ENERGY LAW AND E-KEROSENE CERTIFICATION FOR AVIATION FUELS

1. Introduction

E-kerosene is a form of synthetic aviation fuel produced through a Power-to-Liquid (PtL) process, generally by combining hydrogen produced from electricity with a carbon source such as captured CO₂. It is commonly discussed as a potential synthetic Sustainable Aviation Fuel (SAF) because renewable electricity can be used in its production.

From an energy-law perspective, e-kerosene raises important questions concerning fuel quality, sustainability certification, lifecycle greenhouse-gas emissions, renewable electricity, carbon sourcing, traceability, aviation safety and international climate obligations.

Certification is therefore not merely a technical exercise. It determines whether a particular batch of synthetic fuel can legally be placed into the aviation fuel supply chain and, under systems such as ICAO's CORSIA, whether its environmental benefits can be recognised for regulatory purposes.

ICAO's CORSIA framework presently requires eligible aviation fuels to satisfy sustainability criteria and to originate from fuel producers certified through an ICAO-approved Sustainability Certification Scheme.

2. Meaning of E-Kerosene

E-kerosene is synthetic kerosene produced using electricity-derived hydrogen and a carbon source. A simplified production chain is:

Renewable Electricity → Hydrogen → Synthetic Hydrocarbons → Refining/Blending → Aviation Fuel → Certification → Aircraft Use

The principal legal significance of e-kerosene is that its environmental status depends not simply upon the fact that it is "synthetic", but upon how its electricity, hydrogen and carbon inputs were produced and how the resulting emissions are calculated.

Thus, the law must distinguish between:

fossil-derived synthetic fuel;

renewable-electricity-based e-kerosene;

e-kerosene using captured biogenic CO₂;

e-kerosene using direct-air-captured CO₂; and

e-kerosene produced using electricity of uncertain or mixed carbon intensity.

3. Certification As An Energy-Law Requirement

Certification provides legal assurance that the fuel satisfies predetermined technical and sustainability requirements.

For an aviation e-kerosene pathway, certification can involve several layers:

A. Technical/Fuel Certification

The fuel must satisfy applicable aviation fuel specifications and an approved production pathway. ICAO's technical material explains that alternative aviation fuels intended for commercial aviation must comply with the relevant ASTM qualification process, including ASTM D4054 pathway evaluation.

B. Sustainability Certification

A fuel intended to receive regulatory recognition under CORSIA must satisfy the applicable sustainability criteria and come from a producer certified by an ICAO-approved Sustainability Certification Scheme.

C. Lifecycle-Emission Certification

The environmental value of the fuel is assessed through lifecycle emissions rather than merely looking at emissions produced when the aircraft burns the fuel.

ICAO's methodology considers emissions across the lifecycle, including feedstock activities, transportation, fuel production, distribution and combustion, together with relevant land-use effects and applicable credits.

D. Chain-of-Custody Certification

The producer and other economic operators must maintain reliable records demonstrating the origin and movement of the certified fuel. This prevents an operator from claiming environmental benefits for fuel that cannot be adequately traced.

4. Renewable Electricity And Hydrogen

The legal classification of e-kerosene depends heavily upon the electricity used to produce hydrogen.

If hydrogen is produced using renewable electricity, the resulting fuel may have substantially lower lifecycle emissions than conventional kerosene. However, simply describing hydrogen as "green" does not automatically establish legal eligibility.

Certification systems may therefore examine:

origin of electricity;

renewable-energy attributes;

electricity consumption;

hydrogen production;

carbon source;

production location;

transportation;

conversion efficiency;

lifecycle emissions; and

sustainability of associated inputs.

This prevents greenwashing and ensures that environmental claims are supported by auditable evidence.

5. Carbon Source And Carbon Circularity

E-kerosene requires carbon to create hydrocarbons. The carbon may originate from different sources.

The strongest climate-policy case generally arises where carbon is captured from sources that do not create additional long-term fossil-carbon extraction, particularly where direct-air capture or eligible biogenic sources are used.

Consequently, certification should establish:

Where did the carbon come from?

How much carbon was captured?

Was it fossil, biogenic or atmospheric carbon?

What emissions occurred during capture and processing?

Can the carbon claim be independently verified?

These questions are central to preventing double counting of climate benefits.

6. Lifecycle Emissions And Legal Accountability

One of the most important principles of e-kerosene certification is the lifecycle approach.

