On January 15, 2021, twelve states, led by the State of California, and the District of Columbia filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, challenging the U.S. Environmental Protection Agency’s (EPA) final greenhouse gas (GHG) emission standard for aircraft vessels and engines.[1] On the same day, environmental groups, Earthjustice, Center for Biological Diversity, Friends of the Earth, and Sierra Club, filed their own petition against the EPA.
The subject EPA rule, effective January 11, 2021, is the first of its kind – representing the nation’s first GHG emissions standard for the aviation industry. Despite sounding rather ground-breaking, the aforementioned legal challenges to the rule arise because of arguments that the rule does, well, nothing. Specifically, the rule adopts a “fuel-efficiency-based metric” that is based on and consistent with standards set by the International Civil Aviation Organization. The EPA does not expect this standard to cause any considerable reductions in GHG emissions because most airplanes in the United States already meet the standard. In other words, GHG emissions from the aviation industry will continue in a largely business-as-usual manner.
The lawsuits by the states and environmental groups are thus challenging what appears to be an ineffectual emissions standard that is inconsistent with the EPA’s recognition in 2016 that GHG emissions from aircraft endanger public health and welfare (see 81 Fed. Reg. 157, 54422). In fact, the states intend to argue that the EPA acted arbitrarily, capriciously, and unlawfully by adopting a rule that: (1) fails to reduce emissions; (2) lags behind existing technology by a decade; and (3) excludes more effective alternatives from consideration.[2] As explained by Earthjustice: “This standard fails to reduce emissions from aircraft and represents a missed opportunity to address climate change … Our petition asks the D.C. Circuit to hold [the] EPA to this obligation to work toward a future where our transportation systems no longer contribute to a warming world.”[3]
As we monitor the progress and outcome of these petitions in the D.C. Circuit, it will be interesting to see whether the aviation emissions standard is preemptively amended anyways under the new Biden administration. In fact, this seems likely given President Biden’s executive order directing the EPA to review the rule for consistency with Biden’s firm stance on achieving environmental justice, and to amend or rescind the rule if it is inconsistent with articulated environmental goals.[4]
[1] The final EPA rule is published at 86 Fed. Reg. 2136 (Jan. 11, 2021).
[2] See Connecticut Office of the Attorney General, Press Release, Attorney General Tong Joins Suit to Block Trump Administration Rule that Locks in Dangerous Levels of Airplane Greenhouse Gas Emissions, Jan. 15, 2021, https://portal.ct.gov/AG/Press-Releases/2021-Press-Releases/AG-Tong-Sues-to-Block-Rule-that-Locks-In-Dangerous-Levels-of-Airplane-Greenhouse-Gas-Emissions.
[3] See Earthjustice, Lawsuit Challenges Trump Administration’s Failure to Cut Airplane Climate Pollution, Jan. 15, 2021, https://earthjustice.org/news/press/2021/lawsuit-challenges-trump-administrations-failure-to-cut-airplane-climate-pollution.
[4] See Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, January 20, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/.
[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]