Greenhouse Update (National) (17/07/2008)
Climate change debate heats up – Government releases green paper on design of national emissions trading scheme
In brief
- The Government has released a green paper which sets out its proposals for the design of the national emissions trading scheme intended to commence in 2010.
- The green paper identifies the Government’s preferred approach to the key policy issues, but should not be taken to represent the Government’s final position.
- Businesses can expect further proposals and debate, as well as the opportunity to make submissions to the Government, on many of these issues as 2010 approaches.
The Government has released a green paper on the design of the national emissions trading scheme which it calls the Carbon Pollution Reduction Scheme. The green paper does not enumerate the trajectories for GHG emissions reductions, but it does cover the other key elements in the design of the scheme including sectoral coverage, allocation of permits, the operation of the carbon market, assistance for households and industry, international links, tax issues, reporting obligations and compliance, and governance and transitional arrangements.Background Hot on the heels of the Draft Report of the Garnaut Review (Garnaut Draft), the Government yesterday released a green paper outlining its approach to the design of a national emissions trading scheme which it calls the Carbon Pollution Reduction Scheme (CPRS). The Government’s strategy on climate change as set out in the green paper has three key elements:
- Reducing greenhouse gas (GHG) emissions to 60% below 2000 levels by 2050.
- Adapting to unavoidable climate change.
- Playing a role in shaping a global solution that protects the planet and advances Australia’s long term interests.
It seeks to achieve these goals through the implementation of the CPRS.The green paper draws on work undertaken by the Task Group on Emissions Trading, the National Emissions Trading Task Force and the Garnaut Review. Reference was also made to the European Union Emissions Trading Scheme and schemes in other parts of the world including New Zealand, Japan and North America. The development of policy options was influenced by consultations with industry, community groups and other stakeholders over the past year.This article surveys the major policy initiatives contained in the green paper and summarises the key outcomes for industry. It also identifies instances where the Government proposals contained in the green paper differ from the recommendations made in the Garnaut Draft.What is not in the green paper? Most significantly, the green paper does not provide the numbers for Australia’s emissions reduction trajectory. However, the Government has made clear its intention to release medium term trajectories following the Final Report of the Garnaut Review (which is expected in September this year) and modelling undertaking by Treasury (which is expected in October this year). The trajectories will be finalised after that work has been published and scrutinised.The green paper does propose that the CPRS impose caps set in advance for periods of five years, or longer in the event that international obligations extend beyond this. For example, assuming that the CPRS commences in 2010, this means that prior to commencement, the cap would be set for the period between 2010-11 and 2014-15, and then in 2011, the cap would be set for 2015-16. Beyond these five year periods, the Government proposes that it will also identify a range within which future caps will be set (known as a gateway).In the event that the caps set by the Government are not compatible with international targets, they will not be adjusted, but the Government will make up the shortfall by purchasing international units.What is in the green paper? Under the CPRS, firms will be free to emit GHGs at whatever level they choose. They will, however, be required to surrender, at the end of the compliance period, an eligible Government issued permit, which will be known in the legislation giving effect to the CPRS as an Australian emissions unit (AEU), for every tonne of emissions of CO2 equivalent. The number of AEUs issued each year will be governed by the cap on emissions set in accordance with the reduction trajectories. Once allocated through an auction process, AEUs will be able to be freely traded.Apart from the question of emissions reduction trajectories, the green paper makes policy recommendations concerning the key aspects of the operation of the CPRS:
- coverage and point of obligation
- auctioning of permits
- operation of the carbon market
- household assistance
- industry assistance
- international links
- tax issues
- governance arrangements and implementation
- reporting and compliance
- transitional arrangements.
