USEPA Reaches Milestone for Aircraft GHG Regulation with Issuance of Proposed Rule

Aviation Alert (July 27, 2020)

On July 22, 2020, the U.S. Environmental Protection Agency (USEPA) announced the long-awaited release of its proposed greenhouse gas (GHG) emissions standards applicable to the manufacturers of airplanes used in commercial aviation and large business jets. Replicating the standards set by the International Civil Aviation Organization (ICAO) in 2017, the USEPA described its proposal as “making domestically manufactured aircraft competitive in the global marketplace” and underscored the benefits of “harmoniz[ing] with the international standards and provid[ing] global consistency.” 

The proposed standards follow the USEPA’s related 2016 findings under the Clean Air Act, in which the agency determined that GHG emissions from certain classes of aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. In announcing the release of its proposed standards, the USEPA observed that aircraft “remain the single largest GHG-emitting transportation source not yet subject to GHG standards in the U.S.” The aircraft covered by the proposed standards are responsible for approximately three percent of total U.S. GHG emissions and 10 percent of GHG emissions from the transportation sector in the U.S., when accounting for all domestic flights and international flights originating in the U.S.  

As noted above, the USEPA’s proposed standards are equivalent in scope, stringency and timing as to the ICAO’s 2017 standards. (The ICAO was established in 1947 and is a specialized agency of the United Nations.) As such, the USEPA is proposing to adopt a carbon dioxide metric that determines regulatory compliance by measuring fuel efficiency. The proposed standards would apply to new type design airplanes on or after January 1, 2020, and to in-production airplanes on or after January 1, 2028. If adopted, the proposed standards would be located in Part 130 of Title 40 of the Code of Federal Regulations.  

There is likely to be vigorous debate regarding the sufficiency of the proposed standards (and litigation if the standards are adopted as proposed), as environmental organizations already have been clear that they do not believe the ICAO’s 2017 standards provide an adequately rigorous basis for the reduction of GHG emissions from aircraft. The ICAO standards were developed with input from the USEPA, Federal Aviation Administration and other representatives of the aviation industries. Rather than falling in line with the ICAO, environmental organizations would like the U.S. to be a global leader on aviation emissions and establish new performance benchmarks.    

For additional information, please visit the USEPA’s “Notice of Proposed Rulemaking: Control of Air Pollution from Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures” webpage at https://www.epa.gov/regulations-emissions-vehicles-and-engines/notice-proposed-rulemaking-control-air-pollution.

[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.]