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

A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Monday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Five More MMA Turbines Face Review.--- George Brennan, Cape Cod Times, October 21, 2009
After an automated review of 17 proposed wind turbines at the Massachusetts Military Reservation, the Federal Aviation Administration flagged five more as a presumed hazard to aviation. Nine of the 17 proposed by the National Guard at the height of 400 feet were already indicated as presumed hazards to aviation or radar on the base, but the additional five were found to potentially pose a risk when pilots have to use instruments to land. The FAA’s obstruction expert is re-evaluating whether the turbines are really a hazard, and the FAA has indicated that it will work with and negotiate locations with the Guard.
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Wind Turbines: Airport Fix Could Jeopardize Existing Flight Tool. --- Kathleen Fox, Urbana Daily Citizen, October 26, 2009
Airport Manager Carol Hall is concerned about a proposed localizer and wind turbines at Grimes Field Airport in Urbana, Ohio. The Everpower company offered to purchase and install a localizer at the airport after the Federal Aviation Administration indicated that 38 of its 70 proposed turbines could cause problems for approaching aircraft, but Ms. Hall states that placing a localizer navigational aid at the airport would put the existing VOR navigational aid in jeopardy, and added that 90 percent of the pilots who use the airport are not instrument-rated and thereby not certified to use the localizer as a navigational aid.
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FAA: Some Parts of New Delta Lease “Anticompetitive.” --- Kelly Yamanouchi, Atlanta Journal-Constitution, October 21, 2009
The city of Atlanta, Georgia and Delta Air Lines are pushing for a seven-year deal at Hartsfield-Jackson International airport to replace a lease expiring next year, but the Federal Aviation Administration says some terms of the draft are anticompetitive. The FAA said some provisions would limit the city’s ability to accommodate a new entrant or existing carrier that wishes to expand at the airport, and criticized language that could prevent the airport from reclaiming gates not fully used by airlines.
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Hartsfield-Jackson’s Future Hangs On Lease With Delta.--- Maria Saporta, Sporta Report, October 25, 2009
The partnership between Delta Air Lines and the city of Atlanta, Georgia has led to Delta becoming the world’s largest airline and Hartsfield-Jackson International airport becoming the world’s largest and busiest. The current negotiations on a master lease between the city and airline are important as each attempt to maintain their self-interests while coming to agreement. Major concern about the draft agreement stems from several potentially anticompetitive provisions, and competition from other airlines is essential for Hartsfield-Jackson, its travelers, and surrounding community and region. The Atlanta City Council Transportation Committee, which will vote on whether or not to accept the draft, must remember that the airport needs to “keep its options open” for future relationships with other airlines.
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Wandering Flight Spurs Nap Probe. --- Andy Pasztor, Wall Street Journal, October 23, 2009
The National Transportation Safety Board is investigating whether pilots of Northwest Airlines Flight 188 dozed off or were distracted when they fell out of contact with air-traffic controllers for more than an hour and overshot their destination by 150 miles on October 21, 2009. The pilots said they lost situational awareness because they were engaged in a “heated discussion” over airline policy; the plane’s cockpit voice recorder and digital flight-data recorder will be analyzed by federal investigators, and Delta Air Lines, Northwest’s parent company, is conducting its own internal investigation. Though the Northwest Flight 188 pilots may not have fallen asleep or been suffering from fatigue, the incident is only spurring the industry-wide call for new safety rules on pilot fatigue.
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Experts Over How Flight Overshot Airport.--- Micheline Maynard and Matthew Wald, New York Times, October 23, 2009
Safety investigators are perplexed by the Northwest Flight 188 pilots’ explanation that they overshot their destination and made no radio contact for over an hour because they were debating airline policy, instead wondering if both had fallen asleep. More than a dozen air traffic controllers tried to contact the pilots, and one former chief executive of a major airline said audio would be heard if a pilot was awake, unless the radio was tuned to the wrong frequency. Another airline executive said that it is very possible the plane could have been flown “without active human involvement” in the time it was flying at a constant altitude when it should have been descending.
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Could Letting Pilots Take a Nap Make Flying Easier? --- Associated Press,October 24, 2009
International carriers like Air France, British Airways, and Qantas allow their pilots to nap, while the Federal Aviation Administration prohibits pilots from sleeping while flying. The Air Transport Association has been pressing the FAA to allow controlled cockpit napping, citing research that shows a mid-flight nap could significantly reduce the risks of overall pilot fatigue. In light of the recent Northwest Flight 188 incident, whose pilots may have been drowsy and consequently missed calls from air traffic controllers, controlled naps might make flying safer.
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Pilots Say They Lost Track of Time, Location. -- Portland News October 23, 2009
