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Carbon Matters SPRING 2013 CARBON MATTERS The Climate Change supplement to SHE MATTERS from DLA Piper UK LLP IN THIS ISSUE RECENT NUCLEAR DEVELOPMENTS CLIMATE CHANGE AGREEMENTS CRC UPDATE MANDATORY CARBON REPORTING AND IMPROVED ENVIRONMENTAL DISCLOSURE In BRIEf – AVIatIon IN the EU ETS & The Green Deal CARBON MATTERS Teresa Hitchcock Partner T +44 (0)114 283 3302 [email protected] At the end of last year, many expressed disappointment at How does the UK fare in this respect? It has to be the outcome of the Doha Conference, particularly understood that since the UK was a pioneer in this representatives of the developing countries who have respect in enacting the Climate Change Act, we can criticised the “lack of ambition” in decisions on mitigation realistically only expect consolidation in current and finance. developments, rather than revolutionary change. However, on the positive side, it should be said that the This edition of Carbon Matters reviews a number of the conference did agree a second Kyoto commitment period consolidating measures being taken by the Coalition to run for eight years, rather than five, with reduction Government: Support of the Carbon Price through the commitments to be reviewed by 2014. This provides an Energy Bill, the new scheme for Climate Change essential underpinning of the international carbon market. Agreements, the Simplification of the CRC Energy Efficiency Scheme and Mandatory Carbon Reporting. It should be pointed out that the Doha Conference was The Government has so far decided not to follow the only envisaged as a transitional conference on the way to more radical suggestions put forward last year by a future global agreement and it did also adopt a the CBI and others, that the CRC scheme should be two-pronged strategy towards a new global climate scrapped and replaced by a reformed Climate Change treaty in 2015, the timeline envisaged in the Copenhagen Levy and more widespread mandatory carbon reporting. Accord. The two-pronged strategy rests on action at It was argued that this would not only deal with the national level as well as international negotiations. It is complexity of the CRC scheme, but also create wider increasingly recognised that national legislation is a incentive effects. That may be an appropriate longer term key confidence-building measure, as domestic legislation goal, but the abolition of the CRC scheme would cause generally involves more tightly-binding commitments. considerable disruption. Furthermore, treaty obligations entered into on this basis will more closely reflect what the parties are It would also be frustrating for those who have put so actually prepared to deliver on. much energy into devising and complying with the scheme. The Government has chosen to compromise in retaining Arguably this was the true lesson of the Copenhagen the CRC scheme, introducing mandatory carbon reporting COPMOP. When the discussions of the rival texts broke on a modest scale, and making new arrangements for down, the COPMOP was rescued by the Accord Climate Change Agreements. For the time being, business between China, Brazil, India, South Africa and the certainty is the watch-word. We may also have here a US countries which between them were estimated to classic case of British muddling-through. account for some 85 per cent of global greenhouse gas emissions. This was constructed on the basis of the As this edition was going to press, an unexpected cause pre-COPMOP co-operation between the US and China, for alarm arose from a vote by MEPs, in a narrow majority which focussed on what they were prepared to deliver. of 19 votes, to reject a Commission proposal to support carbon prices in the EU ETS by delaying auctioning of In terms of national developments, there are significant allowances. While the proposal would have been at best a grounds for optimism. The recent Globe International temporary fix, and no real substitute for structural reform Climate Legislation Initiative surveyed domestic climate of the EU ETS, as sought by the UK Government, the vote change legislation in 33 countries. These countries are also sends an unfortunate signal to markets. It is to be hoped estimated to represent about 85 per cent of greenhouse that it will be reversed following further discussion at the gas emissions. The survey found that all of them except next meeting of the Parliament’s environment committee. Canada either had enacted, or were in the course of enacting, important climate change legislation. 