TRACKING THE SKIES: AN AIRLINE-BASED SYSTEM FOR LIMITING GREENHOUSE GAS EMISSIONS FROM INTERNATIONAL CIVIL AVIATION by Allen Pei-Jan Tsai∗ and Annie Petsonk∗∗ In the past decade, two major international agreements have been reached to curb emissions of greenhouse gases (“GHGs”). One substantial source of GHG emissions, however, has not yet been subject to limits: the international civil aviation sector. In June 1999, a Special Report of the Intergovernmental Panel on Climate Change described emissions of GHGs and other gases from the aviation sector and reviewed scenarios for growth in air transport and emissions. While the report spurred an intense dialogue among scientists, industry, governments, and environmentalists about the nature and extent of measures needed to limit emissions from international civil aviation, no plan has been established yet to limit these emissions. Action is needed. Rapid growth in air travel is likely to increase significantly the GHG burden civil aviation places on the atmosphere. This Article examines options for controlling GHG emissions from civil aviation; specifically, it explores methods for tracking, reporting, and limiting GHG emissions from international civil aviation. It recommends a system that establishes legally binding limits on total international civil aviation emissions from industrialized nations; sets those emissions caps at levels comparable to those already agreed upon by industrialized nations for other GHG emissions under the Kyoto Protocol; allocates GHG emissions allowances to air carriers for this time period; and affords carriers the flexibility to undertake emissions trading, providing market-based incentives for cost-effectively limiting and reducing GHG emissions in this important economic sector. The Article urges that the system be devised and adopted by 2001. In the event nations do not reach an agreement, they may impose a potentially disparate system of emissions charges and aviation fuel taxes. ∗ Mr. Tsai served as Climate Change Policy Intern at the Washington, D.C. office of Environmental Defense in 1999. ∗∗ Ms. Petsonk is the International Counsel for Environmental Defense in Washington, D.C. Ms. Petsonk wishes to thank the many reviewers, as well as Mr. Abheshek Narain, Environmental Defense intern, for his help on this Article. The views presented here, and any errors, are solely those of the authors. 762 The Environmental Lawyer [Vol.6 CONTENTS I. Introduction .............................764 II. Aviation and Global Warming .................766 A. Why Nations Must Act ....................766 B. The Intergovernmental Panel on Climate Change Special Report on Aviation and the Global Atmosphere ...........................767 III. The International Law Context ................772 A. Agreements, Organizations, and Entities Involved in International Civil Aviation .................772 1. The 1992 United Nations Framework Convention on Climate Change ...........773 2. The Kyoto Protocol on Climate Change .....773 3. The Chicago Convention and the International Civil Aviation Organization .............776 4. The International Air Transport Association ..778 5. Airports ..........................779 B. The Legal Context .......................780 IV. Proposed System to Limit Emissions from the International Civil Aviation Se ctor ..............781 A. Emissions Covered and Level of Commitment ....782 B. Institutions for Implementing a Cap-and-Trade System for the International Civil Aviation Sector ..784 C. Sources Covered: What Constitutes “International Civil Aviation” for Annex 1 Parties? ...........784 1. “International Civil Aviation” ............785 2. Annex 1 Parties .....................786 3. Article 4 Agreements: A Special Case ......787 D. Choice of Policy Instrument and Point of Applic ation ..........................789 1. Choice of Policy Instrument .............789 2. Point of Applic ation ..................792 No. 3] Curbing International Aviation GHGs 763 E. Establishing a Legal Structure for a Carrier-Based System ....................794 F. Verification and Compliance of IATA Carriers ....797 G. Making the Trading System Operational ........798 H. Encouraging Participation in a Cap-and-Trade Civil Aviation Emissions System .............800 1. Members of the UNFCCC, Nonmembers of ICAO ..........................800 2. Members of ICAO, Nonmembers of the UNFCCC .....................801 3. Nonmembers of ICAO and the UNFCCC ....802 V. Options to Consider if an Agreement on a Cap-and-Trade System Cannot Be Reached by 2001 .............804 VI. Conclusion ..............................806 Table 1. GHGs Emitted from Aviation Compared with GHGs Covered by the Kyoto Protocol ........783 Table 2. UNFCCC Nations That Do Not Belong to ICAO .801 