Northwest Airlines Flight 188 pilots Timothy Cheney and Richard Cole said they were not fatigued and did not fall asleep, but were instead using their laptops to go over scheduling, in violation of company policy. They also told federal investigators that they did not realize their mistake in flying past their destination and being out of communication with air traffic controllers until contacted by a flight attendant. Co-pilot and First Officer Cole said there was no argument between the pilots and said reports that they fell asleep were untrue.
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Northwest Pilots’ ‘Distraction’ Blamed in Airport Overshoot. Alan Levin, USA Today October 26, 2009
The two pilots of Northwest Airlines Flight 188 told federal investigators that they did not pay attention to their duties and flew past their Minneapolis, Minnesota destination because they were so engrossed in examining a new computer program that arranges pilot schedules on their laptops. Both stated that there was a distraction in the cockpit, and a “concentrated period of discussion” where they did not monitor the airplane or calls from air traffic controllers.
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FAA Revokes Pilot Licenses. --- FAA Press Release, Otober 27, 2009
The Federal Aviation Administration revoked the licenses of the two Northwest Airlines pilots of Flight 188 for violations of a number of Federal Aviation Regulations, including failure to comply with air traffic control instructions and clearances and operating carelessly and recklessly. The revocations are effective immediately, though the pilots have 10 days to appeal the emergency revocations to the National Transportation Safety Board.
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FAA Updates Certification Rules for Aviation Products and Parts. --- FAA Press Release, October 22, 2009
The Federal Aviation Administration published new regulations for manufacturers of aircraft and aviation products, updating and standardizing FAA requirements to better align them with the current global manufacturing environment. Most of the FAA’s certification rules were issued in 1964, and the aircraft manufacturing industry has evolved significantly since. There are several major changes in the new regulations, including standardization of quality control system requirements for all aviation manufacturers and updated export requirements of parts.
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Broward Commission To Look At, Possibly Vote On, $800 Million Airport Expansion. --- Broward Net, October 21, 2009
Broward County, Florida could be paying $800 million to extend a runway at Fort Lauderdale-Hollywood International Airport. To that end, the Broward Commission conducted a workshop with the County’s director of aviation, who presented the commission with various funding options, which included passenger facility charges, or airport fees, funds from the Florida Department of Transportation, and grants from the Federal Aviation Administration. The commissioners requested more numbers and analysis on issues ranging from operating revenue to the impacts of delays before the next commission meeting.
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FAA Signs Off on Destin Airport Noise Study. --- Fraser Sherman, The Destin Log, October 22, 2009
Destin Airport (Florida) received Federal Aviation Administration approval for its noise study, which will authorize the airport to carry out eight recommendations for the mitigation of its current and future noise levels. The FAA’s approval does not provide or guarantee federal grants that would be necessary for the implementation of some of the solutions, but would allow the county to start the application process immediately.
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World Aviation Authorities Tackle Climate Change. --- FAA Press Release, October 23, 2009
At the International Civil Aviation Organization meetings in Montreal, the Federal Aviation Administration and its counterparts from around the world reached an agreement that will guide the aviation community as it tackles climate change. The countries participating in the agreement adopted a program of action to reduce greenhouse gas emissions, striving for a 2 percent annual fuel efficiency improvement between 2012 and 2050. ICAO also identified a broad range of measures available to all states that can be used to limit and reduce greenhouse gas emissions from international aviation, and also discussed plans to develop recommendations on carbon-neutral growth and long-term emissions reductions for the international aviation sector.
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Airplane Safety Features to Make Crashes Survivable. --- Lisa Stark and Devin Dwyer, ABC News, October 26, 2009
A new Federal Aviation Administration rule has gone into effect requiring commercial planes to have stronger seats and better head protection for passengers, to ensure they survive a hard impact and have time to get out of an aircraft quickly. Manufacturers will be required to install seats that can withstand impacts of 16 times the force of gravity on all new aircraft, which will essentially absorb the energy of the crash. Many commercial planes already have the stronger seats in place, and some airlines have begun to install seatbelts equipped with air bags on some passenger seats.
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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

FAA Bill Could Pass This Year. --- Adrian Schofield, Aviation Week, October 7, 2009

A staff member from the Senate aviation subcommittee believes that the Federal Aviation Administration reauthorization bill can be finished this year, though the Senate must have its bill approved by November to leave enough time for a House/Senate conference on the bill. The Commerce Committee has approved the bulk of the bill, but the Finance Committee has yet to contribute its proposals on tax changes, despite “tremendous pressure” from both lobbyists and Senate leadership to complete its work. There are some big differences to be resolved between the House and Senate bills, but none involve FAA funding and the houses are “basically aligned” on the aviation measures.

