2020 No. 1369

Exiting The European Union
Climate Change

The Greenhouse Gas Emissions Trading Scheme (Withdrawal Agreement) (EU Exit) Regulations 2020

Made

Laid before Parliament

Coming into force in accordance with regulation 1(2)

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 8B and 8C of the European Union (Withdrawal) Act 20181.

PART 1Introduction

Citation, commencement and interpretation1

1

These Regulations may be cited as the Greenhouse Gas Emissions Trading Scheme (Withdrawal Agreement) (EU Exit) Regulations 2020.

2

These Regulations come into force immediately before IP completion day.

3

In these Regulations “the 2012 Regulations” means the Greenhouse Gas Emissions Trading Scheme Regulations 20122;

PART 2Implementation of withdrawal agreement in relation to electricity generation in Northern Ireland from 2021

Amendments to the 2012 Regulations2

The 2012 Regulations are amended in accordance with regulations 3 to 42.

Limitation of application of legislation3

After regulation 1 insert—

Application1A

From 1st January 2021 these Regulations apply in Northern Ireland only, in relation to any emissions created on or after that date, from a regulated activity at an installation, by the generation of electricity in Northern Ireland for the single wholesale electricity market in Ireland and Northern Ireland.

Review of Regulations4

In regulation 2—

a

in paragraph (1), for “Secretary of State” substitute “DAERA”;

b

in paragraph (2)—

i

for “Secretary of State” substitute “DAERA”,

ii

omit “other”.

Interpretation5

In regulation 3—

a

in the definition of “allowance”, omit—

i

in paragraph (a), “in this regulation”,

ii

paragraph (b) and the “but” which precedes it;

b

for the definition of “authority” substitute—

  • “authority” means DAERA;

c

after the definition of “current operator” insert—

  • “DAERA” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;

d

in the definition of “fee”, omit paragraphs (a) and (b);

e

in the definition of “permit” omit “and paragraph 7(12) of Schedule 6”;

f

after the definition of “the Registries Regulation 2013”3 insert—

  • “the Registries Regulation 2019” means Commission Delegated Regulation (EU) 2019/1122 of 12 March 2019 supplementing Directive 2003/87/EC of the European Parliament and of the Council as regards the functioning of the Union Registry, as amended from time to time4;

g

in the definition of “registry account” omit “or an aircraft operator holding account”;

h

in the definition of “regulated activity” omit “(other than an aviation activity)”;

i

for the definition of “regulator”, substitute—

  • “regulator” means the chief inspector;

j

in the definition of “reportable emissions” omit paragraph (b) and the “or” which precedes it;

k

omit the following definitions—

i

aviation activity,

ii

aviation allowance,

iii

aviation emissions,

iv

aviation emissions plan,

v

banned non-UK operator,

vi

commercial air transport operator,

vii

exempt non-commercial air transport operator,

viii

the Free Allocation Decision,

ix

the Free Allocation Regulation5,

x

non-commercial air transport operator,

xi

the NRBW,

xii

the NRBW Order,

xiii

offshore installation,

xiv

offshore petroleum installation,

xv

the Offshore Regulations6,

xvi

offshore storage or unloading installation,

xvii

SEPA,

xviii

sub-installation,

xix

UK administered operator,

xx

UK aircraft operator;

l

for paragraphs (3) and (4) substitute—

3

For the purposes of these Regulations, an installation has ceased operation if—

a

a regulated activity is no longer being carried out at the installation; and

b

it is technically impossible to resume operation.

Designations6

In regulation 87—

a

in paragraph (1)—

i

for “The Environment Agency” substitute “DAERA”,

ii

for “2013”8 substitute “2019”;

b

in paragraph (2), for “2013 (other than Articles 25(3) and 34(6))” substitute “2019 (other than for Articles 22(3) and 30(7))”;

c

for paragraph (3) substitute—

3

DAERA is the competent authority so designated for the purposes of—

a

Article 28(1);

b

Article 30(8);

c

Article 30(11); and

d

Article 66(1).

d

in paragraph (8) omit “Subject to paragraph (9),”;

e

omit paragraphs (9) and (10).

