On July 25, 2016, the U.S. Environmental Protection Agency (EPA) issued a final rule (in prepublication form) finding that greenhouse gases from aircraft contribute to air pollution that endangers public health and welfare. EPA’s final action does not regulate greenhouse gas emissions from aircraft itself, but an endangerment finding is the prerequisite for regulating in the future and triggers EPA’s duty to regulate such emissions.  According to EPA, U.S. aircraft account for 12 percent of greenhouse gas emissions from the transportation sector in the U.S. and 29% of all global aircraft greenhouse gas emissions. Aircraft emissions have long been the focus of environmental groups seeking to address greenhouse gases that cause climate change.

EPA’s authority to regulate aircraft greenhouse gas emissions comes from Section 231 of the Clean Air Act.   EPA coordinates its regulation of aircraft emissions with the Federal Aviation Administration and the International Civil Aviation Organization’s (ICAO) Committee on Aviation Environmental Protection. ICAO has proposed for formal adoption international standards for carbon dioxide emissions from aircraft engines with expected approval by the ICAO General Assembly in October 2016 and adoption in March 2017.  The issuance of the endangerment finding allows EPA to be in a position to expeditiously adopt standards for aircraft engines that are of at least equivalent stringency to those set by ICAO.  A global carbon offsetting scheme, known as the market-based measure, is also set for consideration at the upcoming General Assembly. The carbon dioxide standards and the market-based measure will help the industry meet its goals for carbon-neutral growth from 2020 and for a 50% reduction in carbon dioxide emissions by 2050.

The aircraft endangerment finding relies heavily on the scientific and technical analysis supporting EPA’s 2009 endangerment finding that new motor vehicles cause or contribute to pollution that causes climate change endangering public health welfare. The 2009 endangerment finding was legally challenged and ultimately upheld by the Supreme Court—precedent that would likely be raised by EPA in the event the aircraft endangerment finding is similarly challenged.

The rule was issued in prepublication form on July 25, 2016. The rule’s effective date is 30 days after its publication in the Federal Register, which has not yet occurred. Challenges to the rule must be brought in the U.S. Court of Appeals for the District of Columbia within 60 days of publication in the Federal Register.  Future greenhouse gas emission standards for aircraft would be subject to an additional notice-and-comment rulemaking process.


Marisa Martin is a senior associate in the Firm’s Global Climate Change and Environmental Markets Practice Group based in Chicago. Ms. Martin advises multinational companies, project sponsors and investors in connection with all aspects of environmental and carbon regulatory developments in the U.S. and internationally. She also advises on the full spectrum of transactional activities underpinned by the emerging environmental markets globally with a special focus on renewables, avoided deforestation/REDD+ and the California carbon market. Ms. Martin is a Vice-Chair for the American Bar Association’s Climate Change, Sustainable Development and Ecosystem Committee. She was named “Associate to Watch” in Climate Change by Chambers USA. She is licensed to practice in California and Illinois.