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DOT Issues Lithium Battery Safety Advisory to Increase Aviation Industry Awareness. --- Department of Transportation, October 7, 2009

 

The Department of Transportation issued a safety advisory targeting shippers and carriers responsible for compliance with hazardous materials regulations covering both passenger and cargo aircraft. The advisory highlighted recent aviation incidents involving lithium batteries and outlined the current regulatory requirements for their safe transportation. It also included an announcement that both the Pipeline and Hazardous Materials Safety Administration and Federal Aviation Administration would be stepping up enforcement of safety standards. Since 1991 more than 40 air transport-related incidents involving lithium batteries and devices powered by lithium batteries have been identified, many directly related to the lack of awareness of the regulations, risks, and required safety measures applicable to the shipment of lithium batteries.

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Controllers: FAA’s Computers Prone to Problems. --- Joan Lowy, Associated Press, October 7, 2009

 

The Federal Aviation Administration’s new computer system was unsuccessfully deployed at a Salt Lake City regional air traffic control center, raising doubts about whether it can be operational 15 months from now when the current computers must be replaced. The new ERAM (En Route Automation Modernization) system is based on satellite technology, whereas the current HOST system uses World War II-era radar technology and is a unique computer language that fewer technicians today can understand. In Salt Lake City the new system misidentified planes several times and managers in SaltLake refused to deploy it again, choosing to safely transition back to the HOST system instead.

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Report Warns Airline Delays Will Increase. --- Bruce Siceloff, Charlotte Observer, October 8, 2009

In a newly released report, the Brookings Institution warns that there will be more delayed flights and longer delays as the U.S. economy recovers and airports get busier in the coming months. The report suggested that federal airport spending would be more beneficial for travelers if it were focused on increasing capacity at the most congested metropolitan airports instead of being scattered across the U.S., and that the Obama administration’s planned high-speed rail network could cut heavy traffic on air corridors of less than 500 miles, which account for half of the nation’s flights.

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FAA Announces Serious Runway Incursions Down by 50 Percent. --- FAA Press Release, October 8, 2009

Federal Aviation Administration Administrator Randy Babbitt announced that serious runway incursions were down 50 percent for the most recent 12-month period, compared to the previous year. There were only 12 serious incursions in fiscal year 2009 with only 2 involving commercial carriers, while there were 25 such events in fiscal year 2008 with 9 involving commercial carriers. Administrator Babbitt praised the progress made since the FAA’s Runway Safety “Call to Action” meeting two years ago, but stated that there is still much work to be done to continue reducing the potential risk of collisions on runways.

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FAA Fears Wetlands Work Near NJ Airport. --- Associated Press, October 9, 2009

 

Federal Aviation Administration officials fear that a wildlife restoration project in the Richard P. Kane Natural Area could create a threat to public safety at nearby TeterboroAirport in New Jersey. TeterboroAirport averaged five bird strikes per 10,000 landings and departures last year, more than double the rate at Newark Liberty International and LaGuardiaAirports, but an airport wildlife biologist for the U.S. Agriculture Department says a busy airport and abundant bird population can coexist if properly managed.

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Getting Air Traffic Under Control. --- Bryan Walsh, Time, October 10, 2009

 

Delays and inefficiencies in air travel are largely due to an outdated traffic-control system that relies on slow, ground-based radar stations and repetitive communication, and the inefficiencies also mean fuel is wasted and unnecessary carbon dioxide emitted at a time when the air-travel industry is coming under scrutiny for its role in climate change. The air-travel industry will be under increasing pressure to cut its emissions or pay a carbon tax, and while the best immediate opportunity may be to improve fuel efficiency, the best way to increase fuel efficiency is to update the current air-traffic control system using NextGen, the Federal Aviation Administration’s long-term plan to replace the current system with one using satellites and a global positioning system.

