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Environmentalal Issues, FAA Design Approval, Manufacturing

Will the New Energy Legislation Affect Aviation?

The US House of Representatives has promulgated sweeping new energy legislation that would affect aircraft and their emissions.

The House bill is known as H.R. 2454.  It was passed in the House on June 26, 2009.  The next step is for the legislation to be taken up by the Senate.

The House legislation includes new standards for aircraft engines:

(c) Aircraft and Aircraft Engines-

`(1) Pursuant to section 231(a), the Administrator shall promulgate standards applicable to emissions of greenhouse gases from new aircraft and new engines used in aircraft by December 31, 2012. Notwithstanding any requirement in section 231(a), the Administrator, in consultation with the Administrator of the Federal Aviation Administration, shall also promulgate standards applicable to emissions of greenhouse gases from other classes and categories of aircraft and aircraft engines for such classes and categories as the Administrator determines appropriate and in the timeframe the Administrator determines appropriate. The Administrator may revise these standards from time to time.

`(2) Standards under section 231(a) applicable to emissions of greenhouse gases from new aircraft and new engines used in aircraft, and any later revisions or additional standards, shall achieve the greatest degree of emissions reduction achievable based on the application of technology which the Administrator determines will be available at the time such standards take effect, taking into consideration cost, energy, and safety factors associated with the application of such technology. Any such standards shall take effect after such period as the Administrator finds necessary to permit the development and application of the requisite technology.

The EPA would be required to promulgate new emissions standards for aircraft engines. These new standards would apply to new aircraft and also to new engines as of December 31, 2012. The legislation also requires the EPA to promulgate new emissions standards for all aircraft engines (including existing engines), without any particular time limit on when those standards would apply.

The word “notwithstanding” in this legislation is important. Under the current law, the EPA already has the power to set emissions standards for aircraft engines; but the existing law requires the EPA to make a finding that the class of engines affected “causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” This means that under current law, the EPA may not impose emissions standards on engines that do not have an appreciable affect on public health or welfare. The limits of the existing law also forbid the EPA from changing “the aircraft engine emission standards if such change would significantly increase noise and adversely affect safety.” By imposing the new power to regulate engines “notwithstanding any requirement in section 231(a),” the new legislation would permit EPA to impose new emissions standards even if those standards would require engines to increase in their noise or if the changes would adversely affect safety.

The new aircraft standards are required to “achieve the greatest degree of emissions reduction achievable based on the application of technology which the Administrator determines will be available at the time such standards take effect, taking into consideration cost, energy, and safety factors associated with the application of such technology.” This gives the EPA the mandate to push the emissions standards to the limits.  Politically, many people have always viewed the aviation community as a rich potential source for emissions reduction, despite the fact that the aviation community has already achieved significant emissions reductions on its own.

While the current legislation forbids the emission standards from adversely affecting noise and safety, the new standard would only need to take those factors into consideration, but after taking them in to consideration, the EPA would be permitted to make the decision that the trade-off was acceptable.

In fact, if the EPA were to impose a new standard that affirmatively jeopardized air safety, the way to fight it would be to apply to the Secretary of Transportation for a finding that the EPA standard jeopardized safety, and then apply to the White House for a Presidential Order overturning the standards. The FAA would have NO independent power to avoid these standards for safety reasons.

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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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