Transfer of permits7

In regulation 12(4) omit “Subject to paragraph 3(2)(b) of Schedule 4,”.

Transfer of permits: underreporting discovered after transfer8

After regulation 12 insert—

Transfer of permits: underreporting discovered after transfer12A

1

This regulation applies where—

a

after the transfer of a greenhouse gas emissions permit under regulation 12 takes effect, the regulator becomes aware, following a determination of reportable emissions under regulation 44, of an error in a report submitted for a scheme year by the transferring operator under the monitoring and reporting requirements of the permit; and

b

as a result of the error, the transferring operator failed to comply with the surrender requirements of the permit in respect of the scheme year to which the error relates.

2

The regulator must give notice to the transferring operator of the error as soon as reasonably practicable.

3

The transferring operator must, within the period of one month beginning with the date the transferring operator received the notice, effect a transfer to the new operator of allowances equal to the reportable emissions in respect of which, as a result of the error, the transferring operator failed to comply with the surrender condition of the permit.

4

The new operator must surrender the allowances within the period of one month beginning with the date of the transfer of the allowances.

5

In paragraph (1), the reference to the transfer of a permit under regulation 12 includes a reference to an application for a transfer of a permit to which effect is given by a variation of the new operator’s existing permit.

6

In this regulation—

a

“transferring operator” means the person who was the current operator for the purposes of regulation 12; and

b

“new operator” has the same meaning as in regulation 12.

Surrender of permits9

In regulation 13—

a

after paragraph (1) insert—

1A

Where a permit authorises regulated activity to be carried out at an installation where a regulated activity is no longer being carried out but it is not technically impossible to resume operation, the operator of the installation may apply to the regulator to surrender the permit.

b

for paragraphs (2) and (3) substitute—

2

An application under paragraph (1) must be made before the end of the period of one month beginning with the date that the regulated activities at the installation ceased, or such later date as may be agreed with the regulator.

Omission of regulations10

Omit—

a

regulation 15(3)(b) and the “and” which precedes it9;

b

regulations 16 to 40; and

c

regulations 42A and 42B10.

Enforcement notices11

In regulation 43(2), omit sub-paragraph (d) and the “or” which precedes it.

Determination of emissions12

In regulation 4411—

a

in paragraph (4)—

i

in sub-paragraph (a), omit “or UK aircraft operator”,

ii

in sub-paragraph (b), omit “(or of the UK aircraft operator)”;

b

in paragraph (5)—

i

in sub-paragraph (a), for “Article 35(6) of the Registries Regulation 2013”12 substitute “Article 31(6) of the Registries Regulation 2019”,

ii

in sub-paragraph (b), omit “in regulation 35(3) or”;

c

in paragraph (5A), omit “or UK aircraft operator”;

d

in paragraph (5C)—

i

in sub-paragraph (a), omit “or UK aircraft operator”,

ii

in sub-paragraph (b), omit “(or of the UK aircraft operator)”;

e

in paragraph (5D)(a), omit “or UK aircraft operator”;

f

in paragraph (6), omit “or UK aircraft operator”.

Provision of information13

In regulation 45—

a

in paragraph (1), omit “or the Secretary of State”, in both places;

b

omit paragraph (4)(b) and the “and” which precedes it;

c

omit paragraph (5);

d

in paragraph (6)13, at the end insert—

; or

ea

the Registries Regulation 2019

National security14

In regulation 47, omit paragraph (1)(a) and the “or” which follows it.

Carbon price15

In regulation 49—

a

in paragraph (2), for “For each subsequent scheme year the Secretary of State” substitute “From the scheme year beginning with 1st January 2021, and for each subsequent scheme year, DAERA”;

b

in paragraph (4), for “The Secretary of State” substitute “DAERA”.

Penalty notices16

In regulation 50—

a

in paragraph (2)(d), for “53(2)(b), 56(2)(b), 60(2)(b), 62(2)(b), 63(2)(b), 64(2)(b), 67(2)(b)” substitute “53(3)(b), 56(2)(b)”;

b

in paragraph (3) omit “and to paragraph (4);

c

omit paragraph (4);

d

in paragraph (6) omit sub-paragraph (b) and the “and” which precedes it.

