Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

On August 28, 2009 (74 FR 44676), EPA published a proposed rule entitled ‘‘Effluent Limitation Guidelines and New Source Performance Standards for the Airport Deicing Category; Proposed Rule.’’ Written comments on the proposed rulemaking were to be submitted to EPA on or before December 28, 2009 (a 120-day public comment period). Since publication, the Agency has received several requests for additional time to submit comments. EPA is extending the public comment period until February 26, 2010.

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I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

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EPA Administrator signed a Notice on August 17, 2009, proposing Airport Deicing Effluent Guidelines. In that Notice, EPA is proposing "technology-based effluent standards for discharges from airport deicing operations."  Effluent guidelines and new source performance standards are technology-based regulations that are developed by EPA for a category of dischargers. In this case, the deicing effluent guidelines are based on the performance of control and treatment technologies.

In general, the regulations would apply to "wastewater associated with the deicing of aircraft and airfield pavement at primary commercial airports."  (Although various industry groups have objected to using the term "wastewater" to describe the deicing effluent, since that is the term that the EPA uses in the proposed rule, that is the term used in this article).  The proposed regulations would affect airports that

1. conduct aircraft deicing operations,
2. have 1,000 or more annual jet departures, and
3. 10,000 or more total annual departures.

Such airports would be required to collect spent aircraft deicing fluid (ADF) and treat the wastewater. They may either treat the wastewater on-site or send it to an off-site treatment contractor or publicly owned treatment works. Some airports would be required to reduce the amount of ammonia discharged from urea-based airfield pavement deicers or use more environmentally friendly airfield deicers that do not contain urea.

Although EPA Administrator signed the notice on August 17, 2009, it has not yet been published in the Federal Register.  The public comment period on the regulations will run for 120 days after publication in the Federal Register.

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 The Waxman-Markey Bill (also known as the American Clean Energy and Security Act) hearings ended with a bang, featuring Former Vice President and Nobel Laureate Al Gore, former Senator John Warner and former Speaker of the House Newt Gingrich. The testimony they gave was no surprise, but it underlined the deep divisions that exist, at least at the political level, and the uphill battle that this Bill faces.

Gore's Testimony

Former Vice President Gore was first in the witness chair. He gave his standard (and very effective) stump speech about climate change: the country is at risk on three fronts: economy, national security and climate. He likened the Waxman-Markey bill to a civil rights bill: “the most important of our lives. It is a moral imperative.” He stated that it is an environmental Marshall Plan, which is what he called for (and outlined) in his book “Earth in the Balance.” Gore then started talking about “tipping points,” his belief that the levels of CO2 in the air and other factors that might tip the balance to a point that it is irreparable. He ended his statement with “the USA is the world’s leader. Once we find the courage to take on this issue the world will also act. We need to act.” 

The Climate Change skeptics on the Committee sought to discredit Gore, but were largely unsuccessful. First, Rep. Fred Upton (R.-Mich.) tried to paint Gore as being anti-nuclear. Gore responded that he is not anti-nuclear, it is just his belief that the problems associated with nuclear energy, i.e., waste, accidents, size, fuel sources, weapons issues, are not easily addressed. Rep. Steve Scalise (R.-La.) took a shot at Gore accusing him of conspiring with Ken Lay of Enron for setting up insider trading deals that are contained in the cap-and-trade portion of the Bill. Gore responded with the respect that such a comment deserves: “there are people that still think the moon landing was staged in a Hollywood studio.” Rep. Marsha Blackburn (R.-Tenn.) also attempted an ad hominem attack, asking whether Gore personally profited “from this push towards a cap-and-trade system?” She specifically referred to Gore’s presence on the Board of the firm Kliner Perkins. Gore responded incredulously “are you serious? Do you think I have devoted the past 30 years of my life to this cause just so I could benefit from a bill that is up for debate right now?” In all, the attacks on Gore did not move the skeptic’s agenda forward.

Warner's Testimony

Former Sen. Warner, a Republican from Virginia, who was the co-author of last year’s Warner-Lieberman Bill which covered much of the same ground as this bill, echoed Gore.  Warner stated that “energy independence, global climate change and national security are very interwoven.” Warner recognized that there will be costs to industry and to the people, but that “if we keep on with business as usual, we will reach a point where the worst effects are inevitable.”

Gingrich's Testimony

By contrast, former Speaker of House Newt Gingrich’s testimony focused on his proposal that instead of clean energy, the U.S. ought to expand off-shore drilling, oil shale, oil refineries, “green” coal, and nuclear energy to resolve its energy security issues. Gingrich heightened the rhetoric by calling the EPA economic analysis “intellectually dishonest” in not presenting both sides of the story. This tactic, reminiscent of the debate over evolution, seeks to paint one side as presenting something that is not certain and claiming that that side is not releasing all of the facts. 

