International Civil Aviation Organization (ICAO) The International Civil Aviation Organization (ICAO) was established in 1944 by the Convention on International Civil Aviation - known as "the Chicago Convention" - which was ratified in 1947, making ICAO a specialized agency of the United Nations. As stated in the Chicago Convention, the purpose of ICAO is to promote co-operation between nations "in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically." Established by fifty-two nations, ICAO now has 190 contracting states which comprise ICAO's Assembly. The Assembly meets every three years and elects the organization's governing body, the Council. The Council is composed of thirty-six nations which are selected to represent the states most important to air transport and those which largely provide the facilities for air navigation. The Council also includes states which guarantee representation for the major areas of the world. The Council also includes the Secretariat, headed by a Secretary General. The Secretariat contains five divisions: the Air Navigation Bureau, the Air Transport Bureau, the Technical Co-operation Bureau, the Legal Bureau, and the Bureau of Administration and Services. Recent Developments: ICAO Split Over Mandatory Curbs on Aviation Emissions In September 2007, the 36th Assembly of the International Civil Aviation Organization met in Montreal. The most contentious matter on the Assembly's agenda involved the environmental impact of international aviation. Though ICAO, a specialized agency of the United Nations, recommended actions to be taken by countries interested in reducing emissions from aviation, these recommendations were not far-reaching enough to satisfy some delegates. The ICAO Assembly meeting may have set the stage for a legal dispute between ICAO's European member countries and foreign airlines who do not comply with those countries' environmental standards. Aircraft emissions may contribute to global atmospheric problems more than the burning of fossil fuels by other forms of transportation, due to the altitude at which aircrafts function. Stratospheric ozone depletion and poor air quality at ground level are effects of aircraft emissions.[1] The Kyoto Protocol of 1997 assigned ICAO the task of reducing the impact of aircraft engine emissions, but so far the organization has resisted measures that would impose mandatory fuel taxes or emissions standards. In 2001, the 35th ICAO Assembly urged its member states to develop the means to limit the environmental impact of aircraft emissions, and requested that ICAO's governing body work with the United Nations Framework Convention on Climate Change to develop policy options for reducing aircraft emissions.[2] ICAO's Committee on Aviation Environmental Protection has since formulated a strategy for minimizing the effects of global civil aviation on the environment, including the development of emissions standards for international civil aviation.[3] The Secretary General has also expressed the hope that ICAO may soon be able to regulate aircraft engines that use alternative fuel sources.[4] The Kyoto Protocol encourages the implementation of "clean development mechanisms" - activities that reduce emissions in developing nations, such as reforestation or transfers of environmentally-friendly technologies - and the ICAO is exploring what aviation-related projects may be proposed for this purpose. ICAO's administration also developed a template for countries considering the adoption of aviation policies with voluntary emissions trading. Emissions' trading is a market-based policy which proposes economic incentives for companies to comply with environmental goals, rather than seeking their compliance through command regulations. Under such a policy, a government allows a set amount of environmental emissions by businesses. Businesses emitting less than their allowed amount are able to sell the excess allowance to other businesses in need of more than their allotted share. An emission trading policy seeks to establish a market for cost-effective emissions-controls and at the same time encourage a business model based on over-compliance with environmental targets. A Report on Voluntary Emissions Trading for Aviation of ICAO's Committee on Aviation Environmental Protection was presented to the 36th session of the ICAO Assembly in September 2007 and was adopted as recommended guidelines.[5] These ICAO guidelines urge the adoption of voluntary emissions trading schemes that take the form of a Memorandum of Understanding entered into by government and industry.[6] With the goal of reducing carbon dioxide emissions from aviation, such a program would be based on emissions from a particular base year, or period, and a determination of a realistic reduction of that amount, to be expressed as a percentage decrease of the base year emissions. The ICAO guidelines enumerate operational and technological steps that can be taken by an airline under this Memorandum of Understanding to improve their fuel-efficiency. This list includes: choosing to fly or taxi more fuel-efficient routes, flying at the most fuel efficient speed or most fuel efficient altitude, minimizing non-revenue flights, and distributing the load on planes so as to reduce aerodynamic drag.[7] The government's responsibilities under the Memorandum of Understanding are to support information sharing, record and verify emissions data, and to allocate credits of the airlines' efforts. Since ratification of the Kyoto Protocol, the European Union ("EU") has begun to mandate environmental protections, including its own Emissions Trading Scheme. EU representatives attended the ICAO meeting with hopes of imposing these mandatory emissions measures on international aviation. The emissions-trading proposal before the Assembly had included language to the effect that emissions trading schemes already in place for domestic aviation could include international aviation in the domestic trading schemes. However, in adopting its framework on emissions trading for aviation, the ICAO Assembly recommended nothing more than voluntary measures countries could implement if so desired. Further, the ICAO Assembly voted to have EU standards apply to foreign airlines only if those airlines' own countries consent to participation in the EU's Emissions Trading Scheme. As a result of these recommendations, EU countries may seek a legal challenge, on the grounds that the ICAO guidelines undermine the EU's Emissions Trading Scheme.[8] Prior to the ICAO Assembly meeting, the EU had plans to impose its Emissions Trading Scheme on all aircraft using EU airspace, beginning in 2012.