Comments of the

AIR TRANSPORT ASSOCIATION of AMERICA, INC. TO THE EUROPEAN AVIATION SAFETY AGENCY

NOTICE OF PROPOSED AMENDMENT NO 2008-15

“ESSENTIAL REQUIREMENTS FOR CIVIL AVIATION ENVIRONMENTAL PROTECTION”

The Air Transport Association of America, Inc. (ATA) appreciates the opportunity to comment on the Notice of Proposed Amendment (NPA) relating to a potentially expanded environmental mission of the European Aviation Safety Agency (EASA). ATA is the largest airline trade association in the United States, representing the country’s principal U.S. passenger and cargo air carriers1. The association’s fundamental purpose is to foster a business and regulatory environment that ensures safe and secure air transportation and permits U.S. airlines to flourish, stimulating economic growth locally, nationally and internationally.

ATA and its member airlines recognize the importance of environmental protection. In the United States, ATA works with carriers on the vast array of environmental issues, including matters relating to climate change, local air quality, aircraft noise and water quality. Internationally, ATA and its members are active participants in ICAO’s Committee on Aviation Environmental Protection (CAEP), working through the airline industry’s official ICAO Observer organization, the International Air Transport Association (IATA).

Before turning to the specific questions in the consultation and the descriptions of the Draft Essential Requirements, ATA urges EASA to clearly articulate and embrace several fundamental principles that should apply in this (or any other) examination of ways to better integrate its statutory responsibilities across the European Union. We make this recommendation because several of the specific proposals in the Draft Essential Requirements suggest uncertainty as to EASA’s mission, priorities and relationship to other regulatory bodies.

• EASA should make clear that safety is always the agency’s primary objective. Though environmental protection is extremely important, it must never be pursued at the expense of air safety. The U.S. Federal Aviation Administration (FAA) observes this fundamental principle, stating its ambitious objectives for environmental improvement within the overriding context of safety. See, e.g., Report to Congress on Aviation and the Environment, 2004 at 1:7 (“… priority should be given to developing and implementing operational procedures for both noise and emissions reduction that satisfy safety requirements.”) • EASA should recognize and not attempt to encroach upon the environmental role of ICAO. ICAO has been effective in marshaling the expertise of the Members and Observers in CAEP to develop international consensus on the technological, environmental and economic reasonableness of engine standards for noise and emissions from aircraft engines. ICAO Member States have been

1 The members of ATA are: ABX Air, Inc.; AirTran Airways; Alaska Airlines, Inc.; American Airlines, Inc.; ASTAR Air Cargo, Inc.; Atlas Air, Inc.; Continental Airlines, Inc.; Delta Air Lines, Inc.; Evergreen International Airlines, Inc.; Federal Express Corporation.; Hawaiian Airlines; JetBlue Airways Corp.; Midwest Airlines; Northwest Airlines, Inc.; Southwest Airlines Co.; United Airlines, Inc.; UPS Airlines; and US Airways, Inc. Associate members are: Air Canada; Air Jamaica; and Mexicana.

able to adopt ICAO standards into national law with confidence that they have been thoroughly considered in ICAO, resulting in global harmonization across an inherently global market for engines and aircraft. ICAO experts also develop recommended practices and guidance on a wide range of operational and regulatory matters, which provide a common set of principles for States’ implementation in accordance with their individual circumstances. In the safety field, by contrast, ICAO plays a less comprehensive role, and national safety authorities often confer outside ICAO to achieve harmonized approaches. • EASA must recognize its regulatory authority is limited by the Chicago Convention. Under Article 1 of the Convention, which ensures States’ sovereignty over their own airspace, EASA may not regulate operational decisions, routing requirements and similar measures in a State’s airspace without its consent. Even if the 27 EU States grant EASA that centralized authority for wholly intra-EU flights, EASA may not exercise that authority for a flight while it is in the airspace of any other, non-consenting State. Under Article 12, ICAO has jurisdiction over the high seas, and ICAO guidance is the appropriate vehicle to address such issues. Both of these provisions would preclude any EASA initiative to regulate the flights of ATA air carriers from North America to and from EU destinations. • Any proposed regulatory measure must be described in terms precise enough to provide understandable guidance, and must be evaluated with full participation of all stakeholders to determine whether regulation is appropriate and, if so, how to achieve the least burdensome, most cost-effective approach. The NPA addresses a panoply of environmental issues, any of which would require a separate consultation for effective consideration of all relevant factors. Many of those issues, such as those related to local air quality, are within the legal purview of State authorities. In considering any of these issues, EASA should avoid any approach that would lead to overlapping and potentially conflicting regulatory structures, which would unnecessarily increase complexity and compliance burdens without affording greater environmental protections. As discussed below, most of the regulatory suggestions proffered in the NPA are so vague as to be incomprehensible and unenforceable.

