By: Barbara Lichman, PhD

Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions.  See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.

Friends of the Earth and Center for Biological Diversity then filed suit, asserting violation of Section 231, to which EPA responded that Section 231 imposes no legal obligation to proceed with an “Endangerment Finding.”  The court disagreed, holding that EPA’s duty is, in fact, compulsory. Center for Biological Diversity v. EPA, 794 F.Supp.2d 151, 162 (D.D.C. 2011).

In June, 2012, EPA responded that it would begin work on the Finding within the court ordered period of 90 days after the United States Court of Appeals for the District of Columbia Circuit ruled on the validity of EPA’s 2009 “Endangerment Finding on Greenhouse Gas Emissions from New Motor Vehicles.”  EPA further committed that the process, involving development of the Finding, publishing and taking comments would take about 22 months.

Even though the D.C. Circuit had ruled on the EPA’s Endangerment Finding for Greenhouse Gas Emissions from New Motor Vehicles on or about June 26, 2012, more than two years later, EPA had not taken even the preliminary step of issuing a draft Endangerment Finding for aircraft emissions (or of reaffirming that another Endangerment Finding for greenhouse gases is unnecessary, as EPA has repeatedly done in connection with greenhouse gases from other sources).

Petitioners claim to consider action by EPA urgent, on the asserted grounds that United States domestic aviation may have accounted for about 3% of total United States greenhouse gas emissions in 2005, and, by 2006, was “viewed as the fastest growing source of carbon dioxide emissions worldwide, increasing at a rate of nearly 5% per year.”

Impatient with further delay, after more than 6 years of delay since the original Petition, the Petitioners have given notice to EPA pursuant to CAA § 7604 (also referred to as “Section 304”) which provides, in pertinent party, that “[t]he district courts of the United States shall have jurisdiction to compel . . . agency action unreasonably delayed,” and requires that any person intending to file a legal action against EPA for unreasonable delay must provide notice of his or her intention to sue 180 days before commencing such action.  See also, 40 C.F.R. § 54.  Therefore, Petitioners have put EPA on notice that by on or about February 1, 2015, 180 days after the date of their letter, they intend to enforce EPA’s obligation either through litigation, or through resolution.

Petitioners do not, however, touch upon the full panoply of impacts EPA’s issuance of a new rule governing emissions from aircraft engines will have, not only on those who are exposed to greenhouse gas emissions, but also upon those who will suffer the economic impacts of adapting to new restrictions, such as aircraft engine manufacturers and aircraft operators.  The proverbial “jury” is still out as to the way in which those interests will be balanced in EPA’s rulemaking process.