외국의 배출권거래제 시행에 따른 법적 쟁점 분석

Abstract

Analysis of Legal Issues Involved in Emissions Trading Schemes of Selected Foreign Countries The Korean government has established the Framework Act on Low-carbon Green Growth and the Enforcement Degree of the Act, which both came into effect on April 14, 2010. The Law includes a system of mandatory reporting of carbon emission by all carbon and energy-intensive industries. It also provides a basis for the creation of a greenhouse gases (GHG) trading system. Mandated by this law, the Government has been recently discussing the deployment of a GHG emissions trading scheme that is most suitable and effective under the Korean economy conditions. Against this backdrop, this paper seeks to identify major issues involving GHG emissions trading scheme, analyze legal dispute cases of the European carbon trading schemes, and suggest policy recommendations for the Korean legislative preparation of its own trading scheme in the near future. Generally, the most important factors to be considered in the emissions trading law is to stipulate fundamental concepts and standards for the legal nature of emissions permits, the scope of applicable entities, and the methodologies for allocation so that the law minimizes potential confusion and disputes. It also needs to create a fair and robust domestic carbon market which is comparable with the international markets. The regulatory capability of relevant authorities to verify the compliance is also important in law making process. More precisely, following suggestions are recommended for the legislation of the Korean GHG trading scheme. First, the legal scheme should ensure the “the least-harm” principle. A cap-and-trade system by nature restricts the freedom of business, which is considered as one of fundamental rights of individuals and business entities. Thus, the scheme should balance the public benefit and the consequential harm to the business caused by the restriction of carbon emissions. The policy-mix with other schemes and incentives would be an appropriate approach. The limited scope of applicable entities as well as the gradual timeline with a sufficient preparation period should be considered. Second, it would be the most appropriate to define the legal nature of emission permits as “a special right to emit greenhouse gases or carbon equivalence within a particular period.” Emissions permit has both characteristics of “natural liberty” and “property right” because it regains the emissions right once restricted and also receives economical benefits through a trading scheme. To recognize the “dual” legal nature of emissions permit and to define it as a special right would minimize any potential legal disputes in legal interpretations under the private and public laws. Third, the clear standard for the scope of applicable entities or facilities should be prescribed by law. Without a rational and reasonable ground for setting the threshold for entities and facilities to be applicable to the new scheme would risk the principle of equity. Thus, various careful considerations should be ensured in policy setting, such as different marginal reduction costs among different industries, opportunities for voluntary participations for the benefit of economies of scale, and access to expert advice and evaluation of applicability for those in question. Fourth, a key method or methodology for emissions allocation should be prescribed in “laws” as opposed to by administrative regulations. How to allocate initial emissions limits is the most critical decision in designing carbon trading scheme. A clear standard for compliance factors, used in calculating allocation by industries and by facilities for an adequate adjustment measure, should be also prescribed in laws for minimizing any potential disputes. This is a critical issue to avoid over-allocation, which have been major problems in the European trading scheme. A special treatment for early action, elimination of double-counting in the industrial process, and the requirement of the best applicable technology (BAT) should be also considered. Lastly, the administrative regulations of the emission trading law should include the criteria and standard for the treatment of business related confidential information which may adversely affects the regulated entities. Also, the law should consider creating a special fund to cover administrative fees involved in emissions trading. The fact that only the regulated entities are imposed to pay such fees may risk the principle of equity. A special fund under the law could be generated by the sale proceeds of emissions reserve or the tax revenue from unregulated entities.