Can California Cap and Trade if Brussels Stumbles?

by Sheppard Mullin Richter & Hampton LLP

Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A high profile failure of the EU ETS is likely to provide ammunition to critics California’s cap-and-trade program.

An emissions offset or emissions allowance (representing the right to emit one metric ton of CO2 or GHG equivalent, or CO2e) within EU ETS is no longer trading at values that promote investment in low carbon technologies, and therefore the EU ETS is not presently serving its core purpose. The trading value of an EU Emissions Allowance was above €30 per metric ton in 2008 before the sharp impacts of the global recession. Prices halved in late 2008 and early 2009 and hovered around €15 for two years until 2011. Then prices began a steady decline to €10, then €5, and now even less. It is understood by energy and climate economists that if emissions allowances can be purchased for less than €10, a cap-and-trade system will have little if any effect on the pollution abatement decisions of heavy emitters because the allowances would be cheaper than virtually all known or developable emissions abatement technologies. Indeed, such rock bottom prices may have the effect of promoting high-emitting technologies that should be discouraged. At issue is an oversupply of credits: (i) the EU was too generous in its granting of free allowances; (ii) international offsets from the tradable credit programs under the United Nations Framework Convention on Climate Change (including the Clean Development Mechanism) outstripped demand; and (iii) the global recession reduced the demand for energy and thereby the demand for credits, which drives pricing.

The EU Parliament recently voted whether to defer the issuance of a portion of new emissions allowances (referred to as “backloading”) in order to constrain supply and raise prices. When the final votes were tallied, the backloading proposal was rejected by a narrow margin. It is said that carbon markets viewed the outcome as a vote of no-confidence in the future viability of the EU ETS, which had pushed the trading price of allowances to the current price of less than €3 per metric ton. The backloading proposal will likely be reconsidered by the EU Parliament early this summer, but its prospects are uncertain. While it is impossible to reduce the basis for opposing backloading to a single idea, it seems that, even in Europe, there is almost irresistible pressure to give economic growth precedence over reducing emissions; and it appears that Europe, much like the United States, is still struggling with the question of whether the two objectives (economic growth and emissions reduction) can be simultaneously advanced.

For at least two reasons, the European experience does not bode well for California’s fledgling carbon market. First, it demonstrates the difficulty of creating a market in tradable rights to undertake a previously unregulated activity. The cost of emitting greenhouse gasses has heretofore gone unaccounted for and been externalized. A cap-and-trade system creates scarcity in the right to emit and allocates those rights for free or fee to regulated entities. While cap-and-trade may be a “market-based” solution, the allocation of emissions allowances is, in fact, a political decision that produces winners and losers. Thus, the true test for the political viability of a cap-and-trade system is when the emissions allowances are no longer given away; the EU ETS was beginning to enter this phase, and the strength of the opposition from the heavy emitters predictably increased. The California Legislature has delegated the difficult political decision of allocation to the California Air Resources Board, which partially insulates the allocation decision from political pressure; however, the scope of the delegation to CARB arguably undermines the legitimacy, and possibly the legality, of CARB’s cap-and-trade decisions. Second, the California Legislature viewed it to be in California’s best interest to be a leader in regulating carbon (and in policy circles, a leader in cap-and-trade) on the assumption that other states and the federal government would follow. A high profile failure of carbon cap-and-trade across the Atlantic would be a setback for the prospects of a national policy being implemented in the near future, and the cost of leading when there are no followers might not be one the majority of Californians will be willing to pay.

Parties interested in the fate of California’s cap-and-trade system will likely be following this developing story in Europe and waiting for another EU vote, which is expected to come early this summer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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