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Airlines Set Own Emission Targets...but is fuel efficiency enough? --- Associated Press, October 10, 2009 and Steven Taber, Aviation & Airport Development Law, September 24, 2009

Members of the International Air Transport Association pledged to improve fuel efficiency by 1.5 percent a year until 2020 and called on governments worldwide to provide incentives to speed biofuel development.

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In the short run, however, technological innovations like those that would reduce emissions will not be available for implementation in the near future.

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It Is Official! The FAA Rescinds Slot Auction Rule. --- Steven Taber, Aviation & Airport Development Law, October 10, 2009

 

The Federal Aviation Administration officially rescinded its plan to enact mandatory slot auctions on LaGuardia, John F. Kennedy, and Newark airports. In 2008 final rules were published that established procedures to address congestion in the New York City area by assigning slots at the airports, assigning the majority of slots to existing operators, and creating a market by annually auctioning off a limited number of slots in each of the first five years of the rule. The rules were the subject of much litigation and controversy ever since they were first proposed by the Bush Administration, but have now been rescinded partly because of the Omnibus Appropriations Act, and the state of the economy in general.

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Fly-By-Night Story on Airport Funds Goes Off Course. --- Chuck Sweeny, Rockford Register Star, October 10, 2009

 

A Wall Street Journal story criticizing ChicagoRockfordInternationalAirport and other airports for receiving Federal Aviation Administration grants for low-priority projects is being slammed itself. Rockford International Airport Authority Chairman Mike Dunn retorts that Rockford International is a world-class facility that helps relieve congestion at O’Hare International Airport, and is one of just three airports in Illinois authorized to land flights from foreign countries. It is the port of re-entry for thousands of U.S. military personnel en route from the Iraq and Afghanistan wars to their home bases in the U.S., and will likely see the number of passengers it serves grow as the economy improves. Freight and passenger service improvements at the airport have helped generate economic development and will prepare Rockford International for its future role as a “vital part” of the Chicagoland aviation system.

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Report Says Philadelphia Air Traffic Exceeds U.S. Average. --- Linda Lloyd, The Philadelphia Inquirer, October 9, 2009

 

Passenger traffic at Philadelphia International Airport grew 45 percent in the last decade, nearly three times the national average for the 100 largest U.S. metropolitan areas, but 73.4 percent of flights arrived on time during fiscal year 2009, below the national average of 78.4 percent. The combined Philadelphia-New York airspace contributes to 75 percent of delays nationally and affects business travelers everywhere.

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Non-Radar Air-Traffic System Debuts. --- Alan Levin, USA Today, October 12, 2009

 

A new system monitoring air traffic above the Rockies was recently implemented in Colorado. Using 20 sensors clustered around four airports within the Rockies, the sensors monitor radio broadcasts from planes and computers can determine the plane’s location by measuring minute differences in the time it takes for broadcasts to reach the various sensors. The system uses similar technology to the satellite-based system the Federal Aviation Administration is installing nationwide to replace radar, and is a sign that the technology underpinning the satellite system can work.

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Key House Members Work Against User Fees. --- Kerry Lynch and Adrian Schofield, Aviation Week, October 12, 2009

 

House aviation subcommittee chairman Jerry Costello and Thomas Petri have begun a lobbying effort against potential aviation user fee proposals for the fiscal year 2011 budget. In a letter being circulated within the House, Costello and Petri state that they believe user fees will place an undue administrative burden and associated costs on system users and cited previous House opposition in both the 110th and 111th Congresses to proposals of using user fees to finance the Federal Aviation Administration.

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ATM Providers Welcome ICAO Declaration, WantStates to Take More Action

 

The Civil Air Navigation Services Organization commended the achievements of the International Civil Aviation Organization’s High Level Meeting on International Aviation but expressed disappointment that no actions were recommended for member states to undertake themselves to assist the aviation industry in meeting its environmental goals. CANSO Secretary General Alexander ter Kuile identified four steps that ICAO nations could immediately take to deliver an extra 0.5% of fuel efficiency improvement, on top of ICAO’s recommended target of 1.5% improvement through 2020 with carbon-neutral growth thereafter.

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San Francisco Airport, Chevron, and EPA Agree to $1 million in Environmental Improvements at InternationalAirport.

