Non-compliance with carbon market rules could result in substantial penalties

by Dentons
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[co-author: Josh Shneer - Summer Student]

Introduction

Ontario’s cap and trade program, which launched in January 2017, includes a number of rules regarding participation in the carbon market where emission allowances and offset credits are bought and sold. The stated purpose of these market rules is to protect the "integrity, accountability and transparency of the province’s cap and trade program."1 The rules are intended to prevent market abuse and include prohibitions against insider trading, tipping, bid coordination, unlawful disclosures, fraud and market manipulation.

Strict enforcement of the market rules will be required to ensure confidence in the market. Issues related to fraudulent activities severely impacted the European Union Emission Trading System between 2008 and 20092 and led to an estimated CA$5 billion in tax losses.3 In addition, a secure market is a prerequisite to linkage with the Québec and California carbon markets, and any other regional markets that might emerge.

Market participants should ensure they are familiar with all rules governing their conduct in the carbon market – both the administrative requirements and the prohibitions related to buying and selling allowances and offset credits. Contravention of the market rules is an offence under the Climate Change Mitigation and Low-carbon Economy Act, 2016 (the Act) that could result in the prosecution of organizations participating in the market and individuals acting as their Account Representatives. If convicted, both organizations and individuals are subject to substantial minimum fines.

Actions that could undermine the integrity of the carbon market are serious offences under the Act

The Act sets out a number of prohibitions governing all participants (organizations and Account Representatives) in the carbon market. The prohibitions are similar to those found in securities legislation and are intended to protect the integrity of the market and prevent market abuse. In particular, the Act prohibits4:

  • Tipping – It is prohibited to inform another person (other than in the necessary course of business) of information that has not generally been disclosed and that could reasonably be expected to have a significant effect on the price or value of an emission allowance or credit.
  • Insider trading – It is prohibited for a person to purchase, sell, trade or otherwise deal with emission allowances or credits if the person has knowledge of information that has not been generally disclosed and that could reasonably be expected to have a significant effect on the price or value of an allowance or credit.
  • Disclosure – It is prohibited to disclose whether or not a person will be taking part in an auction or any other information related to the person’s participation in an auction, including the person’s identity, bidding strategy, the amount of the person’s bids and the quantity of emission allowances concerned, and the financial information provided to the Ministry of the Environment and Climate Change (MOECC) in connection with the auction.5
  • Bidding strategy – It is prohibited to coordinate the bidding strategies of more than one prospective purchaser in an auction.
  • Market manipulation – It is prohibited to engage in (or attempt to engage in) activities that could result in a misleading appearance of trading activity in, or an artificial price for, an emission allowance or credit.6
  • Fraud - It is prohibited to engage in (or attempt to engage in) activities that could perpetrate a fraud on any person.7
  • Misleading or untrue statements or information – It is prohibited to make a statement, or provide any information, that is misleading or untrue and would reasonably be expected to have a significant effect on the price or value of an emission allowance or credit.8

Most of these prohibitions are “specified offences” under the Act, meaning they carry minimum penalties. Corporations convicted of a specified offence are subject to a minimum fine of $25,000 for a first offence, $50,000 for a second offence, and $100,000 for subsequent offences. The maximum corporate fine for a first offence is $6 million, which rises to $10 million for subsequent offences.

Individuals convicted of a specified offence are subject to a minimum fine of $5,000 for a first offence, $10,000 for a second offence, and $20,000 for subsequent offences. The maximum individual fine for a first offence is $4 million, which rises to $6 million for subsequent offences. Conviction can also result in imprisonment for up to five years.

Directors and officers may be liable in some circumstances

If a corporation commits an offence under the Act, every director or officer of the corporation who directed, authorized, assented to, acquiesced in, or participated in the offence, or who failed to take reasonable care to prevent the corporation from committing the offence may be found guilty of an offence, whether or not the corporation has been prosecuted or convicted. An equivalent provision in the Environmental Protection Act (EPA) imposes a duty on directors and officers to take all reasonable care to prevent the corporation from discharging, or causing or permitting the discharge of, a contaminant.9 This provision of the EPA has generally been used where a director or officer made operational decisions related to the non-compliance. The MOECC may take a similar approach to enforcement under the Act. This is not one of the “specified offences” described above and so does not carry a minimum penalty.

Strict enforcement in California

Similar to Ontario’s market rules, California's cap and trade legislation prohibits any trading involving a manipulative device; a corner or an attempt to corner the market; and fraud, attempted fraud, or false or inaccurate reports to the California Air Resources Board (ARB).10 As in Ontario, California also prohibits any unauthorized disclosure of whether or not an organization will be participating in an auction. The ARB is responsible for enforcing these market rules.

In 2014, shortly after California launched its cap and trade program, the ARB announced that it had resolved four enforcement cases arising from “negligent errors in the bidding process and improper disclosures of bidding information by auction participants”.11 Several participants were fined for disclosing information to either the public or another third party about their intended participation in an auction. The fines ranged from US$25,000 to US$75,000. In explaining the rationale for enforcement action against Southern California Edison (SCE), ARB stated that “although none of the conduct appears intended to affect the market or benefit SCE, the Air Resources Board must enforce rules to protect the security of cap-and-trade program auctions.”

Strict enforcement in Ontario?

There is a lot riding on the success of the Ontario cap and trade program. The Liberal government has invested significant political capital in launching the cap and trade program and has made action on climate change a significant part of its platform. Allegations of fraud or market manipulation could undermine its credibility leading to the next provincial election in 2018. Economically, a lack of market confidence could influence the compliance approaches of mandatory participants. California, for example, saw a substantial drop off in participation in the emission allowance auctions in the second half of 2016,12 apparently due to a lack of confidence that the California cap and trade regime would survive an ongoing legal challenge.13 Last, but not least, a successful launch of the cap and trade program is essential for Ontario to meet and advance its greenhouse gas emission reduction targets.

These political, economic and environmental pressures will no doubt be felt within the MOECC and could result in a strict approach to enforcement, with little leniency for non-compliance, even where the contravention is unintentional and does not benefit the market participant.

Market participants should ensure that they take advantage of the training opportunities provided by the MOECC and ensure they are familiar with the market rules set out in the Act and its Regulations to guard against any inadvertent non-compliance. Failure to do so could result in significant minimum fines, and no one wants to make history as the first to be prosecuted under new, high-profile legislation.

References
1 Ontario, Cap and trade: program overview
2 European Commission, Ensuring the integrity of the European carbon market: frequently asked questions, Climate Action
3 Europol, Carbon Credit fraud causes more than 5 billion euros damage for European Taxpayer, (9 December 2009)
4 The Act, ss. 28-29.
5 Act, s. 32(7).
6 Act, s. 32(7). Act, s. 29(1)(a); s. 29(2).
7 Act, s. 29(1)(b) s. 29(2).
8 Act, s. 29(3); s. 29(3)(4).
9 EPA, s. 194.
10 California Environmental Protection Agency Air Resources Board, "Cap and Trade: Market Oversight and Enforcement"
11 California Environmental Protection Agency, Air Resources Board, "ARB takes action against cap-and-trade program bidding violations", (14 February 2014)
12 Mark Chediak and Joe Ryan, "California Fights to Save Market Plan to Cut Carbon Emissions" BloombergBusinessweek (8 September 2016)
13 Reed Smith LLP, "Court of Appeal Turns a Careful Eye Toward Challenges to California’s Cap-and-Trade Auction System" Lexology (26 April 2016). See also Jonathan J. Cooper, "Appeals court to decide future of California carbon auctions" The Washington Post (24 January 2017).

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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