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ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT

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ELECTRICITY PRODUCTION FROM INDUSTRIAL WASTE HEAT ( electricity-production-from-industrial-waste-heat )

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NORTH EAST LAW REVIEW 159 3 THE EU REGIME GOVERNING THE ALLOCATION OF FREE ALLOWANCES One of the obvious requirements of an emission trading scheme is the initial availability of tradable allowances.24 The following section describes the methods used to allocate allowances to operators of industrial installations. 3.1 Auctioning and Free Allocation Throughout the first and second trading period 2005-2012, Member States were allowed to auction up to ten per cent of allowances,25 a right which they exercised only reluctantly.26 The vast majority had to be – and was – allocated for free. But, from 2013 on, free allocation is technically supposed to be the exception: ‘Member States shall auction all allowances which are not allocated free of charge’27. However, Article 10a(11) ETS-Directive provides that a share of 80% in 2013 (reducing by equal amounts to 30% in 2020) is to be allocated for free. The value determining the size of the share is called ‘carbon leakage exposure factor’ (CLEF),28 as its purpose is to moderate the exposure of European operators to carbon leakage by introducing the scheme incrementally.29 Year 2013 2014 2015 2016 2017 2018 2019 2020 CLEF 0.800 0.729 0.657 0.586 0.514 0.443 0.371 0.300 The highlighted numbers suggest that, in terms of its share in actual distribution, free allocation will remain more common than auctioning for a few more years. This raises the question whether or not it is misleading to call free allocation an ‘exception’. The Commission estimates that as early as 2013, at least 50% of the total amount of allowances will in fact be auctioned.30 This is possible because the CLEF does not relate to the total amount of allowances, but only to the ‘quantity determined in accordance with the measures referred to in paragraph 1 (of Article 10a).’31 These measures will be discussed in more detail later on; albeit, the quantity of allowances they determine is 24 Stefan Weishaar, 'CO2 emission allowance allocation mechanisms, allocative efficiency and the environment: a static and dynamic perspective' (2009) 24 European Journal of Law & Economics 29, 36. 25 ETS-Directive, art 10 in the version before its amendment by Directive 2009/29/EC. 26 Anne Theo Seinen, 'State aid aspects of the EU Emission Trading Scheme: The second trading period' (2007) (3) Competition Policy Newsletter 100. 27 ETS-Directive, art 10(1). 28 DG-CLIMA, 'Guidance Document no1 on the harmonized free allocation methodology for the EU- ETS post 2012 – General Guidance to the allocation methodology' (Guidance Document 1) (2012) para 5.4.1. 29 DG-CLIMA, 'Guidance Document no5 on the harmonized free allocation methodology for the EU- ETS post 2012 – Guidance on carbon leakage' (Guidance Document 5) (2011) para 3.1. 30 Commission, 'Auctioning'. 31 ETS-Directive, art 10a(11).

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