In the U.S. District Court for the District of Columbia, the Center for Biological Diversity and Friends of the Earth filed a civil lawsuit in mid-April 2016 against the U.S. Environmental Protection Agency ("EPA" or "Agency") alleging "unreasonable delay" in "issuing an endangerment finding" regarding aircraft emissions and promulgating regulations to curb aircraft emissions. The plaintiffs seek a declaration that the delay is unreasonable, an injunction to require EPA to issue an endangerment finding and propose regulations within 30 days of the court's judgment, and litigation costs.
In June 2015, EPA proposed an endangerment finding that greenhouse gas ("GHG") emissions
from certain classes of aircraft engines contribute to climate change and endanger public health and
welfare. EPA's proposed endangerment finding, which the Agency
anticipates finalizing in 2016, did not recommend a U.S.-specific
regulatory regime but instead indicated that EPA would later seek
to implement the international carbon standards then expected to be
issued by the International Civil Aviation Organization
("ICAO") in February 2016.
ICAO is a 72-year-old international body that issues consensus
international standards and recommended practices and policies to
its 191 member states regarding safety, accident investigation,
environmental impacts, and other aviation-specific concerns. At the
February 2016 ICAO meeting, the Committee on Aviation Environmental
Protection proposed an emission standard to apply to (i)
new aircraft type designs as of 2020 and (ii) new deliveries of
current in-production aircraft models from 2023. The proposed
standard included a cutoff date of 2028 for production of aircraft
that do not comply with the standard. ICAO also anticipates
developing a market mechanism to curb emissions, which in
conjunction with the proposed standard, will likely be approved at
the ICAO General Assembly meeting in October 2016.
The current lawsuit arises from a previous decision of the District
of Columbia District Court in 2011 requiring EPA to issue an
endangerment finding determining whether emissions of GHGs
contribute to air pollution or may reasonably be anticipated to
endanger public health or welfare. The plaintiffs allege that
EPA's proposed timing of finalizing the endangerment finding
sometime in 2016, publishing proposed regulations in 2017, and
promulgating final regulations in 2018 is unreasonable. The
plaintiffs point out that EPA's proposed timeline would result
in adopting a final rule seven years after the district court's
holding and 11 years after the plaintiffs submitted a 2007 petition
to EPA for issuing an endangerment finding and promulgating
aircraft emission standards.
The plaintiffs' current complaint does not acknowledge that
EPA's timing for finalizing the endangerment finding and
promulgating the regulations is partially tied to ICAO's
timeline for finalizing its proposed carbon standard. The complaint
also does not mention ICAO, ICAO's current process for adopting
international standards, or the six-month delay in the
yet-to-be-detailed market mechanism that is to complement the
carbon standards recommend in February 2016. Rather, the complaint
focuses on EPA's repeated delay in responding to the
plaintiffs' petition and in proposing the endangerment finding.
The plaintiffs contend that EPA's lack of action constitutes
unreasonable delay under the Clean Air Act's citizen suit
provision. To demonstrate legal standing, the plaintiffs allege
that their members have suffered and continue to suffer the
following harms: (i) injury related to "professional,
scientific, educational, spiritual, aesthetic and other interests
in a stable climate"; (ii) harms from secondary effects of
global warming like intensified air pollution; and (iii) procedural
and informational injuries arising from EPA's delay in
initiating a rulemaking procedure to regulate emissions from
aircraft.
Judge Saundra Brown Armstrong has set a Case Management Conference
in the case for July 6, 2016. Since the suit was filed on April 12,
2016, the Climate Change Law Foundation, the Association of
Irritated Residents, and Sierra Club have filed a Certificate of
Interested Entities with the court.
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