Carrying out regulated activity contrary to regulation 917

In regulation 52(4), omit “section 40 of the Environment Act 1995, article 11 of the NRBW Order or”14.

Failure to comply with a condition of a permit18

In regulation 53—

a

in paragraph (1)

i

in sub-paragraph (a) omit “(but excluding the condition mentioned in paragraph (4) below)”,

ii

in sub-paragraph (c) for “regulation 88(6) or (7)” substitute “regulation 88”15;

b

in paragraph (3)—

i

in sub-paragraph (a) for “£3,750” substitute “£20,000”;

ii

in sub-paragraph (b)—

aa

for “£375” substitute “£500”,

bb

for “£33,750” substitute “£45,000”;

c

omit paragraph (4).

Failure to transfer or surrender allowances where underreporting discovered after transfer19

After regulation 53 insert—

Failure to transfer or surrender allowances where underreporting discovered after transfer53A

1

A person is liable to a civil penalty where the person fails—

a

to effect a transfer (or to effect a transfer on time) of allowances, contrary to regulation 12A(3) (transfer of permits: underreporting discovered after transfer);

b

to surrender (or to surrender on time) allowances, contrary to regulation 12A(4).

2

The civil penalty is the sterling equivalent of 20 Euros for each allowance that the person failed to transfer or surrender.

Failure to surrender allowances20

In regulation 5416—

a

in paragraph (1), omit “or regulation 42A”;

b

in paragraph (2A), omit sub-paragraphs (a) and (b);

c

in paragraph (7)—

i

omit sub-paragraph (a),

ii

in sub-paragraph (ca)—

aa

in paragraph (i), omit “regulation 35(3) or”,

bb

omit paragraph (ii) (but not the “or” which follows it).

Excluded installations21

1

In regulation 57(2), for “£3,750” substitute “£5,000”.

2

Omit regulations 58A and 58B17.

Omission of regulations22

Omit regulations 60 to 67.

Information notices23

In regulation 69(2)—

a

in sub-paragraph (a) for “£1,500” substitute “£5,000”;

b

in sub-paragraph (b)—

i

for “£150” substitute “£500”,

ii

for “£13,500” substitute “£45,000”.

Providing false or misleading information24

In regulation 70—

a

in paragraph (1)—

i

omit sub-paragraphs (b) and (c),

ii

in sub-paragraph (f), omit “or an aviation emissions plan”,

iii

omit sub-paragraphs (g) and (h);

b

in paragraph (2), for “£1,000” substitute “£50,000”.

Appeals: interpretation25

In regulation 72(c) omit sub-paragraph (ii) and the “and” which precedes it.

Rights of appeal26

In regulation 73—

a

in paragraph (2) omit sub-paragraphs (c), (d), (j) to (o)18;

b

in paragraph (3) omit “section 40 of the Environment Act 1985, article 11 of the NRBW Order or”19.

Rights of appeal: registries27

In regulation 74—

a

in paragraph (1) for “2013”20 substitute “2019”;

b

for paragraph (2)21 substitute—

2

Those provisions are—

a

Article 19(4);

b

Article 21(6);

c

Article 22(3);

d

Article 28(5);

e

Article 30(7);

f

Article 80(8).

Appeal body28

In regulation 75—

a

omit paragraph (1);

b

in paragraph (2), after “chief inspector” insert “or the registry administrator”;

c

omit paragraph (3).

Effect of an appeal29

In regulation 76—

a

in paragraph (1) for “(2) to (4)” substitute “(2) and (3)”;

b

omit paragraph (2)(c)(ii), (v) and (vi)22;

c

omit paragraph (4).

Determination of an appeal30

In regulation 77, in paragraphs (2) and (3) for “2013” substitute “2019”23.

Procedure for appeals31

1

In the Chapter heading before regulation 78, omit “Scotland and”.

2

In regulation 78, omit paragraphs (1) to (3).

Union Registry: interpretation32

In regulation 7924—

a

in the Part heading which precedes the regulation, omit “and UK registry”;

b

in paragraph (1) for “2013” substitute “2019”;

c

omit paragraph (2).

