The Long Arm of the DOT: The Regulation of Foreign Air Carriers Beyond US Borders

Abstract

The European Union's plan to include foreign air carriers in its Emissions Trading Scheme (ETS) attracted considerable opposition based upon the ground of extraterritoriality, but it certainly was not the first effort to regulate air transportation beyond national borders. Notably, the United States - one of the most vigorous opponents of the application of ETS to its own air carriers - has a long history of imposing extraterritorial requirements on carriers from other nations. Although many of these proposals previously have been analyzed on an ad hoc basis, there has not been a comprehensive overview of them and their implications. This article contends that, post-deregulation, such proposals have become more common, even while the consequences of extraterritorial regulation may not have been fully considered. In recent years, Congress and Department of Transportation (DOT) often have proposed extraterritorial aviation obligations; the Federal Aviation Administration (FAA), by contrast, has been more restrained in its approach, although it also has proposed requirements that would reach beyond US borders. In some cases, statutes and regulations have been limited or withdrawn based on extraterritorial concerns, but in others, they have been adopted despite objections from foreign carriers and governments. As a consequence, the United States is now potentially vulnerable to accusations of inconsistency in its opposition to foreign proposals that would have the effect of regulating US-flag carriers.