SFO Fuel, Chevron, and the Environmental Protection Agency entered into agreements to resolve violations of the Clean Water Act at a large jet fuel storage facility located at San FranciscoInternationalAirport. SFO Fuel representatives self-reported inadequate secondary containment capacity--which could result in a catastrophic spill into San FranciscoBay--and the EPA investigated and agreed. SFO Fuel, which leases the facility, and Chevron, which operates the facility, have adjusted their operations at the tank farm with alarms and automatic shut-off valves to reduce the volume that is present in the tanks until the facility is able to increase the size of the secondary containment area. The agreements require the facility to come into full compliance by next year, and SFO Fuel and Chevron agreed to pay a penalty of $177,500.

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FAA Proposes $3.8 Million Penalty Against United Airlines. --- FAA Press Release, October 14, 2009

 

The Federal Aviation Administration is proposing a $3.8 million penalty against United Airlines for allegedly operating one of its Boeing 737 aircraft on more than 200 flights after the carrier violated its own maintenance procedures on one of the plane’s engines. Between February 10 and April 28, 2008 the aircraft was flown on more than 200 revenue flights in a less-than-airworthy condition.

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FAA Proposes $5.6 Million Civil Penalty for US Airways, Inc. --- FAA Press Release, October 14, 2009 andUS Airways Responds. --- US Airways Press Release, October 14, 2009

 

The Federal Aviation Administration proposed a $5.4 million penalty against US Airways, Inc. for allegedly operating 8 aircraft on a total of 1,647 flights between October 2008 and January 2009 that were not in compliance with certain Airworthiness Directives or the airline’s maintenance program.

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US Airways issued a statement that it experienced challenges during the integration of maintenance systems and processes on flights that occurred in that time period, and is working with the FAA to investigate and correct any discrepancies and achieve a resolution of the FAA’s civil penalty proposal.

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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.

 

 

The predominance of CO2 as the GHG of concern leads to another issue: measurement of GHG. Many reports state their findings in terms of “CO2e,” or CO2 equivalent. Carbon dioxide equivalency is a quantity that describes, for a given mixture and amount of greenhouse gas, the amount of CO₂ that would have the same global warming potential (GWP), when measured over a specified timescale (generally, 100 years). For example, the generally accepted GWP for methane over 100 years is 25 and for nitrous oxide 298. This means that emissions of 1 million metric tons of methane and nitrous oxide, respectively, is equivalent to emissions of 25 and 298 million metric tons of carbon dioxide. This article will keep the convention of designating GHG other than CO2 in terms of “CO2e.”

Most reports and studies begin with the groundbreaking work of the United Nation Intergovernmental Panel on Climate Change (IPCC), which, in 1999 estimated that, based on earlier data, fuel combustion for aviation contributes approximately 2% to the total anthropogenic CO2 emissions inventory, and, if left unmitigated, this could grow to as much as 4% by 2050. Despite the age of the data, the 2% number has been used consistently throughout the first decade of the 21^st century. The International Air Transport Association (IATA) in a 2006 press release relied on IPCC report by stating that “[a]ir transport contributes a small part of global CO2 emissions – 2%.” IATA press release , 2^nd Aviation Environment Summit. Even as recently as September, 2009, the Transportation Research Circular of the Transportation Research Board fudges the issue by stating in the section about climate change and greenhouse gases that “fuel combustion for aviation contributes approximately 2% to the total anthropogenic CO2 emissions inventory.” What these estimates leave aside is the fact that CO2 emissions are only one facet of the greenhouse gas equation. 

The aviation industry tried to correct this in its paper Aviation and Climate Change: Views of Aviation Industry Stakeholders, published in February, 2009, by stating that “greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, the report that the paper cites to, the U.S. EPA’s Inventory of Greenhouse Gas Emissions and Sinks: 1990-2006 (April 15, 2008) (2008 EPA Inventory), only mentions emissions of CO2 in its discussion of its inventory of greenhouse gases in the creation of energy. See, 2008 EPA Inventory, Chapter 3. Moreover, the EPA only examined the aviation sector’s combustion of fossil fuel, and did not, for example, take into account the radiative forcing effect of cirrus cloud formation has on climate change. When the EPA published its next inventory, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2007, (March 2009) (2009 EPA Inventory), the contribution of aviation to carbon dioxide emissions increased. It estimated that when international fuels were included, domestic and international commercial, military, and general aviation flights represented about 3.4 percent of the total emissions of CO2 in United States. 