Union Registry33

In regulation 8025—

a

in paragraph (2)—

i

for “Article 35(2)” substitute “Article 31(2)”,

ii

omit sub-paragraph (b) and the “or” which precedes it;

b

in paragraph (3), for “Article 35(4) and (5)” substitute “Article 31(4) and (5)”;

c

in paragraph (4)—

i

omit “or the UK administered operator”,

ii

for “Article 16(1) or 17(1)” substitute “Article 14(1)”;

d

in paragraph (5), omit “or the UK administered operator”;

e

omit paragraph (9);

f

in paragraph (10), for “(8) or (9)” substitute “or (8)”;

g

omit paragraph (11);

h

in paragraph (13) omit “pursuant to Article 31”;

i

in paragraph (16) for “extend the suspension of the running of delays under Article 39(3) to all days in a scheme year that are not working days” substitute “decide that national public holidays in Northern Ireland are not working days under Article 35(8)”.

Recovery of fees34

For regulation 82 substitute—

Recovery of fees82

Any fee payable by virtue of these Regulations may be recovered by the regulator as a civil debt.

Guidance35

In regulation 84—

a

omit paragraph (2);

b

in paragraph (3) omit—

i

“, the registry administrator or the KP registry administrator”,

ii

“or (2)”.

Further omission of regulations36

Omit regulations 84A26, 87, 87A27, 87AA28 and 89.

Notices37

In Schedule 2, omit paragraphs 9 and 10.

Applications etc.38

In Schedule 3, in paragraph 1—

a

in sub-paragraph (1)(a)—

i

at the end of sub-paragraph (i) insert “or”,

ii

omit sub-paragraph (iii) and the “or” which precedes it;

b

in sub-paragraph (10) omit paragraph (b) and the “and” which precedes it.

Permits39

In Schedule 4—

a

in paragraph 1(2)—

i

in paragraph (a), omit “Part 1 of the Environmental Protection Act 1990 or”,

ii

in paragraph (b), omit sub-paragraphs (i), (ii), (iii) and the “or” after sub-paragraph (iii);

b

in paragraph 2(7)—

i

omit paragraph (a),

ii

in paragraph (b), omit “capacity, activity level or”;

c

in paragraph 3—

i

omit sub-paragraph (2),

ii

omit sub-paragraph (12).

Article 27 installations40

In Schedule 5—

a

in paragraph 1, omit sub-paragraphs (1) to (3);

b

in paragraph 3—

i

in sub-paragraph (2), omit “section 40 of the Environment Act 1985, article 11 of the NRBW Order or”29,

ii

omit sub-paragraph (3)(c),

iii

in sub-paragraph (4), omit “that is granted in respect of an installation which does not primarily provide services to a hospital”,

iv

omit sub-paragraph (5),

v

in sub-paragraph (6) for “sub-paragraphs (4) and (5)” substitute “sub-paragraph (4)”,

vi

omit sub-paragraph (9),

vii

in sub-paragraph (11) omit “section 40 of the Environment Act 1995, article 11 of the NRBW Order or”30;

c

omit paragraph 4;

d

in paragraph 6—

i

omit sub-paragraph (3)(d),

ii

for sub-paragraph (7)31, substitute—

7

However, the increase in an emissions target under sub-paragraph (4) or (6) may not result in an emissions target which exceeds the maximum amount.

iii

in sub-paragraph (8), omit “section 40 of the Environment Act 1995, article 11 of the NRBW Order or”32,

iv

in sub-paragraph (9)(a) for “a sub-installation’s” substitute “an installation’s”,

v

to the extent that sub-paragraph 9(b) to (d) has been substituted by regulation 29(8)(i) of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Regulations 201933, those substituted provisions cease to have effect (but to the extent that those provisions are to be substituted from 1st January 2021 by that regulation, those amendments are to have effect);

e

in paragraph 7—

i

in sub-paragraph (1), omit “Subject to sub-paragraph (2),”,

ii

omit sub-paragraphs (2) and (3),

iii

in sub-paragraph (5), omit “Except where the excluded installation primarily provides services to a hospital,”;

f

in paragraph 8—

i

for sub-paragraph (1) substitute—

1

Where the regulator is satisfied that the annual reportable emissions from an Article 27 installation have exceeded the maximum amount, the regulator must, as soon as is reasonably practicable, give a notice to the operator.

ii

in sub-paragraph (9) for “2013” substitute “2019”34,

iii

in sub-paragraph (10) for “2013” substitute “2019”.

