Also going against the airlines are most European carriers, like British Airways and Air France, which have been living with the system already governing intra-European flights since January of this year, and have a clear interest in a more level playing field. Tim Johnson, director of the London-based Aviation and Environment Federation, another of the environmental groups supporting the EU, comments, "They want American carriers in the scheme so there will be no competitive disadvantage."
The battle lines are already being drawn. Sitting in the courtroom during oral arguments at the court last July were representatives from the United States, China and India, all of which have threatened retaliatory measures if the airlines lose. Over the same week of September 26th, when the EU announced its free emission allocations to the world's airlines-- United, American and Continental among them--representatives of the U.S. State Department and FAA were holding a meeting in Delhi with their Indian counterparts to develop a united front opposing the EU's initiative. Thus far, some twenty countries, including Brazil, Canada, Korea, Russia, South Africa, Saudi Arabia, Qatar, the Philippines and Paraguay have indicated they'd sign on to the U.S.-India coalition.
Meanwhile, in July, the U.S. House of Representatives passed a measure authored by Republican John Mica, Chair of the Transportation Committee, that would specifically prohibit U.S. carriers from complying with the EU's initiative--which, if passed by the Senate, would provide U.S. carriers with a no-win option of either complying with American or European law, but not both.
"If the airlines go to the mat on this," comments Gabriel Sanchez, a Senior Research Fellow at the International Aviation Law Institute at De Paul University in Chicago, "there's no longer going to be a 'law'-war, there's going to be a trade war."
WHO OWNS THE SKIES?
The airlines and the Obama administration assert that the proper place to apply airline greenhouse gas limits is at the UN's International Civil Aviation Organization, assigned responsibility for the issue by the Kyoto Protocol. The EU and its allies counter that its efforts to do so over the past decade have been repeatedly foiled by U.S. and industry pressure.
"Over and over, the U.S. has blocked efforts on emission limits at the International Civil Aviation Organization," says Annie Petsonk, who has participated with the legal defense of the EU as international counsel to the Environmental Defense Fund. "And the ICAO did essentially nothing. The EU got fed up with getting nowhere and said, 'Okay we're going to start to regulate'."
The airlines now accuse Europe of trying to act as the airspace regulator of the entire world. At the Luxemburg court, the American carrier's lawyer conjured a hypothetical flight from San Francisco to London's Heathrow airport, the most popular destination for Europe-bound flights from the United States. Over the course of the flight, he told the court, 29% of the emissions take place in U.S. airspace; 37% in Canadian airspace; another 25% over the high seas; and just 9% in the airspace of Europe.