There is no question that the emission of CO2, and, for that matter, the combustion of fossil fuels, does not tell the whole story with respect to aviation. However, there are relatively few studies that focus solely on aviation and examine the effects of all GHGs and not just CO2. In 2005, Robert Sausen and a group of climate scientists published their article Aviation Radiative Forcing in 2000: An Update on IPCC (1999) (Sausen 2005). That article concluded that when NOx emissions, contrails and cirrus clouds are added into the mix, aviation’s impact on climate change is about 2 to 5 greater than that of CO2 alone worldwide. This would mean that aviation would have an impact on climate change in the range of 4% to 10% when all aspects of emissions of GHG and other radiative forcing factors are taken into account. These numbers were updated in a July, 2009, article Aviation and Global Climate Change in the 21^st Century (Lee et al., 2009) which appeared in the periodical Atmospheric Environment. The authors, a group of atmospheric scientists, concluded that when aviation-induced cirrus radiative forcing is included, aviation represents 4.9% of total anthropogenic “radiative forcing of climate.” While these studies are not United States specific, as the EPA inventories are, since these studies consider all GHGs emitted by aviation (not just carbon dioxide), are focused entirely on the climate effect of aviation, and are based more recent data, the conclusion that aviation contributes close to 5% of climate change is more accurate than the “under 2%” used by many in the aviation industry.

B.            Claims of More Fuel Efficient Aircraft Are a Little Exaggerated

If one were to rely solely on the aviation industry’s press releases, one could come to the conclusion that the aviation industry is doing its part to fight climate change by virtue of the fact that all aircraft have become more fuel efficient. In the aviation industry paper Aviation and Climate Change: The Views of Aviation Industry Stakeholders they state that “[o]ver the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous GHG savings.” February 2009, citing International Civil Aviation Organization, Environmental Report 2007, p. 107.   This is also the position that the International Air Transport Association has taken in its publications.   For example, in a press release regarding the Second Aviation and Environment Summit in 2005 IATA claimed that “Aircraft entering today’s fleets are 70% more fuel efficient than they were 40 years ago.” Likewise, the Air Transport Action Group (ATAG) website, www.atag.org states that “[t]oday’s world fleet is about 70% more fuel efficient than they were 40 years ago.” Seventy percent is also the number used by IATA for the amount of reduction of CO2 emissions per passenger kilometer. Aviation Environment Summit conclusions, 2005 (“Over the past 40 years, the commercial aviation industry has made tremendous progress in . . . reducing CO2 emissions per passenger kilometer (by 70%) and in improving fuel efficiency”). As recently as May 6, 2008, Douglas Lavin, Regional Vice President of North America for IATA testified before the U.S. House Subcommittee on on Aviation that “[o]ver the last forty years, the commercial airline industry . . . improved its fuel efficiency by 75%, leading to a similar reduction in CO2.” The improvement in fuel efficiency is at the heart of the industry’s proposals for meeting climate change challenges.

All of these statements, however, are based, in part, on the IPCC’s 1999 report, Special Report on Aviation and the Global Atmosphere. What one will note in reviewing the 1999 report is that it compares current jets with jets of the early 1960s. It does not, however, compare jets to piston engine aircraft. If they did that, a 2005 study from the Dutch National Aerospace Laboratory (NLR), which uses the IPCC data, concludes that aircraft have not made any progress in terms of fuel efficiency. “If one takes new aircraft from the early fifties (i.e. the last piston-engine aircraft) as the baseline, it shows that these last long-haul piston-powered airliners were as fuel-efficient as today’s average turbojet aircraft.” Fuel Efficiency of Commercial Aircraft: An Overview of Historical and Future Trends, NLR 2005, p.18. The GAO picked up on this dichotomy in its June, 2009, report Aviation and Climate Change GAO-09-554, p.4, fn. 5  noting that “some aircraft available in the 1950s were about equally as fuel efficient as jets currently available today.”