[9] The United States' delegation to ICAO's 36th Assembly reportedly led the effort to defeat the EU's proposal to integrate international aviation into the EU Emissions Trading Scheme. **** The disagreement over integrating international aviation into the EU Emissions Trading Scheme highlights the gap between European and American environmental policies. The inability of EU delegates to pass their proposal at the ICAO Assembly may lead to increased lobbying for emissions trading within the United States.[10] Some international financial institutions have an interest in seeing American companies - including American airliners - capitalize on the economic incentives presented by the EU Emissions Trading Scheme.[11] The most effective way to satisfy those interests would be to involve American companies in the EU Emissions Trading Scheme would be through the establishment of an American emissions trading scheme. Two separate legislative proposals proposing the establishment of emissions-trading regulatory schemes to help curb American greenhouse gas emissions will be before the United States Senate this term. The "Low Carbon Economy Act" is co-sponsored by Senators Jeff Bingaman, Arlen Specter, Tom Harkin, Ted Stevens, Daniel Akaka and Lisa Murkowski.[12] "America's Climate Security Act" will be introduced this fall by Senators Joseph Lieberman and John Warner, with the support of Barbara Boxer.[13] Both proposals would regulate aircraft emissions in the context of trading systems for all industries that use carbon fuels. The two Senate bills are similar to the EU's Kyoto-inspired Emissions Trading Scheme rather than the scheme envisioned by the newly adopted ICAO guidelines, because both would mandate participation in this regulatory approach. Each Senate proposal creates an emissions trading program that allows companies to buy, sell and trade emissions allowances. Under both bills, regulation of the transportation sector would be affected due to limitations placed on carbon dioxide emissions of the refineries providing fuels to transportation companies, rather than by measuring emissions of the aircrafts themselves. Regulation of air craft emissions would occur under either bill by requiring the airlines to submit emissions allowances equal to the carbon content of fuels produced by the refineries that provide fuels to airline companies or other aircraft owners. As recommended by ICAO, the Bingaman-Specter "Low Carbon Economy Act" is based on the emissions from a particular base year, 2006, and targets reduction of emissions to that base amount by 2020, then to 1990 levels by 2030. The Lieberman-Warner bill calls for a more gradual reduction of emissions between the years 2012 and 2050. Though the Bingaman-Specter bill would initially distribute emissions-allowances to the private sector for free, allowances would soon be available only through government auctioning or by trading amongst companies. The Lieberman-Warner bill would auction allowances from the inception of the emissions-trading scheme. Proceeds from auctions under either proposal would be dedicated to the development or adaptation of technologies to reduce greenhouse gas emissions. However the funding generated by both bills is clearly intended for automobile manufacturers rather than aircraft manufacturers. The Lieberman-Warner proposal does envision airlines using some credits earned in the EU Emissions Trading Scheme towards meeting American regulations. However, neither Senate proposal would resolve the dispute that occurred at ICAO's recent Assembly. EU countries are committed by the Kyoto Protocol to reducing their greenhouse gas emissions by a collective average of 5% below their 1990 levels by 2012. Even under the more ambitious targets of the "Low Carbon Economy Act", American greenhouse gas emissions would only be reduced to the U.S.'s 1990 levels by 2030. There are some signs that if the United States adopts an emission trading scheme or more stringent measures such as a fuel tax or minimum emissions standard, by the time the ICAO Assembly next meets in 2010, the prospects of American airlines being ready for regulation under the EU Emissions Trading Scheme will have likely changed. If it does not change by 2012, and if the EU proceeds with its plan to impose its Emissions Trading Scheme on all aircraft - foreign or domestic - an international legal dispute will take place. Hon. Louisa S Porter, Magistrate Judge, Southern District California. David K Ries, Esq. Footnotes: 1 See Aviation and the Global Atmosphere, SPECIAL REPORT OF INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, 2.4, (J.E.Penner, D.H.Lister, D.J.Griggs, D.J.Dokken, M.McFarland eds., Cambridge University Press, 1999). This report was the result of an ICAO request to the Intergovernmental Panel on Climate Change, following ICAO's participation in the Montreal Protocol on Substances that Deplete the Ozone Layer. 2 Int'l Civil Aviation Org. [ICAO], Assemb. Res. A35-5 at Appendix H, available at: http://www.icao.int/icao/en/env/A35-5.pdf (last visited on September 13, 2007). 3 Presentation by the Secretary General of the International Civil Aviation Organization to the Colloquium on Aviation Emissions at 2, May 16, 2007, available at: http://www.icao.int/icao/en/osg/osg_2007_ENV_CLQ07_en.pdf (Last visited on September 13, 2007) 4 Id. 5 Report on Voluntary Emissions Trading for Aviation (ICAO, 2007), available at http://www.icao.int/icao/en/env/measures.htm (Last visited on October 1, 2007). 6 Template and Guidance on Voluntary Measures, available at http://www.icao.int/icao/en/env/Caep_Template.pdf (Last visited on October 1, 2007) 7 Id. at 5. 8 International aviation body fails to act on climate plans, ATLANTIC FREE PRESS, (September 28, 2007) 9 Jacques Lemieux, Civil aviation conference rejects EU push for emission cuts, AGENCE FRENCH PRESSE, September 28, 2007. 10 James Kanter, Bankers to lobby developed countries on carbon-trading system, INTERNATIONAL HERALD TRIBUNE, Sept 26, 2007. 11 Id. (listing Citigroup, Lehman Brothers, Morgan Stanley, Deutsche Bank, and Barclays Capital as institutions with interests in an American carbon-trading regulatory scheme). 12 http://energy.senate.gov/public (The full text, as well as two-page summary, of the Bingaman-Specter bill can be found by following this link from the webpage of the U.S. Senate Energy and Natural Resources Committee.) (last visited on October 1, 2007) 13 http://lieberman.senate.gov/documents/acsa.pdf (The framework of the Lieberman-Warner bill is available as a pdf from the website for Senator Joseph Lieberman,) (last visited on October 1, 2007). |
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