Page 29 - Lawtext Environmental Law & Management Journal Sample

400
0
1 1 1 1 14 44 40 0 (2008) 20 ELM : PROPOSED MODIFICATIONS TO THE EMISSIONS TRADING DIRECTIVE : POCKLINGTON
this is far from perfect. Current experience has showed • publication by the Commission of the absolute quantity
‘some degree of divergence of Member States’ practices’, of allowances for 2013 by 30 June 2010 (Article 9)
and it is suggested that a regulation adopted through • adoption by the Commission of a regulation on the
comitology should replace the current guidelines. timing, administration and other aspects of
Article 14 states that the Commission shall adopt a auctioning, by 31 December 2010 (Article 10(5))
regulation for the monitoring and reporting of emissions • adoption by the Commission by 30 June 2011 of
and, where relevant, activity data, from the activities listed Community-wide and fully harmonised implementing
in Annex I. This will be based on the principles set out in measures for allocation (Article 10a)
Annex IV of the directive and shall specify the global · ‘not later than June 2011’, the submission by the
warming potential of each greenhouse gas in the Commission to the European Parliament and the
requirements for monitoring and reporting emissions for Council of an analytical report on the energy-intensive
that gas. sectors or sub-sectors that have been determined to
be exposed to significant risks of carbon leakage
Summary and conclusions (Article 10b)
• publication by Member States and submission to the
Before the Emissions Trading Directive was ratified in Commission of the list of installations covered by this
2003, industry expressed a number of concerns about directive in its territory and any free allocation to each
47
its potential impact. The various position papers all installation by 30 September 2011 (Article 11).
expressed a fear that European industry would be put at
a financial and operational disadvantage as a result of the Although an early decision on these factors would give
trading scheme. Industry was concerned that the trading industry some of the certainty it desires, it would also
scheme should not provide an incentive to relocate plants reduce the time available for the collection of data to
outside the EU and/or increase imports into the EU. In demonstrate that specific sectors are ‘competitively
this respect, critical parts of the initial proposal were those impacted’.
related to allocation, burden sharing and costs of compliance. As the ‘conclusion of an international agreement’ is
This continues to be industry’s major concern. the trigger for a number of actions within the directive,
Although its preferred approach to certain issues has not industry has been anxious to determine the exact meaning
changed – placing the major burden of GHG reduction of this phrase. Key to the timing of the measures
on energy-intensive industries and the need to include all highlighted above is the Copenhagen Climate Conference
GHG and all Kyoto mechanisms – its former preference (COP 15) in December 2009 at which the UN climate
for national allocation has changed, and although free negotiations on the post-2012 framework are expected
allocation continues to be favoured over auctioning, some to be finalised. Although the proposal makes no direct
sectors are now well advanced in developing practical reference to COP 15, the dates of Commission decisions 49
approaches based on benchmarking. are clearly based upon the conclusion of these
The preamble to the proposed directive makes a negotiations (Article 9).
number of references to the importance of improved An argument against a more prescriptive definition
certainty and predictability. However, it is clear from the of an ‘international agreement’ is that the definition of
text that the extent to which this may be achieved is any pre-conditions by the EU would be counter-productive
limited, on account of: to the negotiation of such an agreement. Likewise, clearer
definition of the quantitative aspect of the proposed
• the unknown nature and coverage of the expected directive might limit the Commission’s flexibility once an
international agreement on the reduction of international agreement has been concluded.
greenhouse gas emissions France has added a further dimension to the dynamics
• the mismatch in timing between any such international of the parliamentary process by expressing a desire to
agreement and Phase III of the European scheme, obtain a first reading agreement by December 2008,
which is further compounded by the substantial lead during its Presidency of the EU. If an early agreement is
time for industry to respond to any new requirements. to be achieved, it may not be possible for the directive to
include every issue to the required level of detail, and some
Sectors impacted by the directive tend to be capital may be left to the comitology procedure following its
intensive, and as such have long investment cycles for the publication. Thus parliamentarians are faced with the
installation of the new plant required for reducing dilemma of the extent to which contentious issues should
48
greenhouse gas emissions. As a consequence, industry be delegated to a process over which they have relatively
50
as a whole has been vociferous in its demands to bring little control. Therein rests the future success of the
forward some of the key dates within the directive, namely: world’s largest emissions trading scheme.

47 DN Pocklington ‘European Emissions Trading – The Business 49 Between June 2010 and June 2011.
Perspective’ [2002] EELR 11 (7) 210. 50 For a description of recent changes to the comitology process see DN
48 For example, within the cement industry the period between planning Pocklington ‘Comitology under Further Scrutiny’ [2006] European
and full-scale operation is generally five to seven years. Environmental Law and Management 15 (11) 306.

ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITED
www.lawtext.com