Early Draft of Boxer-Kerry Climate Change Bill Released, Includes Aircraft Emission Provision, But Still Much Work to Be Done

Posted on September 29, 2009 by Chevalier, Allen & Lichman, LLP

Update 09/30/09 The Boxer-Kerry bill introduced at the press conference this morning - also known as Clean Energy Jobs and American Power Act - dropped the provision requiring the EPA Administrator to promulgate standards for aircraft and aircraft engines.  Instead, it includes a more general provision that

. . . the Administrator may establish provisions for averaging, banking, and trading of greenhouse gas emissions credits within or across classes or categories of motor vehicles and motor vehicle engines, nonroad vehicles and engines (including marine vessels), and aircraft and aircraft engines, to the extent the Administrator determines appropriate and considering the factors appropriate in setting standards under those sections.

In his article that appeared in the New York Times on September 28, 2009, Darren Samuelson stated that Sen. John Kerry (D-Mass) is attempting to move the discussion away from “cap-and-trade” and to focus on “pollution reduction:”

Kerry last week sought to change the vernacular surrounding the climate bill and sell its concepts more broadly, insisting it is not a "cap and trade" proposal but a "pollution reduction" bill. "I don't know what 'cap and trade' means. I don't think the average American does," Kerry said. "This is not a cap-and-trade bill, it's a pollution reduction bill"

The early discussion draft that was released on September 29, 2009, reveals that the “Boxer-Kerry” bill is similar to the HR 2454 (also known as “Waxman-Markey” or “American Climate and Energy Security Act”) which was passed by the House earlier this past summer, most notably, they both “contain the same longer-term emissions limits of 42 percent below 2005 levels by 2030 and an 83 percent cut for 2050.”   http://bit.ly/3TPuk   There are, however, a couple of notable differences.

  1. Boxer-Kerry “diverges from the House measure in its push for a 2020 emissions target of 20 percent, compared with the House's bill's 17 percent limit.” http://bit.ly/3TPuk
  2. In Subtitle D “Carbon Market Assurance,” oversight and assurance of carbon markets are given solely to the “Federal Commodities Trade Commission.”  § 431(b)(1). The working group established in § 431(c) will make its recommendations to the Commodity Futures Trading Commission (CFTC).
  3. There is a short Subtitle – “Nuclear and Advanced Technologies,” which covers “nuclear grants and programs,” but nothing else. Although the draft includes a section “Nuclear Waste Research and Development,” it is, for the time being, blank.  Subtitle D, “Nuclear and Advanced Technologies,” §§ 141 and 142.
  4. Boxer-Kerry includes a provision stating that the EPA Administrator shall promulgate greenhouse gas emission standards for aircraft and new aircraft engines. § 821(c).

The early draft also is different from the House Bill for what it does not contain, for example:

  1. Boxer-Kerry does not bar the EPA from considering greenhouse gas emissions from “international indirect land-use changes” when implementing the national biofuels mandate. http://bit.ly/3TPuk
  2. Unlike ACES, Boxer-Kerry does not contain a section that restricts the EPA’s ability to enact climate change regulations. http://bit.ly/3TPuk

Despite these differences, the bulk of the draft Senate bill contains many of the same provisions of ACES. Moreover, this is an early draft of the bill, the completed bill is expected to be released at a Wednesday, September 30, 2009, press conference. As Darren Samuelsohn stated in his New York Times article:

Already last week, several Democratic senators working outside of the Boxer-Kerry camp said their ideas would be melded into the legislation at a later date. "It's going to need a lot of work," said Sen. Sherrod Brown (D-Ohio).

Yes, indeed.

 

 

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House Subcommittee on Aviation Hears FAA Testimony on Aircraft Emissions of Greenhouse Gases

Posted on May 7, 2008 by Chevalier, Allen & Lichman, LLP
At a May 6, 2008, hearing of the U.S. House Subcommittee on Aviation, the FAA sought to dispel several "myths" concerning the effect that aircraft emissions of greenhouse gases have on the environment.  Coming a little over one month after the EPA announced its plans to issue an Advance Notice of Proposed Rulemaking for aircraft emissions of GHG (see, "EPA Plans to Release an Advance Notice of Proposed Rulemaking Emissions" below),  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that there were three myths that needed to be put to rest.  First, Mr. Elwell stated that aircraft emissions account for only 3% of GHG emissions, and “the largest aviation market in the world is burning less fuel today than in 2000.”  Indeed, Mr. Elwell, said, aviation in general and aircraft in particular are becoming more fuel efficient, now outstripping automobiles in terms of energy intensity - that is automobiles burn more BTUs per passenger mile than aircraft.  This increase in fuel efficiency and the attend reduction in GHG emissions was one of the primary themes of several other witnesses as well:
Second, Mr. Elwell stated that CO2 emissions by aircraft at altitude do not have any more (or any less) effect on climate change than CO2 at ground level.  David H. Fahey, a research physicist for NOAA, has a small issue with that statement, when he responded to Rep. Ehlers' question about the effects of emissions.  Dr. Fahey stated that although CO2 does not affect atmosphere any differently at altitudes, nitrous oxides, a component of aircraft emissions, do.  That, in turn, affects ozone creation and methane. “That aspect of aviation is one that stands out,” Dr. Fahey stated. Moreover, Dr. Fahey continued, aircraft emission create water vapor in the upper atmosphere, i.e., contrails, which in turn creates clouds, which in turn creates "radiative forcing," a primary element of climate change.

Finally, Mr. Elwell wanted to make clear that the U.S. was not falling behind Europe in terms of environmental impact of aircraft emissions.  European aviation emissions, Mr. Elwell testified, have increased three times faster in recent years than U.S. emissions. He says that the U.S. is happy to participate in market-based environmental initiatives, as long as they are “based on mutual consent.”

This led to perhaps the testiest exchange, though came when the Subcommittee heard from Ambassador John Bruton, Head of the Delegation of the European Commission to the United States.  Ambassador Bruton testified about the controversial inclusion of aviation in EU's Emission Trading Scheme.  He believed that because aviation emits far more CO2 than other industries included in ETS, such as steel and oil, aviation must be included in the ETS.  Everyone seemed to acknowledge, however, that ICAO was the proper forum, although Ambassador Bruton indicated that the EU has attempted to go that route, but did not receive any indication that ICAO would take any action.  The members of the Subcommittee apparently did not cotton to the idea that the EU was taking the lead on this issue.  It also should be pointed out that the Lieberman-Warner Bill, currently before the Senate contains an emissions trading program.

Dr. Gerald L. Dillingham, Director, Physical Infrastructure Issues, for the U.S. Government Accountability Office also testified.  It was his belief that the aviation inductry could achieve significant reductions in emissions through the use of "Next Generation Air Transportation System" (NextGen) and an increase in research and development to promote such technologies as biofuels and fuel cells.  NextGen involves new technologies and air traffic procedures that can reduce aviation emissions and incorporates research and development on emissions-reducing technologies.

In short, the industry stated that it was making strides toward fuel efficiency, which would lower the amount of GHG emissions, although a more fuel efficient fleet would also increase the airlines' and aircraft manufacturers' bottom line, as well.  The government pointed to (reasonably) successful efforts made in better management of the airports and airways.  What remains to be seen is what action, if any, the House will take.

Also testifying:
For video of the session, click here for Panel I and here for Panel II.
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