The Environmental Protection Agency’s recent proposed rule imposing, for the first time, a standard for limiting emissions from nearly all commercial aircraft will have limited practical impact, but its text makes clear that economic considerations are the primary motivation for the standard.
If enacted, the rule would apply to civil subsonic jet airplanes with a maximum takeoff mass greater than 5,700 kilograms and to larger civil subsonic propeller-driven airplanes with turboprop engines having a maximum takeoff mass greater than 8,618 kilograms. Military aircraft are excluded from the rule, although prior to the Covid-related groundings military aircraft in the U.S. outnumbered commercial aircraft by almost two to one.
Closely Follows International Standard
The EPA’s proposed standard closely follows the standard adopted by the International Civil Aviation Organization (ICAO) in 2017, which was the world’s first global design certification standard governing CO2 emissions for any industry sector. Both the 2005 Kyoto Protocol and the 2016 Paris Climate Accord ceded authority for negotiations over civil aviation’s role in greenhouse gas (GHG) mitigation to the ICAO.
Similar to the ICAO standard, the EPA standard would apply to all covered aircraft for which a new design type certificate is requested on or after Jan. 1, 2020, and would apply to in-production aircraft beginning Jan. 1, 2028.
Modifications to in-production aircraft that would result in an increase in GHG emissions would advance applicability of the rule to Jan. 1, 2023, for those aircraft. The standard would regulate the two greenhouse gases that are emitted by aircraft—carbon dioxide and nitrous oxide—and impose fuel efficiency requirements that would be calculated as a function of both cruise performance and fuselage size.
A review of the proposed rule confirms that the impact of imposing the new standard would be negligible, and that the standard is being proposed “in order to ensure global acceptance of FAA airworthiness certification” since “U.S. manufacturers would be at a competitive disadvantage compared with their international competitors without this domestic action.”
Indeed, “the proposed GHG standards are not expected to result in reductions in fuel burn and GHG emissions beyond the baseline. This result makes sense because all of the airplanes in the [growth and replacement] fleet either will meet the standard level associated with the proposed GHG standards or are expected to be out of production by the time the standards take effect.” Only the freighter versions of the 767 and the A380 are projected to be non-compliant by the deadline.
In addition to ensuring that FAA-certificated aircraft can be sold and operated in the global market, the EPA is proposing the standard to meet its obligation under the U.S. Clean Air Act “to propose and issue emission standards applicable to GHG emissions” after the agency found in 2016 that GHG from aircraft endangered public health and welfare.
Manufacturers Already Mainly Compliant
Because the ICAO’s standard was based on technological feasibility, it is technology-following instead of technology-forcing, so, according to the EPA, “manufacturers have already developed or are developing improved technology that meets the 2017 ICAO CO2 standards.”
As a result, the EPA “does not project that the proposed GHG rule would cause manufacturers to make technical improvements to their airplanes that would not have occurred in the absence of the rule” and has “estimated the annual burden and cost would be about 6 hours and $543 per manufacturer” due to additional reporting requirements.
Clearly, the EPA’s proposed standard is designed to support the U.S. commercial aviation manufacturers by adopting a standard that is expected to become a global requirement but with which they are already largely compliant.
Just as clearly, the nations that negotiated the ICAO’s standard do not intend to force the aviation industry to undertake modifications that may reduce GHG but that would impose a significant financial burden.
As shown by the wide acceptance of the Paris Accord, these same nations are well aware of their responsibility to reduce GHG in order to avoid the most serious impacts of climate change.
Estimates of commercial aviation’s annual contribution to global CO2 emissions range between 2% and 3%, with the U.S. reportedly responsible for nearly one-quarter of the total. If aviation is to be permitted to maintain its current technology in spite of the global growth in the sector that was envisioned when the standard was adopted in 2017, then logically other industrial sectors must be forced to reduce their GHG to offset the emissions from aviation. How that balance will be struck will be an interesting exercise in setting economic priorities.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Renée Martin-Nagle is special counsel with Eckert Seamans Cherin & Mellott LLC in Pittsburgh. She divides her energies between the firm’s nationally-recognized aviation practice and the environmental law practice.