The Air Transport Association of America (ATA) has asked the European Court of Justice (ECJ) to dismiss the European Union’s application of an Emissions Trading Scheme, calling it illegal. The ATA says that aviation greenhouse gas (GHG) emissions should be regulated on a global sectoral basis, and unilateral action by any country or group of countries violates international law.

“ATA challenges EU ETS because it is a unilateral measure, which has not been agreed by countries outside the EU, yet nevertheless applies EU law to third country carriers in third country airspace," the group said to in its testimony. It said that the EU is violating customary international law and several treaty provisions in the Convention on International Civil Aviation (commonly referred to as the "Chicago Convention"), which dictates that countries have sovereignty over the airlines in their own airspace. As proposed, the EU ETS provisions would regulate an entire flight from across the United States to the EU, even though the flight would be in EU airspace for only a tiny fraction of the journey.

The ATA said the levies imposed by the scheme violate provisions of the Chicago Convention and U.S.-EU bilateral air services agreement and the Kyoto Protocol, which confirms that International Civil Aviation Organization (ICAO) has the authority to establish greenhouse gas policy for international aviation.

The ATA reaffirmed that its members are committed to continuing their strong record of fuel efficiency and GHG emissions savings. The airline industry advocates for a single, global sectoral approach to be managed by ICAO, which stipulates that the aviation industry achieve a 1.5 percent average annual improvement in carbon and fuel efficiency through 2020, carbon-neutral growth from 2020, subject to critical government infrastructure and technology investments such as air traffic control modernization, and an aspirational 50 percent reduction in CO2 emissions by 2050, relative to 2005 levels. 

In October 2010, ICAO adopted a resolution with targets and principles broadly consistent with the industry's global sectoral approach, demonstrating that the industry and governments are coalescing around a common platform for addressing aviation CO2 emissions at the global level.

As proposed, the EU ETS limits airlines' ability to have capital to invest in ventures to develop alternative fuels, new fuel-efficient aircraft or equipment needed to operate in a satellite-based air traffic control system.

The high court is expected to issue a ruling by the end of 2011 or early 2012.