Coverage and point of obligation Most of Australia’s GHG emissions come from electricity generation, transport and agriculture. For this reason, the Government has proposed broad coverage for the CPRS. It will cover the stationary energy, transport, fugitive emissions, industrial processes, waste (in contrast to the Garnaut Draft which recommended the exclusion of waste) and forestry (on an opt-in basis covering reforestation but not deforestation) sectors. In addition, all six GHGs (namely, methane, nitrous oxide, sulphur hexafluoride, and certain hydrofluorocarbons and perfluorocarbons in addition to carbon dioxide) will be included from the time that the CPRS commences.Although the Government considers it desirable to have maximum coverage, it considers that at this stage, it is impractical for agricultural emissions to be included. Accordingly, the Government has decided that the earliest that agriculture should enter the CPRS would be 2015, with a final decision on inclusion or exclusion to be made in 2013. The Government is not proposing to establish an offset scheme for the agriculture sector prior to this time.Based on a baseline for inclusion of emissions of 25,000 tonnes of CO2 equivalent annually (although different thresholds may apply to different sectors such as waste and synthetic GHG emissions), the Government estimates that there will be around 1,000 firms compulsorily covered by the CPRS. These firms are jointly responsible for about 75% of Australia’s GHG emissions. It envisages that most liable parties will already be participating in the National Greenhouse and Energy Reporting Scheme (NGERS). (See our article on “ Emissions reporting commences – Regulations released just in time“.) The green paper makes specific provision regarding the point of obligation in various industry sectors:
- Transport sector - In the case of the transport sector, the obligation to surrender AEUs will be imposed on upstream fuel suppliers, although the Government has announced its intention to work with the fuel supply industry to develop administrative arrangements to ensure that exported fuel, fuel used for international transport, fuel sequestered in plastic, and fuel supplied to visiting defence forces and consular vehicles is excluded.
- Synthetic GHG emissions - In relation to synthetic GHG emissions, the obligation will apply to bulk importers of synthetic GHGs, large importers of equipment containing synthetic GHGs, and domestic synthetic GHG manufacturers.
- Fuel combustion - The obligation for emissions from fuel combustion will apply to all fuel excise and customs duty remitters for all liquid fuels currently subject to fuel excise and excise-equivalent customs duty, with thresholds to exclude smaller customs duty remitters to be determined.
- Liquefied petroleum gas - The obligations for emissions from liquefied petroleum gas will include producers, marketers, distributors and importers of liquefied petroleum gas supplied to energy users.
- Domestic combustion of natural gas - In respect of the emissions from the domestic combustion of liquefied natural gas and compressed natural gas, the obligation will apply to the producer of those fuels.
- Natural gas combustion - The obligation for emissions from natural gas combustion will be applied to entities with facilities which meet the threshold, and to natural gas retailers for emissions from gas to small emitters, or to gas producers where they supply directly to small emitters.
- Black coal combustion - In relation to black coal combustion, the obligation will cover facilities that meet the threshold and all coal mines, distributors, washeries and producers of coke and coal byproducts for emissions from small emitters.
- Brown coal combustion - In relation to brown coal combustion, the obligation will cover facilities that meet the threshold and manufacturers of brown coal briquettes and other brown coal byproducts for emission from small emitters.
- Carbon capture and storage - Whilst carbon that is transferred to carbon capture and storage (CCS) facilities will be netted out of the originating entity’s gross GHG emissions, obligations in relation to fugitive emissions from the transport of the carbon and from the operation of the CCS facility will be imposed on the operator of the facility.
- Biofuels and biomass -There will be no obligations for emissions from combustion of biofuels and biomass for energy.
In general, the obligation to surrender AEUs in respect of covered facilities or activities will be on the entity with operational control over those facilities or activities. Where multiple enterprises exercise a degree of operational control, a single responsible entity will be required to register and meet obligations under the CPRS. For corporations, obligations will fall on the controlling corporation of a company group where either the controlling corporation or a member of the group has operational control over a covered facility or activity.Auctioning of permits Initially, the Government proposes to auction the majority of AEUs. Although this is the only type of permit that will be issued by the Government, certain other types of permits may be used to meet the requirements of the CPRS. Subject to the provision of transitional assistance for emissions-intensive trade-exposed (EITE) and “strongly affected” industries, the Government intends to move towards 100% auctioning over the long term.The Government proposes that auctions will be held quarterly and will start “as early as is feasible in 2010″, although the Government has invited submissions on alternative arrangements. Universal participation in the auctions will be permitted, subject to the lodgement of any security deposit that may be required. Once a year, there will be special auction that will include not only the AEUs for the current year, but will also include AEUs for future years.The Government has committed