Wed 28 Nov 2018 – The EU Council has agreed a common position on a response to ICAO over the “filing of differences” by EU States with CORSIA regulations adopted by the ICAO governing Council in June. ICAO Member States are required before the end of this week (Dec 1) to notify the UN body if their national regulations or practices do not conform with the CORSIA Standards and Recommended Practices (SARPs). Although the filing is essentially a legal process concerning MRV regulations, influential members of the European Parliament and environmental groups are pressing EU States to protect the future of the Aviation EU ETS in their filings. The airline industry and third countries such as the United States, on the other hand, are calling for the full replacement of the EU ETS with the ICAO global carbon offsetting scheme for international aviation.
Under Article 38 of the Chicago Convention that governs international civil aviation, States must notify ICAO if they do not comply with a Standard in all respects; do not bring its regulations or practices into full accord with any Standard; or adopt regulations or practices differing in any particular respect from the Standard. Such a notification is called a “filing of differences”.
In a State Letter sent out with the SARPs in July, governments were asked to inform ICAO before October 22, the date on which the SARPs became effective, if they disapproved of any part of the SARPs. It is believed no State registered a disapproval. The second deadline requires States to inform ICAO before December 1 of any differences that will exist on 1 January 2019 – when CORSIA monitoring, reporting and verification (MRV) requirements related to CO2 emissions from international flights come into effect – between their national regulations or practices and the SARPs, and also the dates by which the State will have complied with the SARPs’ provisions.
Because the EU has in place legislation (Directive 2003/87/EC and subsequent amendments) that underpins the inclusion of aviation within the EU Emissions Trading System (EU ETS), there are incompatibilities and differences with the CORSIA SARPs in respect of MRV and offsetting requirements. Article 15(3) of the EU-US Open Skies Agreement also stipulates that ICAO Standards shall be followed except where differences have been notified.
According to a European Commission official, the notification of differences can maintain the legality of existing law without expressing any disapproval with the SARPs.
“States have to take certain actions of notification which have been expressly requested by the State letter and doing so will prevent any legal risk to EU law,” he told GreenAir. “At the same time, in parallel, the amendments to the EU monitoring rules for the ICAO scheme are well underway, the first two acts are published and the third one is also about be published. There’s then going to be a legislative process at some point in the future involving the European Parliament and Council, and the terms of this review are set out in the 2017 aviation EU ETS amendment in Article 28b.”
The third element he is referring to is a so-called ‘delegated act’ that the Commission is planning to have in place by early 2019. This is secondary legislation allowed for in the primary legislation (i.e. the EU ETS Directive) and provides for a four-week public information period and allows the Council and Parliament two months to come up with any objections. If they do not, the delegated act enters into force.
The act, published today, sets out additional verified emissions information that airlines should report for mandatory compliance under CORSIA SARPs MRV rules. It will also impose an obligation on the Commission to transmit relevant verified emissions data to the ICAO Secretariat.
Differences of another kind emerged at an ‘exchange of views’ meeting last week between MEPs on the European Parliament’s environment committee (ENVI) and the EU Transport Commissioner, Violeta Bulc, on CORSIA developments at ICAO. This was the first meeting since the Parliament adopted a climate resolution in October that “Expresses concern about the level of ambition of ICAO’s CORSIA, given the ongoing work on the SARPs meant to implement the scheme from 2019; strongly opposes the efforts to impose CORSIA on flights within Europe, overriding EU laws and independence in decision-making; stresses that further dilution of the draft CORSIA SARPs is unacceptable; [and] calls on the Commission and the Member States to do their utmost in strengthening CORSIA’s provisions and hence its future impact.”
The resolution also called on EU States to submit a formal reservation with respect to the SARPs, “stating that the implementation of CORSIA and participation in its voluntary phases require the prior agreement of the Council and the European Parliament.”
Bulc told the ENVI MEPs that the global consensus on CORSIA remained fragile. “In June I took part in discussions in ICAO and I can assure you that many countries remain reluctant to commit to a measure they perceive as a threat to their sovereignty and a hurdle to the development of their aviation industry,” she said. “The EU must continue to signal its intention to participate in CORSIA to generate momentum for implementation. Any reservation about CORSIA could jeopardise the whole multilateral process and progress made so far. That is why we are leading by example and already implementing the CORSIA MRV [regulations] this year.
“Discussions are still ongoing with respect to eligible offsets and the sustainability criteria for eligible fuels. What influence would the EU have if it withdrew its support for CORSIA? The best way to improve CORSIA is to continue influencing its design within ICAO.