ATA Responses to Questions:

Question 1: The Agency is interested in knowing whether stakeholders agree that ultra light aircraft, produced in an industrial manner, should be subject to common environmental rules?

The consultation document does not describe the nature of the supposed environmental problems emerging with ultra-light aircraft – noise, emissions from engines that are presumably too small to be covered by ICAO standards? If there are going to be engine standards or recommended practices relating to emissions for any type of aircraft, ICAO should be responsible for developing them in order to ensure continued global harmonization in aviation. Noise issues from any type of aircraft can be addressed under the ICAO Balanced Approach.

Question 2 a) The Agency is interested in knowing whether stakeholders agree that airport design and airport operations that are covered by safety regulation in the EASA system should also be regulated for their environmental impact through the EASA system

Environmental considerations in airport design and operation cover a broad range of issues – e.g., power generation, building design, power delivery to aircraft, air side vehicles, ground engine running, oil disposal, noise abatement. Each of these involves a discrete set of national regulatory issues and/or operator practices. The consultation does not identify inadequacies in current practices in any of these areas, but rather proposes consolidation as a goal in itself with no additional rationale. Some aspects of airport operation, however, should be developed with reference to the specific locality. For example, the ICAO Balanced Approach to Noise emphasizes the importance of analyzing the local noise problem and developing measures best tailored to address it. Any credible examination of this policy question would require extensive consultation among States and stakeholders.

b) The Agency is interested in knowing whether stakeholders agree that land use planning around aerodromes is better regulated at horizontal level, taking into account all sources of noise/pollution, rather than from an aviation perspective only.

The airline industry has long advocated considering aviation sources in context with all other sources of pollutants in assessing local air quality and deciding upon measures to address emissions, including land use planning. ATA advocates land use planning as an effective way to address aircraft noise, emissions, operational efficiency and safety, particularly where such measures can prevent encroachment of incompatible development in the vicinity of airports. Decisions regarding the appropriateness of land use measures should be made case by case, in light of specific local circumstances.

Question 3: The Agency is interested in knowing whether stakeholders consider that operating restrictions should be subject to common rules under the EASA system.

ATA emphatically believes it would be inappropriate to consider any standardized approach to operating restrictions other than the framework provided by the Balanced Approach to Noise adopted by ICAO. The Balanced Approach provides that each locality should assess its own noise problem and develop noise management measures tailored to local circumstances, among which operating restrictions should be the last resort.

Question 4: The Agency is interested to know whether stakeholders consider that the attached essential requirements meet the criteria described here above and whether they constitute a good basis for the regulation of aviation environmental protection within the envisaged scope of the extended EASA system. The Agency also welcomes any suggestion to improve the essential requirements.

ATA believes that the Draft Essential Requirements are unnecessarily and unacceptably intrusive, and in many cases would be inconsistent with ICAO’s role and/or in violation of the Chicago Convention. All of them are too vague to serve as anything other than the most basic starting points for any policy discussion. In separate comments filed on this NPA, IATA has enumerated a number of the vague terms found throughout the draft, and ATA agrees with these observations. Several proposals would improperly place regulatory responsibilities upon pilots rather than operators. We offer specific views about each of the proposals in the categories of “Air Operations” and “Operating restrictions,” which would apply directly to airlines, along with additional observations about the other categories.

• Air Operations o Section 4.a -- General Section 4.a.1 proposes an unreasonable extension of direct regulatory responsibility to the pilot in command for compliance with a vaguely defined range of “measures or procedures aimed at noise and emissions reduction,” including those not found in manuals. Airlines have comprehensive programs for fuel conservation, and train their pilots thoroughly about ways in which they can safely conserve fuel at every stage of ground and in-flight operations. They have equipped their fleets with in-flight software that automatically seeks the most fuel-efficient operating altitudes. They advise their pilots regarding compliance with airport-specific requirements such as continuous descent approaches and noise abatement procedures. Pilots already have the authority to execute these environmental measures, and any question from a regulatory authority about compliance with them should be directed to the airline. Furthermore, EASA and other regulatory authorities must recognize the primary importance of air safety; environmental regulations cannot supersede a pilot’s judgment in this area.

