to be held later this year, and a way would be found to avoid a clash of laws and the consequent ill wind that will blow nobody any good.