Maciej Szewczyk

Climate change impacts airborne sleigh traffic

As an operator of seasonal reindeer-powered sleigh flights, is Santa Clause required to pay a fee for generating greenhouse gases on the same basis as airlines?

Under the Emissions Trading Directive (Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community, as amended by Directive 2008/101/EC), beginning 1 January 2012 the EU’s CO2 emissions trading system will be extended to cover aviation.

This means that requirements to cut flight-related greenhouse gas emissions will apply to aircraft operators, who, like operators of land-based facilities (e.g. factories), they will be required to pay for their actual greenhouse gas emissions through the emissions trading system.

One issue that was not expressly addressed at the Community level is whether the requirements of the directive will apply to transport of presents via airborne sleigh.

While the directive itself does not define “aircraft,” under the international “Rules of the Air” (Annex 2, Chapter 1 of the Chicago Convention—Convention on International Civil Aviation signed at Chicago on 7 December 1944, promulgated in Poland at Journal of Laws Dz.U. 1959 No. 35 item 212, as amended), “aircraft” is defined as: “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” Given that St. Nick’s sleigh is capable of remaining aloft under its own reindeer power, and moreover can move about from place to place, the sleigh may be deemed an “aircraft” for regulatory purposes.

Under the directive, an “aircraft operator” is defined as “the person who operates an aircraft at the time it performs an aviation activity … or, where that person is not known or is not identified by the owner of the aircraft, the owner of the aircraft.” If Santa may be deemed to be “operating” the sleigh, it would appear that he also qualifies as an “aircraft operator” for purposes of the directive.

Under the directive, the emissions trading system will, as a rule, apply to “all flights which arrive at or depart from an aerodrome situated in the territory of a Member State.” It is undisputed, based on the location of the Claus headquarters at Rovaniemi, in the Lapland region of Finland, that the territorial criteria are met in this case.

However, a definitive answer to the question of whether transport of presents by Kris Kringle via sleigh qualifies as “aviation” for purposes of the directive requires a determination of whether the scheduled flights enjoy a safe-harbour exemption for light aircraft under Appendix I, item (h), which provides that aviation shall not include “flights performed by aircraft with a certified maximum take-off mass of less than 5700 kg.” Although figures as of takeoff from the North Pole have not been released in recent years, if the single sleigh carries—in the course of one night—toys sufficient to light up the eyes of millions of children on Christmas morning, the mass on takeoff would almost certainly exceed the minimum for coverage by the directive. Moreover, even if only a tiny percentage of the children were naughty, transport of a lump of coal for each one’s stocking might be enough to reach the 5700 kg figure for coal transport alone, without even counting the weight of toys for all the nice children, who have represented the vast majority of all children ever since records have been maintained.

The legal department at Claus, Inc., in consultation with the CFO and COO, are reviewing Santa’s compliance programme to assure that sleigh flights from 2012 on meet the requirements of the Emissions Trading Directive, under which Claus will need to pay for actual greenhouse gas emissions on the same basis as commercial airlines and other aircraft operators.

Maciej Szewczyk, Environmental Law Practice Group at Wardyński & Partners