Section 4.a.2, proposing EASA restrictions on the carriage of hazardous materials, would conflict with ICAO’s harmonized global standards on the subject and should be withdrawn. ICAO’s Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO TI) build upon the principles governing the international transport of hazardous materials by air as set forth in Annex 18 to the Chicago Convention. The ICAO TI are based on the UN Recommendations on the Transport of Dangerous Goods and the International Atomic Energy Agency Regulations for the Safe Transport of Radioactive Material (TS-R-1 (ST-1, Revised). The ICAO Dangerous Goods Panel (DGP) is responsible for periodic updating of Annex 18 and the ICAO TI. Any EASA role should be through coordination with State participants in these bodies.

o Section 4.b – Flight preparation Section 4.b.1, read literally, would prohibit a flight of an ATA carrier from a US airport to be “commenced” unless some unspecified person/entity has ascertained “by every reasonable means available” that “adequate facilities” for operating the flight “in an environmentally compatible way” are available. The Chicago Convention prevents EASA from imposing any restriction on a flight commencing or operating outside EU airspace. Moreover, the proposed requirements are completely unintelligible and would be unenforceable under any circumstances.

Section 4.b.2 again proposes an unreasonable direct regulatory responsibility on a pilot for the presence of “appropriate” environmental certificates and equipage related to environmental performance. Airlines, not pilots, have the responsibility for placing required documentation in aircraft and/or manuals, in accordance with ICAO guidance and national laws, and for making the capital investment to install equipage. Airlines also have the responsibility to establish pre-flight check requirements for their maintenance staff and flight crews. The proposed requirement that pilots ensure that “aircraft operating limits related to environmental protection will not be exceeded at any time during the flight” is precluded by the Chicago Convention as applied to ATA carriers, too vague to be enforceable under any circumstances, and inappropriate as applied directly to pilots who must at all times be primarily responsible for flight safety.

Section 4.b.3 appears to propose a prohibition on operating any flight if weather conditions at any stage might require operating outside “restrictions imposed for environmental protection.” Operations in irregular weather conditions are a matter of flight safety, and are determined by air traffic authorities for all carriers in an affected area. The proposal is so vague that it could conceivable prelude operation of a flight that might have to be routed around a developing weather system, thus burning more fuel. This is completely unrealistic, and in any event would be precluded by the Chicago Convention as applied to any flight outside EU airspace.

o Section 4.c – Flight operation Section 4.c.1, requiring that aircraft be operated so as to “minimize as much as possible the impact of its noise, its emissions and any subsequent environmental impacts” is unintelligible and potentially contradictory. Some operations undertaken to minimize noise could increase emissions and vice versa. It would also be improper for EASA to look to this provision as a basis for regulating volumes of fuel carried by aircraft (p. 6, para. 27). Airlines have powerful economic incentives to minimize their use of fuel, and emissions are correspondingly minimized. Also, airlines make fueling decisions based on a range of safety considerations including operational factors, weather, and ATC issues, and authorize their pilots to make appropriate judgments for specific flights. The Chicago Convention would prohibit EASA regulation of any fueling done outside EU airspace, and of uplift of fuel and fuel quantities even within the EU for international flights.

Section 4.c.2 providing that a flight “must not be continued” unless “known conditions continue to be at least equivalent” to the requirements addressed in the sections on flight preparation (4.b) is unreasonable, unworkable and, taken to its logical extreme, could strangle commercial aviation, harming the public and both domestic and international commerce. Would it require a flight to land at the nearest airport rather than divert to fly around a weather system? Again, any such requirement would be unenforceable to ATA carriers outside EU airspace under the Chicago Convention.

o Section 4.d -- Aircraft operating limitations No additional regulation is needed to require that an aircraft be operated in accordance with its flight manual.

o Section 4.e --Instruments, data and equipment No additional regulation is needed to require that aircraft have the equipage to comply with the environmental regulations of the airports they serve.

o Section 4.f -- Continuing environmental compatibility No additional regulation is needed to provide for continued airworthiness of components affecting environmental performance. Maintenance of these components is generally addressed in maintenance manuals as part of overall airworthiness requirements. If EASA has concerns about whether existing airworthiness requirements are adequate to preserve the integrity and performance of components such as mufflers and acoustic liners, its most efficient recourse is to consult with State airworthiness authorities and seek review of any procedures found to be inadequate.

• Operating restrictions The proposal would make operating restrictions mandatory, “as a whole or locally,” in the event that other measures in the essential requirements do not sufficiently mitigate the effect of aviation on the environment or human health. The proposal does not state who would make that determination, or by what criteria. ATA strongly objects to any presumption in favor of operating restrictions, which should be considered only as a last resort and designed with reference to specific conditions.

The proposal mentions five types of potential limitations or prohibitions. None of the proposed measures is appropriate for EASA regulation. Measures pertaining to flights at certain altitudes or over certain areas are questions for air traffic authorities. Measures pertaining to flights of certain aircraft are a question for ICAO if the issue is a potential phase-out like the one applied to Chapter 2 aircraft. Measures pertaining to use of certain operational procedures are a question for air traffic authorities and/or local authorities, depending on the nature of the procedure in question. Measures pertaining to flights at certain times, e.g., curfews, are covered by the ICAO Balanced Approach to Noise, given effect in the EU under Directive 2002/30/EC, and are a question for local authorities in light of specific local circumstances.