to using all of the revenue generated from the auction to assist households and business to adjust to the impacts of the CPRS. This is in contrast to the Garnaut Draft, which envisioned such revenue being used for a much broader range of purposes.Operation of the carbon market In essence, an AEU will constitute personal property composed of the rights set out in the legislation giving effect to the CPRS. For the purposes of the carbon market, the most important rights attaching to an AEU will be the right to surrender and the right to transfer. The Government will not have the power to extinguish AEUs without compensation, except in cases of misrepresentation or fraud.The Government will permit the creation of equitable interests in AEUs, and the taking of security over AEUs. AEUs will be deemed to be “financial products” for the purposes of the Corporations Act 2001 (Cth) and, accordingly, the Government is considering appropriate adjustments to that Act.Each AEU is to represent emissions of one tonne of CO2 equivalent, that is each AEU surrendered will discharged the obligation relating to the emission of one tonne of CO2 equivalent. Each AEU may only be surrendered on one occasion. The Government anticipates that the CPRS will operate on a financial year basis, and that the final date for surrender of AEUs will be a fixed time after the final date for reporting of GHG emissions pursuant to NGERS. However, entities will also be entitled to surrender AEUs at any time before the annual surrender deadline and, in addition, any entity will be entitled to voluntarily surrender AEUs, regardless of whether it has any obligations under the CPRS.AEUs will each have a unique identification number and be date stamped so that they correspond to a particular year, although they will not have an expiry date. For record keeping purposes, ownership will be tracked in a national registry. AEUs will be represented by entries in the registry rather than actual paper certificates. Holders will only be entitled to surrender the AEUs that they hold as recorded in the registry, and legal title can only be transferred by entry in the registry.The Government does not envisage any barriers to ownership or transfer of AEUs. They will be able to be traded and held by any legal or natural person, including foreign individuals and corporations, subject to verification and measures to prevent criminal activity as well as restrictions that might apply under other laws.The Government proposes to allow unlimited banking under the CPRS. This means that businesses can “bank” AEUs, that is provided they surrender the appropriate number of AEUs each year, they can hold onto those that are not surrendered and use them in a future year. Additionally, the Government proposes to allow borrowing from future years to a limited degree. The percentage limit on borrowing will be set at the time when the Government makes its final decisions about the design of the CPRS, but is likely to be less than 5%. This means that business will be permitted to “borrow” AEUs from the following year for surrender in a particular year, but only up to a specified limit.Household assistance It is estimated that, based on a price of $20 per tonne of CO2, electricity prices will rise by 16%, other household fuel costs will rise by 9% and the CPI will rise by 0.9%. Accordingly, the Government will provide low income households with assistance through the tax system, and all households with other types of assistance to address the impact on their standard of living. The cost of providing this assistance will be met by the revenue generated by the auction of AEUs.The Government has also undertaken to reduce fuel taxes on a cent for cent basis to offset the initial price impact on fuel associated with the introduction of the CPRS. For a period of three years, the government will assess the adequacy of this measure and make appropriate adjustments. After three years, this adjustment mechanism will be reviewed.Industry assistance The Government has proposed three key measures designed to limit the impact of the CPRS on industry:
- A cap on the price of AEUs.
- Assistance to the most heavily EITE activities.
- Assistance for strongly affected industries.
First, for the first period of operation of the CPRS, that is the period from 2010-11 to 2014-15, there will be a cap on the price that businesses will be required to pay to purchase AEUs.Second, the Government will provide assistance to the most heavily EITE activities. This is in contrast to the Garnaut Draft which advocated for assistance after 2012 only in the absence of sectoral agreements to account for material distortions arising from major trading competitors not adopting commensurate emissions constraints.The Government will assist those firms that will have a sufficiently material impact on their costs structures as a result of the CPRS. To identify those firms, it proposes to use a measure based on emissions intensity per unit of revenue rather than one based on emissions per unit of value add. However, assistance will be limited to those industries most at risk of carbon leakage, that is the risk that in the absence of assistance those EITE activities may be relocated elsewhere with no consequent global reduction in GHG emissions.The type of assistance that will be provided will include the allocation of free AEUs on the basis of the most emissions intensive activities that lead to the production of trade-exposed products, rather than firms or industries, in two tranches:
- Activities with a GHG emissions intensity of above 2,000 tonnes of CO2 equivalent per million dollars of revenue will receive a free allocation of AEUs to cover 90% of their emissions.
- Activities with a GHG emissions intensity of between 1,500 and 2,000 tonnes of CO2 equivalent per million dollars of revenue will receive a free allocation of AEUs to cover 60% of their emissions.
