By Mary Ellen Ternes
On October 6, 2011, in response to a challenge led by the Air Transport Association of America (ATA) (Case C-366/10), the advocate general of the European Court of Justice, Julian Kokott, issued a preliminary finding that the European Union's Emission Trading System (ETS), specifically Directive 2008/101/EC, imposing carbon dioxide emissions caps on international airlines “is compatible with all the provisions and principles of public international law referred to in the request for preliminary ruling,” including the 1944 Convention on International Civil Aviation (Chicago Convention), the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), and the 2007 Air Transport Agreement (Open Skies Agreement). While not a final ruling of the European Court of Justice, its 13-member judges are expected to give weight to AG Kokott’s opinion. On October 24, the U.S. House of Representatives passed a bill that would exclude U.S. airlines from the EU ETS. In response, on October 25, the EU announced its resolution to enforce the ETS emission limits on U.S. airlines flying to and from the EU. The ETS forces airlines to participate in the cap-and-trade program and reduce emissions, whether through reducing fuel use, utilizing cleaner fuel, or paying for their emissions. U.S. airlines flying to and from the EU would be subject to the program once it goes into effect on January 1, 2012.