The EU ETS: current problems and possible ways to move forward drs. Stefan Weishaar, M.Sc., LL.M. Metro, University Maastricht

Outline The EU ETS The EU ETS Present situation and current problems Present situation and current problems Possible ways to move forward Possible ways to move forward

The EU ETS

EU Action Since 1991 Commission is taking action to reduce GHG emissions and improve energy efficiency Since 1991 Commission is taking action to reduce GHG emissions and improve energy efficiency –Renewable energy –Voluntary commitments (car makers) –Taxation (energy products and electricity) In 2000 launch of European Climate Change Program (ECCP) to meet Kyoto Protocol goals of reducing emission levels during 2008 – 2012 to 8 percent below 1990 levels In 2000 launch of European Climate Change Program (ECCP) to meet Kyoto Protocol goals of reducing emission levels during 2008 – 2012 to 8 percent below 1990 levels

Measures of the 1 st phase of the ECCP Measures of the 1 st phase of the ECCP –Proposal for ratifying the Kyoto Protocol –Proposal for establishing the EU ETS –Regulating certain fluorinated gases –Action Plan: linking EU ETS with CDM and JI

The EU ETS European Emission Trading System (EU ETS) is a part of the ECCP European Emission Trading System (EU ETS) is a part of the ECCP –1 st January 2005 –5000 operators – installations –Sectors: energy, ferrous metals, minerals, pulp and paper –Time periods: 2005 – 2007 (learning by doing phase (!)) 2005 – 2007 (learning by doing phase (!)) 2008 – 2012 (Kyoto) 2008 – 2012 (Kyoto) 5 year periods 5 year periods

EU ETS peculiarities 15 Old MS: Burden sharing agreement 15 Old MS: Burden sharing agreement 10 New MS: Kyoto commitments 10 New MS: Kyoto commitments Malta and Cyprus: Malta and Cyprus: –Very few installations –No Kyoto commitments => bound by EU ETS, business as usual scenarios

Directive 2003/87/EC Obliges MS to: Obliges MS to: –Identify operators –Monitoring, Verification and Reporting –Draw up a ‘National Allocation Plan’ =>Allocate emission allowances - subject to: criteria listed in Annex III - subject to: criteria listed in Annex III –Legislative tool Directives are binding upon their result but leave choice of form and methods, Article 249 EC Treaty

Learning by doing (!) Commission wants legislative changes to take effect 2013 Commission wants legislative changes to take effect 2013 Review working group under ECCP II => legislative proposals in 2007 Review working group under ECCP II => legislative proposals in 2007 Review process considers post Kyoto period and international context Review process considers post Kyoto period and international context

Present situation and Current problems

Present situation 21 Member States do have an electronic registry 21 Member States do have an electronic registry –99% of allowances (9000 installations) complied with Directive as of 30 April 2006 –320 million allowances were traded –6.5 billion Euros –Greenhouse gas emissions lower than expected Success or over allocation?

Problematic issues Price signals Price signals Linking EU ETS and ‘Kyoto’ Linking EU ETS and ‘Kyoto’ Design choices Design choices –Scope –New entrants –Windfall profits –Closure and transfer rules

Long run price signal Long run prices -> trigger behavior Long run prices -> trigger behavior –Sufficiently high prices –Price stability –Predictability

Price fluctuation is normal Price fluctuation is normal –Allocation rules –Compliance –Supply and demand –Emission cap –Political developments –Alternative supply sources

EAU price development Source: Unannounced pre-release of verified emissions data

May 2006 unannounced pre-release of verified emissions data by several Member States May 2006 unannounced pre-release of verified emissions data by several Member States Lower than expected actual level of emissions Lower than expected actual level of emissions Current price below 10 cents Current price below 10 cents Oversupply of perhaps 160 million tons CO2 Oversupply of perhaps 160 million tons CO2 Dim prospects for environmental effectiveness in the 1 st trading period… Dim prospects for environmental effectiveness in the 1 st trading period…

EAU futures Source:

Scarcity in the 2 nd phase Market seems to expect sufficient scarcity in phase 2 – despite linking Market seems to expect sufficient scarcity in phase 2 – despite linking –Strong political massage at G8 meetings –Downward corrections of allocations demanded by Commission, ca. 9% –8 Member States have taken / consider taking legal action: Lithuania, Malta, Poland, Hungary, Czech Republic, Slovakia, Estonia and Latvia –Preliminary question from a French Court to the ECJ => non-coverage of aluminum and plastics industries vs. principle of equal treatment

