Głowacki Law Firm

Climate-Energy Legislative Package
Emission factor and sustainability of biomass under the new M&R Regulation
Wednesday, 18 July 2012 21:26


Impact Assessment accompanying the new M&R Regulation underlines that as of 2013 the term “biomass” will mean biomass, bioliquids and biofuels within the meaning of Renewable Energy Directive 2009/28/EC including sustainability criteria for biofuels and bioliquids.

Important to note that the first reference to “biomass” constitutes “EU ETS biomass”, the second reference refers to the Renewable Energy Directive 2009/28/EC definition of biomass, while the reference to sustainability criteria is only intended in connection with biofuels and bioliquids deemed sustainable in accordance with Directive 2009/28/EC; NOT other forms of (solid or gaseous) biomass.


There are the key considerations as pursuant to Annex IV of Directive 2003/87/EC and Article 38(2) of the new M&R Regulation the emission factor of biomass is zero.


The above legal developments mean, however, that comparing the current legal status of the biomass under the EU ETS rules with that in the third trading period (as of 2013) an important change to a definition of zero-rated biomass will follow i.e. requirement for biofuels and bioliquids to meet sustainability criteria contained in Directive 2009/28/EC in order to qualify for zero rating.


Last Updated on Saturday, 26 January 2013 20:45
Poland's request for a continued free allocation approved but is this really the end of the game?
Saturday, 14 July 2012 11:25

The question may be posed, how the Commission intends ‘to provide legal certainty to the Member States, the power generators concerned and the market on the quantity and terms of the transitional free allocation in the situation, where the issue is not decided yet due to required and not made State aid assessments?


Recycling and highest value-added and resource-efficient products favoured over bioenergy
Monday, 04 June 2012 06:36


Another regulatory switch? Are biomass power plants in jeopardy?


State aid rules regarding carbon leakage sectors adopted - more flexibility for production planning
Friday, 25 May 2012 19:33


Unlike the previous versions of the Guidelines, in the final text the 40% threshold for the production increases and decreases in the definitions for baseline output and baseline electricity consumption, is not relevant.

In effect of the changes made in that regard, the installations will have greater flexibility in planning production without being restricted with stiff and cut-off 40% threshold.


How does the allocation for a heat producer change when its consumers enter or leave the scope of ETS during the baseline period
Tuesday, 13 March 2012 17:17

It is possible that a non-ETS heat consumer becomes an ETS heat consumer and vice versa. The legal effects for such changes are specified in the guidance document.


What exactly has the ITRE Committee adopted on 28 February 2012 as regards withholding allowances as from third phase
Monday, 05 March 2012 19:32

The question that is today particularly vital for the CO2 trading community: do elaborations of the ITRE Committee included in the Compromise Amendment No 18 have any direct impact on the current trading conditions with respect to CO2 allowances?


The Draft Report of 28 October 2011 on a Roadmap for moving to a competitive low carbon economy in 2050 – the potential breakthrough in European climate policies?
Tuesday, 15 November 2011 13:11


With respect to the Emissions Trading System the Draft Report ‘acknowledges that the carbon price is very much lower than was originally envisaged and is failing to provide the necessary investment stimulus’, and proposes to recalibrate the ETS before the commencement of the third phase by setting aside allowances to restore scarcity.

The Draft Report presents also some other quite revolutionary theses, notably the modification of 1.74% annual linear reduction factor, the reserve price for the auction of allowances, reducing greenhouse gas emissions from agriculture, time limits for new sources of electricity generation emitting more than 100g CO2/kWh and border adjustment measures requiring importers of products in carbon leakage sectors to purchase allowances – all of them of potential fundamental impact on European industries.


The takeover of the heat supply – implications for allocations of CO2 allowances
Wednesday, 14 September 2011 06:09


The emissions trading complicates sometimes things the were quite simple so far.

This contention (burdened, some may say, with obviousness) is, however, properly reflected in a practical situation where one heat producer undergoes the significant capacity reduction, or partially or even entirely ceases its operations and the supplies of the heat to the district heating pipelines are taken over by another heat producer which, in turn, must invest in new capacities (which consequently constitutes significant capacity extension in the meaning of the European Commission’s Decision determining transitional Union-wide rules for the harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of 27 April 2011).


First come, first served – is this the best formula for the allocation of free emission allowances from the 5% reserve?
Wednesday, 07 September 2011 05:38


The free allowances as of 2013 will be allocated on a first come, first served basis – this simple and short assertion produces, however, significant business and legal risks, in particular whether the pool of allowances in the 5% reserve does suffice for all interested in new investments (for instance in high-efficiency cogeneration).


Mysterious allocation to the heat benchmark sub-installations being new entrants
Thursday, 07 July 2011 18:04


The unknown capacity utilisation factor (differing across Member States), the first come, first served rule as regards allocation from the new entrants reserve and the flexible grounds for the rejection by the European Commission of the preliminary total annual amount of emission allowances submitted by the Member States – all these circumstances cause that the potential investors have no legal certainty how to valuate the relevant factors and have to assess in their projections the risks stemming from this fact.


Exclusion of small installations and hospitals from EU ETS – time for conclusive decisions
Tuesday, 21 June 2011 20:56

Article 27 of the Directive 2003/87/EC (as amended by the Directive 2009/29/EC) allows for the exclusion of small installations (subject to equivalent measures) from EUETS.

These small installations will have a chance to avoid administrative burdens and costs (resulting from the participation in the scheme) only, if governments act quickly. 30 September 2011 is a key deadline in that matter.

The creative Guidance Document n°6 on the harmonized free allocation methodology for the EU-ETS post 2012 – does the word “predominantly” have legal significance?
Wednesday, 15 June 2011 18:03

The Decision does not use the word “predominantly” in the context of the special allocation procedures for private households and does not contain explicit provisions that would enable the differentiation of factual circumstances with 25 apartments and 2 shops from 25 apartments and 3 shops.


Multiple heat producers, heat network and multiple consumers – how to collect data on carbon leakage exposures?
Monday, 13 June 2011 06:00


Is the heat distributor legally entitled to deliver data on the heat consumer’s carbon leakage status to the heat producer assuming that the agreement between the heat distributor and heat consumer does not regulate the matter?


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Cap-and-Trade Schemes


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