The Dutch report goes further and claims that even the report of 70% increase in the efficiency of jet engines from the early 60’s until the present may be overstated. Instead, the report claims, the fuel efficiency savings is closer to 55%. “If one takes new aircraft from the early sixties (i.e. the first jets) as the baseline (as presented in the IPCC report), an improvement of 55% is found rather than the 70% presented in the IPCC report.” NLR 2005, p. 18.   The Dutch report explains that main reason for this difference “is the different choice of baseline aircraft (B707 instead of DH Comet 4). The IPCC reference aircraft – the DH Comet 4 – has a rather atypical (i.e. very low) energy efficiency and only a very limited number were in operation. Further, the difference between the old and new aircraft chosen for the micro analysis is somewhat less than given by the IPCC.” NLR 2005, p,18. Thus, reliance on increases in fuel efficiency may not be an effective method to compensate for the effect that aviation has on climate change.

The industry reliance on innovation in creating more fuel efficient engines and aircraft, however, may be misplaced. Although recent innovations in engine and airframe design may eventually result in a more fuel efficient fleet of aircraft, they may not be sufficient to carry the industry forward to meet increasing demands on aviation to cut GHG emissions, at least in the short run. The GAO in its recent report concluded:

While airlines currently rely on a range of improvements, such as fuel-efficient engines, to reduce emissions, some of which may have limited potential to generate future reductions, experts we surveyed expect a number of additional technological, operational, and alternative fuel improvements to help reduce aircraft emissions in the future. However, according to experts we interviewed, some technologies, such as advanced airframes, have potential, but may be years away from being available, and developing and adopting them is likely to be costly. In addition, according to some experts we interviewed, incentives for industry to research and adopt low-emissions technologies will be dependent to some extent on the level and stability of fuel prices. Finally, given expected growth of commercial aviation as forecasted by IPCC, even if many of these improvements are adopted, it appears unlikely they would greatly reduce emissions by 2050.

GAO 2009, p.1. Over the short run, then, (i.e., between now and 2050) increases in fuel efficiency cannot be relied upon for decreases in GHG emissions. This was also the conclusion of the authors of Aviation and Global Climate Change in the 21^st Century (2009). They concluded that “[a]n examination of a range of future technological options shows that substantive reductions in aviation fuel usage are possible only with the introduction of radical technologies.” Despite the aviation industry’s claims of increased fuel efficiency and its belief that reducing GHG emissions makes economic sense, it may very well be that the reductions necessary to achieve the goals currently under discussion will not be possible.

Moreover, there are distinct trade-offs between fuel efficiency that may not necessarily reduce emission of elements that cause climate change. As Mahmood Manzoor, a Senior Specialist with Messier-Dowty, Inc., points out in his article Sustainable Development – A Major Challenge to the Aviation Industry (Manzoor 2009):

Over the past 40 years, the aviation industry has made tremendous progress in improving fuel consumption (by 70%) and reducing gaseous emissions of CO and hydrocarbons by 50% and 90% respectively. However, the high combustion temperatures and pressures of aircraft engines tend to increase the production of particulate matter and NOx [both of which contribute to climate change].

Manzoor, § 4.2. Resolving this dilemma has proven to be a nettlesome problem for the industry. Mahmood Manzoor continues:

Environmental trade-offs between NOx and other emissions, noise and CO2 that are inherent in aircraft and engine design, continue to be discussed in detail within CAEP [Committee on Aviation Environmental Protection]. The low emissions TALON II™ combustor reduced NOx by over 25%, but at the expense of an increase in smoke from 30% to 93% of the ICAO [International Civil Aviation Organization] standard. Similarly, a trade-off for a Dual Annular Combustor (DAC) where NOx and smoke were reduced by approximately 30% and 67% respectively while hydrocarbons and CO increased by 15% and 130%. . . . All trade-offs are important, but with the emphasis on minimizing fuel burn (therefore CO2) and reducing noise, manufacturers are being forced to optimize engine design within a narrow physical design space.

Manzoor, § 4.3. The result is that there is not a direct correlation between an increase in fuel efficiency and decrease in the impact of climate change. Fuel efficient engines, operating at higher temperatures at high altitudes could create more of an impact on climate change even if they are emitting less CO2.

 

C.            Aviation is More “Climate Intensive” Than Previously Thought

 

As a corollary to the previous section, the aviation industry has long claimed that it is the least “climate intensive” of all of the transportation sectors. That is, on “liter per passenger kilometer,” or “gallon per passenger mile,” modern aircraft are more “climate-friendly” than cars, trucks, buses and even high-speed trains. IATA trumpets this fact on its website: “modern aircraft achieve fuel efficiencies of 3.5 litres per 100 passenger km [approximately 78 passenger miles per US gallon] . . . The A380 and B787 are aiming for 3 litres per 100 passenger km – better than a compact car!” http://www.iata.org/whatwedo/environment/fuel_efficiency.htm; see also, Airbus A380 website  http://events.airbus.com/product/a380_backgrounder.asp (“The green giant, more fuel-efficient than your car”).