A fuel may have low direct combustion emissions but still have significant upstream emissions if:

hydrogen is produced using carbon-intensive electricity;

CO₂ capture consumes fossil energy;

fuel production uses inefficient processes;

feedstocks are transported over long distances; or

renewable electricity is improperly attributed to the fuel.

ICAO expressly recognises lifecycle emissions as a basis for determining the emissions benefits of CORSIA eligible fuels. Operators can use approved default lifecycle values or, where permitted, actual lifecycle values supported by technical information and appropriate certification.

Therefore, certification transforms lifecycle accounting into a regulatory compliance mechanism.

7. CORSIA And E-Kerosene

The International Civil Aviation Organization's Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) is particularly important.

CORSIA allows aircraft operators to reduce their offsetting requirements through qualifying aviation fuels. ICAO identifies CORSIA Sustainable Aviation Fuels and Lower Carbon Aviation Fuels as eligible categories subject to the applicable framework.

For eligible fuels, the legal chain is approximately:

Fuel Production → Sustainability Certification → Lifecycle Assessment → Fuel Purchase → Operator Claim → Verification → Reporting → Regulatory Recognition

This demonstrates that certification is connected directly with an aircraft operator's regulatory obligations.

8. Role Of Sustainability Certification Schemes

An ICAO-approved Sustainability Certification Scheme performs an independent assurance function.

The certification scheme verifies whether the fuel producer satisfies the applicable sustainability requirements. ICAO requires approved schemes to follow the CORSIA eligibility framework and associated requirements.

The principal legal functions are:

verification of sustainability requirements;

verification of producer compliance;

checking relevant records;

maintaining chain-of-custody integrity;

supporting lifecycle-emission calculations;

preventing false environmental claims; and

providing evidence for regulatory reporting.

Thus, certification creates a form of delegated regulatory governance, because private or specialised certification organisations perform verification functions within an international regulatory framework.

9. Prevention Of Double Counting

Double counting is a major legal issue.

Suppose one unit of renewable electricity or one quantity of captured CO₂ is simultaneously claimed by:

the e-kerosene producer;

another renewable-energy producer;

an emissions-credit system; and

an aircraft operator.

The same environmental benefit could then be claimed multiple times.

A credible certification regime therefore requires:

unique accounting + traceability + documentation + verification + registry/reporting controls.

ICAO's CORSIA framework contains reporting and verification mechanisms for eligible-fuel claims.

10. Aviation Safety And Energy Law

Sustainability alone is insufficient.

An e-kerosene may have excellent lifecycle characteristics but cannot be used commercially unless it satisfies the relevant aviation fuel quality and safety requirements.

This produces a dual regulatory structure:

Environmental legality + Technical aviation legality

The first asks whether the fuel is sustainable.

The second asks whether the fuel is safe and technically suitable for aircraft engines and aviation infrastructure.

Consequently, energy law and aviation safety law operate together.

11. Case Laws

1. Air Transport Association of America Inc. v Secretary of State for Energy and Climate Change, Case C-366/10 (CJEU, 2011)

This case concerned the application of the EU Emissions Trading Scheme to aviation and challenges brought by airlines concerning the treatment of aviation emissions.

Principle: Aviation is capable of being subjected to climate-related regulatory mechanisms even though international aviation has a distinctly transboundary character.

Relevance to e-kerosene: It demonstrates that aviation fuel and emissions can be regulated through environmental mechanisms extending beyond conventional aviation-safety regulation.

2. R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52

The UK Supreme Court considered whether the Government's policy framework for Heathrow expansion had unlawfully failed to take account of the UK's climate commitments.

The Court ultimately allowed Heathrow's appeal, but the litigation illustrates the increasing legal importance of climate considerations in aviation policy.

Relevance to e-kerosene: Aviation infrastructure and aviation policy must increasingly be considered within a broader climate-governance framework. E-kerosene certification is one regulatory mechanism through which aviation decarbonisation objectives can be incorporated into aviation policy.

3. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214

The Court of Appeal considered climate obligations in connection with the Heathrow Airports National Policy Statement.

Principle: Climate commitments may be legally relevant to major governmental decisions concerning aviation infrastructure.

Relevance: E-kerosene policy, certification rules and aviation decarbonisation measures should be designed consistently with wider statutory and environmental objectives.

4. Massachusetts v Environmental Protection Agency, 549 U.S. 497 (2007)

The United States Supreme Court held that greenhouse gases fall within the statutory concept of air pollutants under the Clean Air Act and that the EPA could not simply avoid addressing the issue on the basis of policy disagreement.

Principle: Greenhouse-gas emissions can constitute a legally significant environmental regulatory issue.