Linking EU ETS and ‘Kyoto’ The Linking Directive (2004/101/EC) grants MS discretion to allow operators to use CERs (from CDMs, 1 st period) and ERU (from JIs, as of 2008) for their EU ETS obligations The Linking Directive (2004/101/EC) grants MS discretion to allow operators to use CERs (from CDMs, 1 st period) and ERU (from JIs, as of 2008) for their EU ETS obligations Percentage is based on the allocation to each firm Percentage is based on the allocation to each firm

Limits for usage of CERs and ERUs binding upon installations are expected to be wide Limits for usage of CERs and ERUs binding upon installations are expected to be wide For the second trading period they average around 11.5% For the second trading period they average around 11.5% 220 million tons of Kyoto Mechanisms can be imported annually 220 million tons of Kyoto Mechanisms can be imported annually Despite Commission’s reductions, supply surplus of 6% ( ) if contrasted to actual demand in 2005 Despite Commission’s reductions, supply surplus of 6% ( ) if contrasted to actual demand in 2005

Supplementarity: Supplementarity: Meaningful reduction domestically? Kyoto Protocol binding upon states Kyoto Protocol binding upon states If margins for EU ETS sectors are set widely => other sectors have a higher burden

Environmental soundness Allowing CDMs under EU ETS may give rise to leakage Allowing CDMs under EU ETS may give rise to leakage –Additionally criterion –Environmental integrity Credible baseline to quantify reductions Credible baseline to quantify reductions Monitoring Monitoring Verification Verification Compliance Compliance Impact assessment + evaluation of projects done by host country (partly assessed by CDM Executive Board) Impact assessment + evaluation of projects done by host country (partly assessed by CDM Executive Board) Disincentives to promulgate environmentally stringent legislation? Disincentives to promulgate environmentally stringent legislation?

Distortions of Competition If prices of CERs and ERUs are lower than EAUs and MS legislation differs -> distortions of competition If prices of CERs and ERUs are lower than EAUs and MS legislation differs -> distortions of competition –Lower operating costs –Windfall profits

Market price Unless demand during lies at least 6% above the 2005 emissions EAU prices would be comparable to those of CERs and ERUs Unless demand during lies at least 6% above the 2005 emissions EAU prices would be comparable to those of CERs and ERUs Price incentive sufficient to trigger environmentally friendly behavior? Price incentive sufficient to trigger environmentally friendly behavior? Yet: low cost burden on industry mitigates leakage Yet: low cost burden on industry mitigates leakage

Design choices Directive Directive Cap and trade system Cap and trade system Scrutiny by the Commission Scrutiny by the Commission –Criteria Limitation of auctioning => free allocation mandatory (‘grandfathering’) Limitation of auctioning => free allocation mandatory (‘grandfathering’) Ex post allocations Ex post allocations

Scope of the Directive Definitions / criteria are vague => different interpretations of the legal text Definitions / criteria are vague => different interpretations of the legal text Different allocation methodologies => comparable installations are treated differently Different allocation methodologies => comparable installations are treated differently Distortions of competition, distortions between sectors, impacts on the Common Market, scope of covered industries Distortions of competition, distortions between sectors, impacts on the Common Market, scope of covered industries

New entrants Directive obliges MS to include rules for new entrants in NAPs Directive obliges MS to include rules for new entrants in NAPs Commission’s guidance note Commission’s guidance note –Buying –Auctioning –Reserve + free allocation Commission’s position: Commission’s position: Having new entrants pay satisfies equal treatment because new entrants do not incur stranded costs, and subsequently benefit from free allocation => cost burden limited Having new entrants pay satisfies equal treatment because new entrants do not incur stranded costs, and subsequently benefit from free allocation => cost burden limited

Not affording equal treatment can give rise to: Not affording equal treatment can give rise to: –Direct financial disadvantage –Barriers to entry Higher consumer prices Higher consumer prices X-inefficiency X-inefficiency

