Air Law & Sustainability

On Monday 15 November 2021, Steven Truxal, Leiden’s incoming Professor of air and space law, asked the audience at his inaugural lecture[1] whether or not “…aviation [was] on a one-way journey or a round trip?” This was the cryptic introduction into his analysis of governmental intervention into aviation sustainability. Adrian Young, safety and legal expert at To70, was there and reports on Professor Truxal’s answer.

Starting with a review of the history of aviation regulation up to 1992, by which time both the US and European aviation markets had been de-regulated, Professor Truxal noted examples of how innovation in air transport had been stifled by over-tight governmental regulation. The actions of the Civil Aeronautics Board (CAB) in the US, for example, removed, he opined, incentives to innovate, to the detriment of both the airline companies and the passengers.

Whilst the trend has been towards a full deregulation of international civil aviation, there are areas where governmental intervention is noticeable. Consumer protection is one of these areas and EU 261/2004 on delayed or cancelled flights, overbooking or denied boarding was noted as an intervention that the European Commission saw as necessary to protect consumers – airline passengers – from the behaviour of the airlines. More recently, there have been European and global initiatives to try and help make the airline industry more sustainable in the form of the EU’s Emissions Trading Scheme (ETS) and ICAO’s Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

Such initiatives were – despite grumbling in the industry – accepted and interventions have, in the last two decades, remained minor. That is with the exception of two crises; the 2008 economic crisis and COVID-19. Following the latter event, described by Prof. Truxal as a “disruptor”, governments poured money into airlines, loosening years of strict rules on state aid. There appears to be a synergy between the economic impact of the COVID-19 crises and the need to stimulate sustainable development in aviation. The Austrian government has already amended its competition requirements to include the ecological sustainability and climate neutrality as a permissible exemption in cartel regulations.

Society demands a more sustainable world and the aviation industry is working towards more efficient aircraft and less polluting fuels. Governmental intervention, in the form of schemes like ETS and CORSIA, encourage progress so that the industry itself takes responsibility for sustainable aviation. This fits an idea that “taking action before you are forced to is always better in the long term”. The concern is that there is a large difference between minor interventions and a return to the bad old days of the US’ s CAB. sweeping regulation of the aviation sector. Blanket bans on domestic air travel and restriction on access to airports based on a policy maker’s perception of the sort of passenger that is being carried will not help.

To70 welcomes Professor Truxal to the Netherlands and we continue to work both here and across our global network in helping the aviation industry towards a more sustainable future.

 

[1]     From Disruption to Innovation in Air and Space: Legal Solutions for a Sustainable Future, Prof. S Truxal, Universiteit Leiden November 2021

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About To70. To70 is one of the world’s leading aviation consultancies, founded in the Netherlands with offices in Europe, Australia, Asia, and Latin America. To70 believes that society’s growing demand for transport and mobility can be met in a safe, efficient, environmentally friendly and economically viable manner. To achieve this, policy and business decisions have to be based on objective information. With our diverse team of specialists and generalists to70 provides pragmatic solutions and expert advice, based on high-quality data-driven analyses. For more information, please refer to www.to70.com.