Table 3. ICAO Contracting States That Are Not .......802 UNFCCC Parties Table 4. Membership in the ICAO Council and Annex B of the Kyoto Protocol ..................803 764 The Environmental Lawyer [Vol.6 I. INTRODUCTION In 1995, scientists found that the balance of evidence suggests that human activities are having a “discernible influence on global climate.”1 Greenhouse gases (“GHGs”)—carbon dioxide (CO2), methane (CH4), and other compounds—released by burning coal and oil to produce electricity, drive cars, fly airplanes, power ships, and grow food, are building up in the atmosphere, where they warm Earth by trapping heat that would otherwise radiate into space.2 GHGs emitted today will affect Earth’s climate for centuries. CO2, for example, remains in the atmosphere for one hundred years or more.3 In the past century, the Earth already has warmed about 0.5 degrees Celsius (°C).4 Sea levels are rising, glaciers are retreating, and much of the United States and other nations have experienced above-normal temperatures and more intense rain and snow storms.5 Scientists link these changes at least in part to anthropogenic GHG emissions.6 Unchecked, these GHG emissions will subject societies to a vast and potentially dangerous experiment: a world warmer, and warming faster, than at any time in the past ten thousand years. Continued climate change could expand the extent of tropical diseases, cause more severe storms and coastal flooding, reduce agricultural productivity in vulnerable regions, and threaten the survival of many plants and animals.7 In drought-prone regions, economically critical water supplies will be altered.8 In other regions, coastal real estate and treasured forests will be damaged.9 If emissions curbs do not begin to take effect 1 Intergovernmental Panel on Climate Change (IPCC), IPCC Second Assessment Report: Climate Change 1995, Summary for Policymakers 22 (1995) (visited June 1, 2000) <http://www.ipcc.ch/pub/reports.htm>. 2 See IPCC, WORKING GROUP I, CLIMATE CHANGE 1995: THE SCIENCE OF CLIMATE CHANGE 3 (SECOND ASSESSMENT REPORT) (J.T. Houghton et al. eds., 1995) [hereinafter IPCC SAR WORKING GROUP 1 REPORT]. 3 See id. at 15–16. 4 See id. at 13. 5 See id. at 4–6. 6 See id. at 5. 7 See id. at 7. 8 See IPCC, WORKING GROUP II, CLIMATE CHANGE 1995: IMPACTS, ADAPTATIONS AND MITIGATION OF CLIMATE CHANGE: SCIENTIFIC-TECHNICAL ANALYSES 155–56 (Robert T. Watson, et al. eds., 1996) [hereinafter IPCC SAR WORKING GROUP 2 REPORT]. 9 See id. at 97–98. No. 3] Curbing International Aviation GHGs 765 soon, it may not be possible to prevent what many scientists believe will be a dangerous climate change.10 While steps have been taken, certain GHG-emitting sectors have been overlooked. Although the 1992 United Nations Framework Convention on Climate Change11 (“UNFCCC,” “Framework Convention,” or “Rio Treaty”) requires governments to report national GHG emissions,12 the Framework Convention does not specify any requirements for reporting international emissions from aviation and maritime transport. The 1997 Kyoto Protocol on Climate Change13 contains legally binding obligations for certain industrialized nations to reduce GHG emissions for the 2008 to 2012 period to approximately five percent below reported 1990 levels.14 Although the Kyoto Protocol has been adopted, it has yet to be ratified, and participating governments have not yet agreed on whether and how these emissions limits will apply to international aviation and maritime transport emissions.15 Currently, governments report GHG emissions from international civil aviation16 separately,17 and no agreed formula for allocating responsibility for these emissions exists.18 If this situation is not addressed effectively, the result will be that after an aircraft or ship has 10 See Letter from Harold Mooney, Professor, Stanford University, et al., to President William Clinton (May 21, 1997) (warning the President that warming of greater than one degree Celsius over the next 100 years could trigger dangerous interference in the climate system) (copy on file with The Environmental Lawyer) [hereinafter Harold Mooney Letter]. 11 Framework Convention on Climate Change, U.N. Conference on Environment and Development, May 9, 1992, 31 I.L.M. 849 [hereinafter UNFCCC, Framework Convention, or “Rio Treaty”]. 12 See id. art. 4. 13 See Conference of the Parties (COP) to the UNFCCC: Kyoto Protocol, Dec. 10, 1997, 37 I.L.M. 22 (1997) [hereinafter Kyoto Protocol]. 14 See id. art. 3.1. 15 See IPCC, AVIATION AND T HE GLOBAL ATMOSPHERE 338 (Joyce E. Penner et al., eds., 1999) [hereinafter IPCC SPECIAL REPORT]. 16 In this paper, the term “international civil aviation” is used to refer to all non-domestic aviation emissions associated with parties listed in Annex 1 of the UNFCCC;