The Democrats ripped into Gingrich. Chairman Henry Waxman (D.-Calif.) excoriated Gingrich for using scare tactics and talking in circles, ending by asking “if you are scared to work with us, what are doing here?” Likewise, Rep. Jay Inslee (D.-Wash.) asked Gingrich “you were asked in 2007 if you supported a cap on carbon. You responded ‘frankly, it is something I would strongly support.’ What happened?” Indeed, Gingrich appeared in ads for Gore’s “We” campaign promoting the reduction of greenhouse gas emissions. Gingrich did not have a reply.

Industry and Regulator Testimony

In the afternoon, various industry officials paraded before the Committee to ask for specific changes to the Bill that would benefit their industry and regulators stating that those changes should not be made. For example, Dr.  Dan Sperling from the University of California at Davis stated that the California Air Resources Board voted for a Low Carbon Fuel Standard, and the U.S. should follow California’s lead. On the other hand, Charles Drevna, President of the National Petrochemical and Refiners Association testified that Low Carbon Fuel Standard is redundant, costly and punitive. There were a few good points made, though. Ian Bowles, from the Massachusetts Office of Energy and Environmental Affairs, updated the Committee on Massachusetts’ experience with 100% auctions, concluding that auctions work and they work “brilliantly.”

Click on "Continue Reading" for a Witness List with links to their prepared testimony as well as links to video of the session.

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On Day Three of the Waxman-Markey Bill (also known as the American Clean Energy and Security Act) hearings, perhaps the best place to begin is with Rep. Edward Markey's (D-Mass) closing remarks, where he asked the panelists "do you think we can construct a cap-and-trade system?"  All of the panelists replied in the affirmative.  This session, without the Administration headliners of yesterday and the Pop culture icons that are scheduled for tomorrow (Al Gore and Newt Gingrich), was noticeably less on point and more meandering.  There were, however, several central themes:  cap-and-trade, Carbon Capture and Storage, and renewable energy.

Cap-and-trade

Although this topic was discussed extensively yesterday, the first panel consisted of representatives of various utility groups and consumer groups.  The electric utilities all seemed to want the same thing:  free allowances instead of having to pay for them at auctions.  They claim that this will allow the utilities to keep their prices down.  There is no surprise there.  The only interesting quote from a Congressman came, once from Rep. Joe Barton (R. Texas), who told the witnesses that "hybrid cars never pay off and American won't drive them unless forced by the government, backed by the Army."  How dead was it in the Committee room?  One report indicated that "the Chairman is reading a paper and only about 3 Reps are paying attention to these guys begging for handouts."

Carbon Capture and Storage/Clean Coal

During the hearings there has been talk about "Carbon Capture and Storage."  Carbon capture and storage (CCS) is an approach to mitigating the contribution of fossil fuel emissions to global warming, based on capturing carbon dioxide (CO2) from large point sources such as fossil fuel power plants and storing it away from the atmosphere.  The utilities and the coal industry believe that CCS is the way to go because it will allow them to go on using coal without producing CO2.  However, the technology is not there yet, and there is a fear that the development of CCS would draw needed dollars away from the development of other sources of energy.  Interestingly, David Hawkins of the Natural Resources Defense Council stated that CCS can happen if it has adequate policy support.

Renewable Energy

On the other hand you have the advocates for "renewable energy."  Although most people think of solar and wind power when they think of renewable energy, there are other sources.  Geothermal energy is one such source.  Dan Reicher of Google (yes, that Google) testified that "engineered geothermal energy potential in Texas could provide 100% of Texas' electricity needs."  Supporters of renewable energy also came from unlikely sources, Jim Robo, President and COO of Florida Power & Light told the Committee that "we've barely begun to tap renewable energy . . . Unchecked climate change will cost us tens of billions of dollars."  This thinking leads to the Waxman-Markey Bill's call for a goal to be set that a certain percentage of energy be from renewable sources.  This has also led to various Representatives to call for the definition of renewable energy to include nuclear energy, biomass, and "clean coal."

In the end, there was a chorus among the last panel, calling for a strong legislation to deal with climate change and energy.   One can hope that the last day of the hearings, with some heavy hitters taking the witness chair, the questioning will be a little more interesting.

Click on "continue reading" for a complete Witness List with links to the witnesses written testimony and links to the video of the Hearing.

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Over two years ago, on April 2, 2007, the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), directed the EPA Administrator to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.  Finally, after two years and much hand-wringing, EPA Administrator Lisa Jackson issued her proposed finding that carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride may endanger public health or welfare.

In actuality, the EPA proposed two findings:  (1) an endangerment finding, that the six GHG endanger public health and welfare; and (2) a “cause and contribute finding” that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence add to the threat of climate change.