02 | Carbon Matters – Spring 2013 RECENT NUCLEAR DEVELOPMENTS REGulatory develoPments of offshore wind will drop so much it will be on par with nuclear by 2020, there is no rationale for allowing Recent months have seen a number of developments in Hinkley C to proceed.” the UK nuclear sector, including some important regulatory developments. The Energy Bill includes the introduction of Contracts for Difference (CfDs), which the Government believes will On 29 November 2012, the Energy Bill 2012-13 was address both revenue and policy risk by guaranteeing introduced to Parliament and had its first reading in the long-term prices for the energy generated from nuclear House of Commons. The Bill provides for the creation of power stations through private law contracts (which the Office for Nuclear Regulation (ONR) as an cannot be changed retrospectively by future governments). independent statutory body, which will consolidate civil The intention is that CfDs will work by stabilising revenues nuclear and radioactive transport security regulation in for generators at a fixed price level known as the “strike one place. The Bill provides for the ONR to take over the price” (the price that generators will receive for each unit HSE’s responsibilities and functions in respect of nuclear of energy produced). safety, nuclear site health and safety, security, safeguards and transport of radioactive material. However, there is some uncertainty around the strike price, which will to a large extent be dictated by the The Bill also includes provisions creating civil liability for anticipated construction costs of the new nuclear reactor breaches of duties imposed by nuclear regulations that and its associated infrastructure. The strike price must be cause damage, irrespective of whether such breach also pitched correctly so that consumers receive a fair and constitutes an offence. A person who has suffered loss as affordable deal, but it must also be attractive to developers a consequence, such as personal injury, would be entitled and investors. The strike price would provide a guaranteed to sue for damages (unless regulations provided price for say 20 or 40 years (subject to what is agreed), otherwise). It will not be possible for persons to contract which would protect consumers from the often volatile out of such civil liability, although defences to such a civil energy market. However, the strike price, which is action may be provided for in any nuclear regulations. currently being negotiated, will require very careful The European Commission, on 7 March 2013, published an consideration by the Government because the wrong overview of the action taken in nuclear safety since the figure could lead to a huge additional cost to consumers. Fukushima nuclear disaster in Japan. All 14 member states Evidence to Parliament in 2012 suggested that a figure out with nuclear power plants and Switzerland have now by just £5 MW/hour could result in an additional cost of prepared national action plans which include timetables for £4 billion to the consumer by 2030. implementation. These plans will be peer-reviewed by Greenpeace also raised voiced concerns around the issue national teams at the end of April 2013. The Commission of nuclear waste. This is certainly a live issue, taking into and European Nuclear Safety Regulators Group will account that Cumbria County Council’s Cabinet recently review the status of the implementation of the decided that West Cumbria should no longer be recommendations for nuclear safety by June 2014. considered as a potential location for a deep geological CommercIal develoPments repository to dispose of higher activity radioactive waste and the two districts of Copeland and Allerdale should be In February, it was reported that Centrica had withdrawn excluded from further consideration in the Government’s its plans to take part in the building of new nuclear Managing Radioactive Waste Safely process. reactors, blaming spiralling costs and delays. This follows the previous departure of Scottish and Southern Energy, It seems that the raft of regulatory measures in the Energy and German utility firms E.ON and RWE from the process Bill demonstrates that lessons have been learnt in the UK, in September 2011 and March 2012 respectively. post-Fukushima. Although there have been some drawbacks in the nuclear new build plans, the granting of In March, Energy Secretary, Ed Davey told MPs in the planning consent for Hinkley Point C is a step forward and Commons that he was granting planning consent for one which will set the precedent for the future of nuclear the French energy giant EDF to construct Hinkley Point C power generation in the UK. in Somerset. The proposed £14 billion power plant would be capable of powering five million homes and For further information, please contact: Mr Davey described it as “of crucial national Nicholas Rutherford importance”. However, this decision does not come Solicitor without controversy. Greenpeace executive director T +44 (0)114 2833042 John Sauven said “With companies now saying the price [email protected] Carbon Matters – Spring 2013 | 03 CLIMATE CHANGE AGREEMENTS CLIMATE CHANGE AGREEMENTS On 1 April 2013, a new scheme for Climate Change Agreements commenced operation. Climate Change Agreements provide a means for businesses which have certain energy-intensive facilities to mitigate their liability to Climate Change Levy, the tax levied on energy suppliers and passed on to their customers, in respect of the non-domestic consumption of certain types of energy (electricity, gas, solid fuel and liquid gas).
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