United States: Environmental Groups Challenge EPA's Timing On Regulation Of Emissions From Aircraft

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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Authors
Jane Borthwick Story
Jennifer M. Hayes
Rebecca MacPherson
 
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