Relevance: The case supports the broader proposition that aviation emissions can become subject to legally enforceable environmental governance, strengthening the regulatory rationale for lifecycle certification of alternative aviation fuels.

5. Urgenda Foundation v State of the Netherlands, Supreme Court of the Netherlands, 20 December 2019

The Dutch Supreme Court upheld a climate-related duty requiring the State to pursue a stronger reduction pathway for greenhouse-gas emissions.

Principle: Climate protection can generate concrete legal obligations for governments.

Relevance: Where governments adopt e-kerosene and SAF policies, certification standards should be sufficiently robust to ensure that claimed emissions reductions are real and measurable rather than merely promotional.

6. Vereniging Milieudefensie v Royal Dutch Shell plc, District Court of The Hague, 26 May 2021

The Dutch District Court addressed Shell's corporate responsibility in relation to climate change and ordered reductions in the Shell group's aggregate CO₂ emissions.

Principle: Climate responsibility may extend beyond direct governmental regulation and influence corporate conduct.

Relevance: Aviation-fuel producers and suppliers can increasingly face legal pressure to demonstrate credible climate performance. E-kerosene certification therefore becomes relevant to corporate environmental accountability as well as public regulation.

12. Legal Problems In E-Kerosene Certification

Several legal difficulties remain.

A. Absence Of Uniform Global Standards

Different jurisdictions may apply different sustainability definitions, lifecycle methodologies and renewable-energy requirements.

B. Greenwashing

A producer may describe fuel as "green" without satisfying the rigorous criteria necessary for regulatory recognition.

C. Additionality

A key question is whether renewable electricity used for e-kerosene production represents genuinely additional renewable generation or merely diverts existing renewable electricity from other users.

D. Temporal And Geographic Correlation

Certification systems increasingly face questions concerning whether electricity generation and fuel production must correspond in time and location.

E. Carbon Accounting

Incorrect treatment of captured CO₂ can overstate climate benefits.

F. Double Counting

The same renewable electricity, carbon removal or emissions reduction must not be claimed under multiple regulatory systems.

G. Verification Costs

Small producers may face significant costs in obtaining sustainability and lifecycle certification.

13. Regulatory Model For E-Kerosene

An effective legal framework should contain the following elements:

1. Technical Fuel Standard
The fuel must satisfy applicable aviation specifications.

2. Approved Production Pathway
The production technology must be technically qualified for aviation use.

3. Renewable-Energy Verification
The electricity and hydrogen inputs should be traceable.

4. Carbon-Source Verification
The origin and sustainability of carbon should be documented.

5. Lifecycle Assessment
Emissions should be calculated throughout the fuel lifecycle.

6. Independent Certification
Certification should be performed by an approved and competent body.

7. Chain-of-Custody Rules
Every certified batch should be traceable.

8. Anti-Double-Counting Rules
Environmental benefits should be assigned only once.

9. Audit And Enforcement
False certification should lead to withdrawal of certification, penalties and potentially exclusion from incentive schemes.

10. International Recognition
Certification should be capable of recognition across aviation jurisdictions.

14. Importance For Energy Transition

E-kerosene is particularly significant because aviation is difficult to electrify directly at large scale. Synthetic liquid fuels therefore form part of the legal and policy debate concerning the decarbonisation of hard-to-abate transport.

However, the legal objective should not merely be to increase production of synthetic fuel. The objective should be to ensure that the fuel genuinely produces the environmental benefits claimed by the producer and aircraft operator.

ICAO's current framework expressly links fuel eligibility with sustainability certification, lifecycle-emission assessment, monitoring, reporting and verification.

15. Conclusion

E-kerosene certification represents an important intersection of energy law, aviation law, environmental law and climate regulation. Certification determines whether synthetic kerosene can be treated as a legitimate low-carbon aviation fuel and whether its environmental benefits can receive regulatory recognition.

The central legal principle is that "synthetic" does not automatically mean "sustainable." The complete production chain must be assessed.

A robust legal framework therefore requires technical fuel qualification, renewable-electricity verification, carbon-source tracing, lifecycle-emission accounting, sustainability certification, chain-of-custody controls, independent verification and anti-double-counting mechanisms.

The development of CORSIA demonstrates this approach: ICAO currently requires eligible fuels to satisfy sustainability criteria and to originate from appropriately certified producers, while lifecycle emissions determine the emissions-reduction value attributed to the fuel.

Accordingly, e-kerosene certification should be understood not merely as a fuel-quality certificate, but as a comprehensive legal assurance mechanism for aviation decarbonisation.