• Product design, manufacture and maintenance In its explanation of the Essential Requirements 1.a-f, EASA simply recounts the basic technological considerations of aircraft and engine design, notes that these matters are currently addressed by ICAO Annex 16 standards, and concludes that the proposals are therefore in line with Annex 16. ATA disagrees with that conclusion. These draft requirements seek to require manufacturers to maximize all noise and emissions reductions, thus setting up potential regulatory requirements that would be impossible to meet under the laws of physics. In fact, manufacturers now devote enormous resources to developing technologies that minimize the inherent tradeoffs between competing environmental parameters (e.g., fuel burn and NOx emissions), and that meet the demands of their airline customers for more fuel efficient aircraft that also offer continuing improvement on noise and emissions. In the ICAO standard setting process, State and stakeholder experts devote enormous resources to the assessment of technological progress and tradeoffs, developing standards that capture the environmental benefits of continuing technological progress in the most cost-effective way. The ICAO standard setting process, with attendant goal-setting to guide further technological development, is a successful example of international harmonization in an extremely complex area, and EASA should withdraw consideration of any requirements that relate to aircraft or engine design. Rather, EASA should continue its current, productive role of participating in the work of ICAO CAEP.

Other proposed requirements in this section are unnecessary or simply incomprehensible. What are “design features or details that are particularly harmful to the environment” that EASA seeks to prohibit (1.g)? The proposals of 1.h-i would unnecessarily involve EASA in commercial issues relating to warranties and content of manuals. Proposals 1.j-k seek to hold not only designers and producers of any aviation product, but also those who maintain them – airlines -- to “have all means necessary to ensure compliance” of the product with the proposed EASA rules, and enlist other “relevant organizations” in such efforts. ATA cannot ascertain what this means, except that it would obviously impose unnecessary burdens upon airlines that already have every incentive to maintain their equipment to minimize fuel burn and emissions.

• Environmental awareness of persons active in the aviation system. Airlines and other aviation stakeholders already have Environmental Management Systems (EMS), some certified under ISO 14001, which are designed to integrate environmental considerations into every aspect of the organization, and to provide each employee with an understanding of environmental considerations pertinent to his/her role.

• Aerodromes

With respect to design and operational measures taken to address noise, EASA’s proposed requirements would again undermine a role accorded to State and local authorities under the ICAO Balanced Approach to Noise, as applied in EU States under Directive 2002/30/EC. Those parties are best able to consider measures appropriate for local conditions.

Design and operational measures taken to address emissions from aircraft and other airport sources are governed by national laws, which are applied as appropriate for air quality conditions in areas that include airports. These localized air quality assessments do not lend themselves to generalized measures of the type that EASA contemplates. Also, ICAO is in the process of developing guidance for use by local authorities in assessing air quality in the vicinity of airports. ICAO’s Airport Air Quality Guidance Manual, Doc. 9889 (2007) contains detailed guidance on emission inventories for aircraft and airport sources, and future chapters will address dispersion modeling and mitigation measures.

Section 2.1 is another unintelligible, unenforceable prohibition of any activity that would “constitute or create any particular unacceptable risk for, or damage to, the environment.” The explanatory notes indicate that this is meant to create a legal basis for measures to prevent specific actions such as location of engine run-up facilities near housing or operational practices involving contaminating fuel or oil discharges. There are specific national laws that govern such issues, and EASA should not attempt to establish a platform to enable it to insert itself into the resolution of them.

• Air traffic management and air navigation services Immediate completion of the Single European Sky and SESAR would provide a tremendous improvement in airline fuel efficiency. This would enable air traffic service providers to minimize unnecessary fuel burn and attendant emissions with direct routing. ATA encourages EASA to engage with EUROCONTROL to facilitate completion of this project. Any issues relating to avionics and equipage of aircraft could involve significant costs for airlines, and would need to be discussed in detail with stakeholders.

Question 5: The Agency is interested to know whether stakeholders agree that powers should be given to assessment bodies to verify that aircraft below 2000 kg comply with the environmental requirements and to issue the related approvals. Conversely do stakeholders agree that accreditation of such assessment bodies should be done by the Agency

ATA members do not operate aircraft in this category. ATA notes, however, that the demands placed on the air traffic system and airports by these aircraft can decrease the efficiency of commercial traffic, and this issue should be considered in the context of the Single European Sky.

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13 November 2008