Equally authentic language versions of the Directive differ in clarity Equally authentic language versions of the Directive differ in clarity –Obligation to take into account the need…(England) –Necessity to keep allowances available… (Netherlands) Substantial differences in relative size of new entrance reserves Substantial differences in relative size of new entrance reserves Different strategies to deal with depletion of reserves Different strategies to deal with depletion of reserves Incumbent top performers can receive up to 10% more allowances while new entrants cannot Incumbent top performers can receive up to 10% more allowances while new entrants cannot

MS seek to attract new entrants MS seek to attract new entrants Allocation for free makes environmentally friendly technology less attractive Allocation for free makes environmentally friendly technology less attractive Need for scrutiny and harmonization Need for scrutiny and harmonization

Windfall profits Overcompensating incumbents for stranded costs is seen as ‘unfair’ Overcompensating incumbents for stranded costs is seen as ‘unfair’ Ability to generate windfall profits is unevenly distributed Ability to generate windfall profits is unevenly distributed –Dependent upon demand elasticities –Competition on the market

Closure and transfer rules The European legislator did not regulate discontinuation of production and not address transfers from one plant to another The European legislator did not regulate discontinuation of production and not address transfers from one plant to another MS enjoy discretion MS enjoy discretion –Distortions of competition –Environmental incentives

Netherlands Netherlands –Scraping production or transfer => retaining of allowances for the whole period ( ) Receiving allowances on different production statistics Receiving allowances on different production statistics Operator may enjoy new entry benefits from another MS Operator may enjoy new entry benefits from another MS => comparative advantage vs. new entrants and incumbents

Germany Germany –Transfer => retaining of allowances for 1 year only if replacement installation in Germany Eligibility -> distortions of competition Eligibility -> distortions of competition Free movement of companies (?) Free movement of companies (?)

Summary The EU ETS does not (yet?) provide a stable and sufficiently high market price that encourages environmentally friendly research and investment The EU ETS does not (yet?) provide a stable and sufficiently high market price that encourages environmentally friendly research and investment –Over allocation –Information asymmetry Sobering experience of 1 st trading phase but price of 2 nd period is strongly positive Sobering experience of 1 st trading phase but price of 2 nd period is strongly positive

Substantial amounts of CDMs and JIs Substantial amounts of CDMs and JIs –Environmental effectiveness? –Distortions of competition –Sufficient cost incentive? Clear preference for free allocation Clear preference for free allocation –Heterogeneous interpretation of the Directive –Distortions of competition –Differential treatment of new entrants –Diverging Closure and transfer rules –Windfall profits

Possible ways to move forward

Policy considerations Information Asymmetry Member StatesRent seeking

Grandfathering: Grandfathering: –Support of covered sectors –MS are able to protect domestic interests –Lack incentives for operators to reveal true valuations => information asymmetry –Environmental effectiveness questionable if EAU price is low

Performance Standard Rate Performance Standard Rate –Credit and trade approach No Windfall profits No Windfall profits No unequal treatment of new entrants No unequal treatment of new entrants No distortions from closure and transfer rules No distortions from closure and transfer rules Emphasizes competition on the merits Emphasizes competition on the merits –Credit and trade criticized as less efficient than cap and trade –Relative targets more acceptable

PSR and EU ETS PSR and EU ETS –PSR must operate under cap-and-trade Long trading period reduces rent seeking costs Long trading period reduces rent seeking costs Effective adjustments of benchmarks Effective adjustments of benchmarks –Ex post adjustments Emissions dependent upon production => no direct link between installation and EAU to be allocated at the start of the trading period => at odds under current ex post interpretation Emissions dependent upon production => no direct link between installation and EAU to be allocated at the start of the trading period => at odds under current ex post interpretation

PSR preferable to grandfathering PSR preferable to grandfathering –Contingent upon Rent seeking costs Rent seeking costs Costs of negotiations Costs of negotiations Benchmark adjustment costs Benchmark adjustment costs Benefits of exposed sectors vs. disadvantages of sheltered sectors? Benefits of exposed sectors vs. disadvantages of sheltered sectors?

PSR PSR –May mitigate / avoid some shortcomings of grandfathering –May foster support of industry –Political support? –Rent seeking costs / operating costs? –Information asymmetry remains

Only market based instruments can overcome information asymmetry Only market based instruments can overcome information asymmetry –Auctions gain more attention in the second trading period but remain limited to 10% under the present Directive –Lack of political support –Lack support of industry

Thank you for your kind attention!