Environmental groups, on the other hand claim that Aviation is between two and ten times more climate-intensive than surface transportation. They claim that the aviation industry data ignore four crucial factors:

1. The figure of 3 or 3.5 liters per 100 passenger kilometer assume a full aircraft, i.e., a load factor of 100%. Thus, the number is representative of “aircraft seat” rather than “passenger.”
2. The occupancy rate of cars (and trucks) at distance competing with aircraft (i.e., long hauls) is higher than the average occupancy rate of 1.6 that is frequently used when assessing the climate impact of cars.
3. The figure of 3 to 3.5 liters per 100 seat kilometers applies to long-haul flights with large aircraft. Aircraft that do indeed compete with surface transport are smaller and fly shorter distances and are hence less efficient than 3.5 liters per 100 seat kilometers.
4. The climate impact of non-CO2 emissions is ignored. Because of the effects of NOx, contrails and cirrus clouds at high altitude, a liter of fuel burnt in an aircraft at such altitudes has a greater climate impact than a liter burnt by surface transportation.

With load factors between 70% to 80% currently, the actual amount “per passenger” will be higher than the 3 to 3.5 liters per 100 passenger kilometer. The GAO avoided this trap by showing how modern aircraft fuel efficiency has increased on a “available seat miles per gallon.” As a result, the GAO’s report shows the current efficiency to be at 58 gallons per available seat mile, which is significantly lower than the 78 gallons per available seat mile reported by the IATA.

Taking the above factors into consideration, a CE Delft report To Shift or Not to Shift, That’s the Question: The Environmental Performance of the Principal Modes of Freight and Passenger Transport in the Policy-Making Context concluded that aviation performs three to ten times worse in terms of climate impact than cars on competing distances, and some two to ten times worse than high-speed trains. Likewise, when one examines aviation as a freight hauling industry, it does not do any better when compared to surface modes of transportation. The study External Costs of Transport (INFRAS/IWW 2004) showed that when it comes to freight transport, aviation is even worsein terms of emissions than passenger transport. The external costs of aircraft-related climate change are approximately ten times greater than for trucks, the second worst mode. Although none of these reports can be said to be the definitive word on whether aviation is more or less climate intensive than surface transportation, it does highlight the fact that aviation is probably more climate intensive than what was thought.

 

I.        Conclusion: Policy and Legal Implications

So what are the policy and legal implications of these facts? First and foremost, it is evident that aviation plays a larger role in climate change than most in the aviation industry would like to admit. This means that now is not the time for complacency or resting on illusory laurels. If aviation is not to be left behind by the auto and truck industry as well as shipping, it needs to take action sooner rather than later to control its impact on climate change. Second, these facts indicate that, at least in the short run, technological innovations will not noticeably affect the impact that aviation has on climate change. As both the GAO and Lee et al. pointed out, although the aviation industry is making technological advances that will reduce emissions that create climate change, these advances will not be available for implementation in the near future. Third, airports cannot walk away from issues surrounding the climate change impact created by aircraft. Although according to a 2006 Seattle-Tacoma International Airport greenhouse gas inventory 90% of total CO2 emissions associated with that airport were form aircraft operating above 3,000 feet, the airport is still responsible for those emissions. Using simple “but for” logic, if it were not for Seattle-Tacoma Airport, those airplanes would not be landing there, therefore, the airport should take responsibility for all incoming flights.

 

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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:

• Bill Glover, Managing Director, Environmental Strategy, Boeing Commercial Airplanes;
• James C. May, President and CEO, Air Transport Association of America, Inc.;
  
• Douglas E. Lavin, Regional Vice-President (North America), International Air Transport Association; and
  
• James K. Coyne, President, National Air Transportation Association.

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:

• Captain Mary Ann Schaffer, Chairperson, Air Lines Pilots Association;
• Mark M. Reis, Managing Director, Seattle-Tacoma International Airport;
• Richard L. Altman, Executive Director, Commercial Aviation Alternative Fuels Initiative; and
• Opening Remarks of Subcommittee Chair, Rep. Jerry F. Costello.

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

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