EU ETS and AVIATION
Fasten your seatbelt,
turbulent times ahead
Suzy Huber
CLEER Workshop: EU
Environmental Norms and
Third Countries: The EU as
Global Role Model?
TMC Asser Institute, The
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Hague
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Content
1. Why and how did the EU include aviation
in ETS?
2. A Stormy Reception: the International
Response
3. The EU Under Pressure: Stop the Clock!
4. EU as global role model?
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Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
1. The path to include
aviation in EU ETS
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Steps to Aviation ETS
ICAO Assembly:
ICAO Assembly
no new legal instrument
ICAO Assembly
ICAO Assembly: opposition
to ETS without “mutual
ICAO Assembly agreement” (Reservation
made by EU)
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8
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4
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0
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Commission
proposal 8
Kyoto Protocol
EU Directive agreed upon
Implementation
Start of first trading year
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EU ETS and Aviation, Suzy Huber
Reasons why the EU included aviation in
ETS
Lack of action in ICAO
EU emissions from international flights are
increasing fast - have doubled since 1990
No quick and easy technical solution
(efficient aircrafts, improving air traffic
management, fuel taxation)
ETS = cost effective
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EU ETS and Aviation, Suzy Huber
Emissions Trading Scheme (Cap and Trade)
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Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
How is aviation included in EU ETS?
- Aviation cap has potential reduction of 29-46%
below BAU by 2020
Big environmental impact!
- 82% of the cap is distributed as free allowances
Modest impact on ticket price!
- All aircraft operators that fly to and from EU
territory must monitor and report their
emissions over the whole trajectory of the flight
and surrender allowances every year to cover
these emissions
 Non-discriminatory!
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Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
How is aviation included cont’d
- Auction revenues for climate change action
in developing countries
Common But Differentiated Responsibilities!
- Exemption if third country takes equivalent
measures
 There is a way out!
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EU ETS and Aviation, Suzy Huber
Significance of the inclusion of aviation in EU
ETS
Source: openflights.org
- Aviation ETS covers almost 60 per cent of international
aviation emissions.
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EU ETS and Aviation, Suzy Huber
2. A Stormy
Reception: the
International
Response
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ATAA legal challenge
2010: Air Transport Association of America and
others challenged the validity of the Directive
- 3 main arguments were put forward:
1. the EU went beyond its jurisdiction by
taking into account the part of the flights
outside EU airspace
2. the EU does not have the mandate, should
be based on mutual agreement through ICAO
3. EU ETS amounts to a tax or charge on fuel,
which is prohibited by aviation treaties
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Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
European Court Ruling
The Court rejected all 3 arguments.
- States may choose to apply standards to
activities that take place on their territory
- Environmental protection calls for
measures that take extraterritorial events
into account
- ICAO does not have exclusive mandate
- ETS is not a tax
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EU ETS and Aviation, Suzy Huber
Increasing Political and Economic Pressure
- China ‘blocks’ Hong Kong Airlines’ order of ten
A380s from Airbus,
- Chinese aircraft carriers are forbidden from
complying with EU ETS
- Russian Federation threatens to deny EU transSiberia route, actually denies Finnair new landing
rights
- A bill is introduced in US Congress, that prohibits
American airlines from complying with EU ETS
- Dec 2011: Strongly worded letter from US
Secretary of State Clinton and Transportation
Secretary LaHood to EU Member States. “The EU
is increasingly isolated on this issue”. Threaten to
“respond appropriately”
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EU ETS and Aviation, Suzy Huber
Coalition of the Unwilling: strange bedfellows
- “Coalition of the Unwilling”: United States,
China, Russian Federation, Brazil, India,
Japan, South Korea, Saudi Arabia,
Singapore, and others
- Meetings in Sept 2011, February and July
2012
- Declaration of Sept 2011 which condemned
the EU aviation ETS as illegal under int law,
was later adopted by the ICAO Council.
- February 2011: drafted a suite of
countermeasures, but no coordinated
Climate Focus, 19 April 2013
EU ETS and Aviation,
Suzy Huber
14 countermeasure
could be agreed
upon.
3. The EU Under
Pressure
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STOP THE CLOCK PROPOSAL
November 2012
Due to “encouraging results” achieved by the
ICAO Council:
• European Commission proposed to ‘suspend’
aviation ETS on all international flights for
one year
• Allow for a global solution to be taken by
ICAO Assembly in September 2013 (triennial
meeting).
• Note: the scheme still applies to INTRAEU ETS and Aviation, Suzy Huber
16 Climate Focus, 19 April 2013
European flights to all aircraft operators
International reaction to ‘stop the clock’
- “China welcomes the EU’s decision … but
does not accept the practice of applying the
system to foreign flights within Europe. China
expects the EU to take a constructive attitude
and work with other parties to settle
differences properly.” (Chinese Foreign
Ministry spokesperson)
- 2 weeks AFTER ‘stop the clock’
announcement,
Obama signs the European Union
Emissions Trading Scheme
Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
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Prohibition Act
What will ‘stop the clock’ achieve?
- Has ‘stop the clock’ had the
desired/intended effect?
- Pressure on the ICAO process:
temporarily lifted? Or increased?
- What can we expect from ICAO Assembly
in September? A global scheme certainly
won’t go into effect by 2014.
- Even if agreement is reached within ICAO,
how will the EU bridge the gap?
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EU ETS and Aviation, Suzy Huber
4. EU as global role
model?
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Tension in international norms
Aviation ETS exposes the tension in
international norms:
- Environmental efficiency versus
sovereignty (fear of unilateralism)
- Non-discrimination in civil aviation
versus Common but Differentiated
Responsibilities and Respective
Capabilities
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Climate Focus, 19 April 2013
EU ETS and Aviation, Suzy Huber
EU’s high stakes experiment
Is unilateralism justified when
multilateralism fails?
Urgency
But, danger of fragmentation
Has the EU’s approach been effective?
 Progress in ICAO(?)
 Time is running out! Look out for ICAO
Assembly September 2013
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Thank you
Suzy Huber – Legal
Counsel
Climate Focus
www.climatefocus.com
s.huber@climatefocus.c
om
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