Based on currently available information, it is estimated that this will account for the allocation of about 30% of AEUs.Eligibility for this type of assistance will be assessed on the basis of industry averages rather than the GHG emissions intensity of a particular firm or facility. Additionally, the rate of assistance per unit of output will be gradually reduced over time at a pre-announced rate. It is expected that assistance will be provided until 2020 unless broadly comparable constraints in other countries, or sectoral agreements, are developed. After 2020, assistance will be phased out within five years, assuming an acceptable global agreement is in place.Third, there will be scope for direct assistance to be provided to strongly affected industries. Such assistance will be provided through the Electricity Sector Adjustment Scheme (ESAS). The Government will consult with stakeholders to identify the appropriate forms of support under ESAS, but it is likely to involve, at the least, the allocation of free AEUs and may also include support for CCS as well as structural adjustment assistance for affected workers, communities and regions. The provision of AEUs will take the form of free allocations at the beginning of each compliance period, contingent on production, to cover the direct and indirect electricity emissions associated with the activity or process.The level of support will not be finalised until the 2020 emissions reduction target is set, but it will provided on a “once and for all basis”, that is further allocations of assistance will not be provided after the CPRS commences.Although coal-fired electricity generation is the only industry that has been specifically identified in the green paper as being strongly affected, the Government has also considered other industries including waste, the production of natural gas and gas supply, and invites submissions on this question. The characteristics that it has identified of a strongly affected industry are:
- trade exposed
- emissions intensive
- including some entities that are emissions-intensive compared to their competitors such that they cannot pass on carbon costs
- have significant capital costs
- do not have significant economically viable abatement opportunities available to them.
International links The CPRS will be designed to link with schemes overseas. A variety of international units will be accepted for surrender in place of AEUs, namely certified emissions reductions under the Kyoto Protocol’s clean development mechanism, emission reduction units created under the joint implementation mechanism and removal units created in respect of land use and forestry activities. However, in the short term, there will be limits on the number of international offset credits that liable firms can surrender.Tax issues The introduction of the CPRS raises questions about the treatment of AEUs under the Australian tax laws and Australian Accounting Standards. The Government proposes to present proposals for changes to relevant tax laws later this year. Its preferred position is to develop discrete provisions for the income tax treatment of AEUs which would allow a deduction for expenditure incurred on the purchase and include any proceeds from the sale of AEUs as assessable income. The cost of acquisition would be deductible at the time the AEU is acquired, but if the AEU is banked, the effect of the deduction would be deferred until the time at which it is surrendered or sold. The effect of deferring a deduction for the purchase of an AEU would be achieved through a rolling balance method under which the value of AEUs held at the beginning and end of the income year would be taken into account.The particular treatment in any particular case would depend on the precise legal nature of AEUs, and the purpose of acquisition, both at the time the AEU is purchased and while it is held.From a GST perspective, the preferred position is for transactions under the CPRS to be treated under normal GST rules. Generally, a transaction involving the purchase of AEUs would be subject to GST, while no GST would apply in respect of freely allocated AEUs. It is thought unlikely that the purchase or surrender of an AEU would have capital gains tax consequences. Income tax implications will also arise in respect of penalties imposed under the CPRS.Governance arrangements and implementation The CPRS is to be established by the enactment of Commonwealth legislation, but State and Territory Governments will be informally engaged as part of ongoing cooperation on climate change policy through the Council of Australian Governments (COAG).The Government proposes to establish an independent regulator and to conduct independent reviews of the CPRS every five years. The regulator will be responsible for monitoring and enforcing compliance, conducting auctions for AEUs, allocating free AEUs in accordance with specified rules and maintaining the national GHG emissions registry. The Government’s role will be to set and extend caps and gateways, decide the nature and extent of international links and decide when allocations of free AEUs to EITE activities should cease.Reporting and compliance The green paper suggests that, where practical, NGERS will be used as the basis for monitoring, reporting and assurance of emissions. It is envisioned that a single annual report prepared by liable entities will satisfy the requirements under both NGERS and the CPRS. However, the Government does propose improving the measurement methodologies under the NGERS framework.Enforcement provisions will be finalised over the remainder of this year, but the CPRS will have a compliance period of one year. It is likely that the regulator will be given a broad range of compliance, investigative and enforcement powers, and a broad range of mechanisms to respond to non-compliance.Transitional arrangements As we move forward, the Commonwealth and State Governments, through COAG, are reviewing the role of existing programs to ensure that they remain relevant.To provide assistance to businesses more generally, the Government proposes to establish a Climate Change Action Fund which will focus predominantly on those industries not receiving free allocations of AEUs.Moving forward The policy proposals contained in the green paper are broadly in line with the recommendations made in the Garnaut Draft. It is important to remember, however, that the green paper does not represent the Government’s final policy intent. The Government is now seeking feedback on all elements of the green paper to inform its decision-making on the final design of the CPRS.The Government intends to release a white paper incorporating these decisions and an exposure draft of legislation for the CPRS by the end of this year, and has reiterated its commitment to the CPRS commencing in 2010.
Action points
- Businesses should familiarise themselves with the contents of the green paper, and prepare for the implementation of the Carbon Pollution Reduction Scheme in 2010.
- Businesses should closely monitor developments in Government policy as 2010 approaches, and, where applicable, business should consider making submissions to the Government
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