EPA characterizes its proposed Endangerment Finding as follows:

This is not a close case in which the magnitude of the harm is small and the probability great, or the magnitude large and the probability small. In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

The EPA, however, was careful to walk a fine line between complying with the dictates of Massachusetts and actually regulating GHG.  While this proposed rule does not actually regulate GHG,  it does propose defining greenhouse gases as “air pollutants” under the Clean Air Act. EPA proposes defining the six GHG as a single pollutant, rather the defining them individually - similar to the approach the EPA took with ozone years ago. EPA explained its decision as follows:

It is the Administrator’s judgment that this collective approach for the contribution test is most consistent with the treatment of greenhouse gases by those studying climate change science and policy, where it has become common practice to evaluate greenhouse gases on a collective CO2-equivalent basis

Although the EPA usually issues emission control standards concurrently with an endangerment finding, in this case, the EPA indicated that the emission standards would be issued “several months from now.”   This bifurcation of the normal process has been taken by observers to mean that these rules are meant to goad the Congress into action, rather than a serious proposal that EPA regulate GHG.  Indeed, the EPA’s Press Release on the Endangerment finding specifically stated that “[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy.”

And Congressional leadership seems ready to oblige.  Rep. Edward Markey (D.Mass.), Chair of the Energy and Environment Subcommittee, had this to say about the EPA’s Endangerment Ruling:

This decision is a game-changer. It is now no longer a choice between doing a bill or doing nothing. It is now a choice between regulation and legislation. EPA will have to act if Congress does not act.

Markey and Rep. Henry Waxman (D-Calif.) have introduced the American Clean Energy and Security Act of 2009 (ACES) to set up a system for reducing emissions from all sources and creating a financial incentive for companies to stay within emission limits.   See, “U.S. House Energy and Commerce Committee Releases Draft Climate Change Act,” posted April 2, 2009.  Waxman wants to pass the bill from his Energy and Commerce Committee by the end of May, but its fate is uncertain in the Senate.

Aircraft and other aviation sources seem to have received a pass with respect to these regulations:

EPA has received a petition under the Act to consider the regulation of 64 aircraft emissions (water vapor and NOx) that lead to formation of contrails (in addition to aircraft greenhouse gas emissions), and EPA plans to evaluate this issue further. At this time, the Administrator is not proposing to include aircraft-related contrails or emissions that are not greenhouse gases within the definition of air pollution for purposes of section 202(a).

This does not mean, however, that once the emission control standards are promulgated (if they are promulgated), aviation sources will not also be regulated.  Likewise, the Waxman-Markey bill may affect aviation sources as well.

A 60-day comment period will follow publication of the proposed rule in Federal Register, which has not yet occurred.  There will be public hearings in Arlington, Virginia, and Seattle, Washington in May, 2009.   Click on Continue Reading at the bottom of this post for details about written comments and public hearings.

Previous posts on this subject:

• “U.S. House Energy and Commerce Committee Releases Draft Climate Change Act,” posted April 2, 2009.
• “EPA Proposes National Reporting Rules for Greenhouse Gases,”  posted March 10, 2009.
• “U.S. House Subcommittee Hears Testimony on  Problems of Carbon Offsets in Climate Change Legislation,”  posted March 5, 2009.
• “EPA Administrator Issues Memorandum Prohibiting Controls on Carbon Dioxide in Clean Air Act Permits,” posted December 21, 2008.
• “GAO Issues ‘Expert Opinion on the Economics of the Policy Options to Address Climate Change,’” posted June 9, 2008.
• “Senate ‘Debates’ Global Warming Bill,”  posted June 9, 2008.
• “EPA Administrator States that Greenhouse Gas Regulation May Not Be Issued Until After January, 2009,”  posted May 20, 2008.
• “States File Lawsuit to Enforce Ruling in Massachusetts v. EPA,”  posted April 3, 2008

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On March 10, 2009, the U.S. Environmental Protection Agency issued a news release proposing the first comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States.  Although the EPA has yet determine whether greenhouse gases, such carbon dioxide, are "pollutants" under the Clean Air Act, the EPA has taken this step to gather "comprehensive and accurate data about the production of greenhouse gases."

The EPA stated that the new reporting requirements would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, as well as large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year.  The EPA estimates that it will affect approximately 13,00 facilities, which account for about 85% to 90% of greenhouse gases emitted in the United States.  For a listing of the various industries that EPA believes will be affected, see the end of this post.

In order to differentiate it from the mandatory greenhouse gas reporting programs developed by states and regional programs, the EPA will require automobile, truck and engine manufacturers to report emissions from the engines they produce.  The first annual report would be submitted to EPA in 2011 for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011.

The proposed rule will be open for public comment for 60 after publication in the Federal Register, which has not yet occurred.  Two public hearings will be held during the comment period.

The Proposed Rule:

• Preamble to the proposed rule.
• Text of the proposed rule.

Information regarding the public hearing:

• Public Hearing on April 6 and 7, 2009, at EPA Potomac Yard Conference Center, Arlington, VA.
• Public Hearing on April 16, 2009, at Sacramento Convention Center, Sacrament0, CA.

Other Information regarding the Proposed Rule:

• EPA March 10, 2009, press release.
• Power point presentation providing a general overview of the Proposed Mandatory Greenhouse Gas Reporting Rule.
• General fact sheet for the Proposed Mandatory Greenhouse Gas Reporting Rule.
• Information sheets for each of the source categories in the Proposed Rule.

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