“The Commission’s proposal for the Union position to be taken by Member States in reply to the CORSIA State Letter is fully in line with the provisions of the EU ETS Directive. It is a fact that certain differences currently exist between CORSIA and the ETS – we don’t hide that. That is why that when all the CORSIA’s instruments are adopted by ICAO, the Commission will carry out an assessment of the scheme and present a report to co-legislators. The EU will decide on the basis of that report how to implement CORSIA and what rules should apply on flights within the EEA.”
However, Bulc’s assurances failed to mollify the MEPs, who fear the lack of a strong EU response to the State Letter risks losing the right to continue with the EU ETS once CORSIA starts and having to accept as yet undetermined criteria on emissions units and alternative fuels. They also criticised the Commission for not consulting with Parliament over the response to the State Letter.
“That isn’t good enough,” admonished a former Parliament rapporteur on the Aviation EU ETS, Peter Liese. “We in Parliament believe CORSIA is very weak and only about 20% of it is aligned with what we want. We’re in favour of it as a beginning and an initial step but it’s not acceptable if our rights as EU legislators for the EU ETS are limited.
“I would urge you to tell EU Member States that we need more measures on CORSIA if we are to deliver on our Paris commitments. If EU States are able to decide whatever they want on the EU ETS then we have an EU institutional crisis on our hands. You can’t just ignore the Parliament and that has to be understood.”
Bulc responded: “I am personally convinced that we can find ways to combine CORSIA and the EU ETS in a way that is consistent with EU commitments under the Paris Agreement, and does not jeopardise ICAO’s efforts in favour of a global solution.”
Another former EU ETS rapporteur, Julie Girling, told the Commissioner: “Our Paris commitments cannot be delivered by CORSIA. I am confused where you think CORSIA is actually going to take us. I don’t understand how we can be in a position where you could recommend that we don’t file a reservation by December 1, when by not doing so binds us in to accepting CORSIA’s environmental measures and not allowing us to do anything further.
“We recently had a trip to China and they laughed at us when we mentioned CORSIA and they said ‘we’re not doing anything’. At an event I was at in London recently, airlines made it absolutely clear it was their intention to make sure the EU changes its position over the EU ETS. It is essential we do not do so.”
Bulc warned against such statements on China and hoped it will still join the first volunteer phase in 2021 and was optimistic India might still participate from the start. “I am in favour of dialogue and persuasion with countries that are growing their aviation activities fast, such as China and India,” she added.
“We will not commit [to CORSIA] at any price but if there is a hope we can get a solid agreement on a global scale then this will contribute to climate change action by far more than just the EU ETS on its own.
“I will be very straightforward: I am against filing a reservation. I am for stating the differences at the ICAO level and making sure they understand under which conditions we are entering this deal. But if the EU shows weakness and is not leading the way, then it is quite likely this will not happen.”
Wrapping up the debate with the MEPs, Bulc said: “Because of the possibility of legal challenges we focused on differences rather than reservations, and to point out these differences and to bring together the EU ETS and CORSIA. Whatever we agree won’t come into force before 2021. That gives us enough time to do a thorough impact assessment and analysis of the full CORSIA scheme, which, of course, we don’t yet exactly know what it is going to be. But we will continue to negotiate and hopefully in March we will know. Once this is adopted then we can do the analysis and then report back to the Parliament and Council.
“We need to have an ambitious deal in order to deliver concrete results, but let’s give the global deal a chance. That’s what I am asking you for.”
Whether all EU States will follow the Council’s template if and when notifying ICAO of differences in their regulations and practices is not yet clear.
In a letter to Brussels-based NGO Transport & Environment in October, the UK’s Aviation Minister, Baroness Sugg, said the UK would not be filing a “general difference” against the CORSIA SARPs. “The EU filing a general difference against the CORSIA SARP could jeopardise the implementation of CORSIA and threaten the progress made over the last few years,” she said. The letter did not explicitly rule out the UK following the EU common position in notifying ICAO of differences over MRV regulations covering the EU ETS and the new CORSIA SARPs.
The MEPs’ call for EU States to file a “reservation” also does not apply in the context of ICAO SARPs as reservations are generally filed by States when notifying ICAO of disagreements with elements of an adopted Assembly resolution.
However, Annie Petsonk, International Counsel with the Environmental Defense Fund, points out in a GreenAirCommentary article published this week, that the situation with the CORSIA SARPs is unusual in that States are being asked to implement them where blank spaces exist around the all-important eligibility rules on emissions units and alternative fuels.
The State Letter asks States to notify ICAO of any differences with the whole of the SARPs, she writes. “What can governments do when the ‘whole’ doesn’t exist?” she asks. “Some might just not respond. Others might say they’ll enforce the CORSIA’s emissions reporting, but won’t regulate emissions units and fuels until the blanks are filled in. And some, like EU Member States, may have to wait until the ‘whole’ is complete, as legislation obligates the European Commission and Parliament to assess the whole before enacting new regulations.”
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