Senate sends a signal that US & other countries need to get a global solution to aviation's global warming pollution

Early Saturday morning, the U.S. Senate passed a bill that would send a signal that it is way past time for aviation to reduce its global warming pollution.  The bill – sponsored by Sen. Thune (R-SD) and Sen. McCaskill (D-MO) – has been significantly changed since it passed the U.S. House of Representatives and since it was first introduced in the Senate.  So while the bill has some saber rattling regarding the need for U.S.-based airlines to comply with the E.U. law, it doesn’t really change anything on the ground.  U.S. airlines that choose to land in Europe will have to reduce their carbon pollution that is causing global warming.  The U.S.-based airlines can choose to ignore the E.U. law, but they would suffer huge penalties. No act of Congress can change that dynamic, unless the U.S. Administration decides to shoot American citizens in the foot. And the Administration has plenty of reasons not to take such a step and plenty of flexibility in the bill that finally passed.

Here is how. 

If the Administration chooses not to act then nothing happens.  The bill has a lot of tough sounding words like “prohibit” and “hold harmless”, but it puts the onus on the U.S. Administration to act and provides plenty of legal ways that they can sit on their hands. 

There are a lot of “ifs”, “could”, etc.  For example, the Administration can only “prohibit” U.S.-based carriers from complying with the E.U. law if they determine that such action would be in the “public interest”. In making that determination they would have to take into account such factors as impacts on U.S. consumers, environmental security of the U.S., and foreign relations. Of course, an Administration could theoretically make such a determination but how could any Administration decide that reducing global warming isn’t a core part of our environmental security? Or how could they say that starting a trade war won’t have impacts on U.S. consumers or foreign relations?

Only after a public hearing could the Administration take any actions to “prohibit” U.S.-based airlines from complying. So even if a U.S. Administration made such a determination they would have to go before the public and defend why they are protecting U.S. airlines at the expense of the public. Have fun at that public hearing as the U.S. Administration defends the airlines that seem to nickel-and-dime their customers for every checked bag, preferred seat, child that gets to sit next to his parents, and so on.  

The bill gives the US Administration no new legal powers.  There is nothing in this bill that provides any new legal tools for the Administration to “prohibit” or “hold harmless”.  The Administration already has some tools, but those tools were available prior to adoption of this bill or have been weakened with provisions in this bill.  For example, the Administration could bring a formal challenge within the U.N. body that guides international aviation issues (a so-called “Article 84 challenge”)—something that the airlines really want. But that process would only undercut efforts to get a global solution as countries would focus all their attention on the challenge and have little attention left for designing a global solution. 

If the Administration tried to “hold airlines harmless” for the penalties they will suffer if the U.S. airlines ignore the E.U. law, then they have only two choices that range from being financially stupid and/or reckless (begging Congress to provide money to bailout the airlines) to tools that quickly trigger a trade war (by slapping fees on the flights operated by EU airlines).

So while this bill potentially allows the Administration to take action against the EU, the tools are weak and leave plenty of flexibility for the Administration to sit on their hands. Good luck determining that an airline bailout or a trade war is in the “public interest”.

It sends a signal that it is time for ICAO and the US to act.  The bill mandates that the U.S. government conduct international negotiations “to pursue a worldwide approach to address aircraft emissions”. This requirement sends a clear signal that it is time for the world to secure a strong agreement to reduce aviation’s global warming pollution. Unlike the other provisions in the bill, the Administration doesn’t have to make any determinations before it secures such an international agreement. And any “prohibition” would be subject to a reevaluation if: (1) the U.S. passed a law or adopted a regulation to reduce aviation’s pollution, or (2) an international agreement to reduce aviation’s emissions was adopted.

These signals aren’t as strong we would have liked, but they are real and they are clearly in the minds of many Members of Congress.  After all, many of the changes necessary to secure passage attempted to strengthen the signal for action by the U.S. and the U.N.-body.  The U.S. and other countries have a chance to act on this signal this October and they’ll have a chance to finalize any agreement in September 2013 when the full U.N.-body meets.