THE BLOG
10/31/2013 05:22 pm ET | Updated Jan 23, 2014

Sovereignty and Senator Thune's Change of Tune

"Sovereignty -- The quality of having independent authority over a geographic territory."

Last year, American sovereignty was the central rallying point used during Congressional efforts -- led by Sen. John Thune (R-SD) -- to block U.S. airlines from abiding by the European Union's Emission Trading Scheme (EU ETS) -- a law aimed at reducing harmful aviation pollution.

At the heart of Thune's battle cry was the claim that the EU ETS infringed on US sovereignty because it required emissions reductions on all flights to and from Europe, including the pollution emitted over US and international airspace.

This prompted Thune and his colleagues to pass legislation giving the Secretary of Transportation authority to prohibit US airlines from obeying the EU law. Sen. Thune went on the speaking circuit decrying the EU ETS as a "threat to American sovereignty" while affirming on FoxNews that Article I of the 1944 Chicago Convention [PDF] allows the EU to control its own airspace.

Adamantly opposed to the idea of infringing on the airspace of another sovereign land, Sen. Thune restated this position during multiple Congressional hearings here and here by articulating, "let me be clear, no one in Congress is against the EU implementing ETS within their own boundaries."

Leading up to the 38th Assembly of International Civil Aviation Organization -- the UN body charged with developing a global plan to reduce aviation emissions -- in Montreal, Sen. Thune crafted a letter to U.S. negotiators reminding them not to allow the EU to tread on this sovereign land.

As anticipated, ICAO agreed to a global solution by 2016 that would come into effect in 2020, and they effectively gutted the EU ETS by calling on Europe to reduce the scope of the law to flights within its own airspace. Following ICAO, the European Commission took the directive and has proposed amending the EU ETS to just covering the portion of flights in its own airspace as a global agreement hobbles along.

Based on Sen. Thune's own rationale, these developments should be heralded as a major victory by every member of Congress and defender of national sovereignty. Now that the EU has been beaten back into it's own airspace and a threat to U.S. sovereignty averted, one would think Sen. Thune's legislative accomplishment is no longer applicable to the issue.

For this reason, those following the issue closely were perplexed by news reports that Sen. Thune intends to contact Department of Transportation Secretary Anthony Foxx about invoking the Thune law's prohibition on U.S. airline compliance with the ETS. While the request raises questions about Sen. Thune's ability to recognize a win, it also brings into light the reassessment language in the bill that directs the Secretary to reassess a prohibition in the event that:

1. The European Union amends its own Directive (which the European Commission is in the process of doing)

2. An international agreement on aircraft emissions is adopted (ICAO agreed to agree on a global solution in 2016) or

3. The U.S. enacts a public law or issues regulations addressing aircraft emissions (The Clean Air Act of 1970 Tittle II, Part B sections 231-234 grants the EPA authority to regulate aviation emissions.)

If anyone is now threatening American sovereignty, it's Senator Thune himself, because if we tell Europe they can't regulate pollution in Europe, just imagine how many foreign companies operating in the U.S. would chomp at the bit to use this as a precedent to violate a whole host of health, safety, national security and environmental laws within American boundaries.