Omission of Schedules41

Omit Schedules 6 to 11.

Amendment to Schedule 1242

In Schedule 12—

a

in paragraph 1—

i

in sub-paragraph (1)—

aa

after “regulation 73(1)” insert “or 74(1),

bb

after “chief inspector” insert “or registry administrator”,

ii

in sub-paragraph (2) and (3) after “regulator” in both places insert “or registry administrator”;

b

in paragraph 3(1), for “paragraphs (1), (3), (4) and (5) of Article 11 of the Planning (Northern Ireland) Order 1991 apply” substitute “section 204(1), (3) and (4) of the Planning Act (Northern Ireland) 201135 applies”;

c

in paragraph (4) for “a fee; and Article 127(2)(b) of the Planning (Northern Ireland) Order 1991 has effect as if the reference to an appeal under that Order” substitute “any fee for the appeal prescribed in regulations made under section 223(7)(b) of the Planning Act (Northern Ireland) 2011; and for that purpose section 223(7)(b) has effect as if a reference to an appeal under that Act”.

Revocation of regulations43

The following are revoked—

a

the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 201936;

b

regulations 2 to 6 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) (No. 2) Regulations 201937.

Amendments to Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Regulations 201944

In the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Regulations 201938—

a

omit regulation 1(5)39;

b

omit regulation 3(2)(j);

c

in regulation 10, in the provision to be substituted as regulation 14(1)(b)(i) of the 2012 Regulations for “to (3)” substitute “and (2);

d

omit regulations 13 to 16;

e

omit regulation 19(c);

f

in regulation 22, in the provision to be inserted as regulation 58ZB(4) of the 2012 Regulations, omit “section 40 of the Environment Act 1995, article 11 of the NRBW Order or”;

g

omit regulation 23;

h

in regulation 29—

i

omit paragraph (6),

ii

omit paragraph (8)(g),

iii

in paragraph 8(i)—

aa

in the provision to be substituted as paragraph (b) of sub-paragraph (9) of paragraph 6 of Schedule 5 to the 2012 Regulations, for “sub-installation’s”, in both cases, substitute “installation’s”, and for “sub-installation” substitute “installation”,

bb

omit the provision to be inserted as paragraph (c) of sub-paragraph (9) of paragraph 6 of Schedule 5 to the 2012 Regulations,

iv

omit paragraph (9)(a) and (c).

PART 3Implementation of withdrawal agreement other than in relation to electricity generation in Northern Ireland from 2021

Modification of application of 2012 Regulations in the United Kingdom before 202145

1

Save as is provided in regulation 46(1)(b), the 2012 Regulations have effect, so far as they relate to emissions which arose before 1st January 2021, with the modifications specified in paragraph (2).

2

The modifications are—

a

the 2012 Regulations apply as if the following provisions did not have effect—

i

Part 2 of these Regulations,

ii

the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2019,

iii

the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) (No. 2) Regulations 2019;

b

in regulation 3 (interpretation) the definition of “Registries Regulation 2013” is to be read so that references in the 2012 Regulations include, so far as is possible, references to any equivalent provision in Commission Delegated Regulation (EU) 2019/1122 of 12 March 2019 supplementing Directive 2003/87/EC of the European Parliament and of the Council as regards the functioning of the Union Registry;

c

regulation 34 (issue of an emissions plan) applies as if any requirement on the regulator to issue a plan may be satisfied by the regulator serving a notice on A, and as any such notice is to be treated as a plan within the meaning of that regulation;

d

paragraph 6 of Schedule 5 (excluded installations) is to be read is if—

i

in sub-paragraph (5), for “must vary the permit” there were substituted “must serve a notice on the operator”, and any such notice served by the regulator is to be treated as a variation of a permit,

ii

in sub-paragraph (6), for “vary the permit” there were substituted “serve a notice on the operator”, and any such notice served by the regulator is to be treated as a variation of a permit;

e

in Schedule 6 (allocation and adjustment of allowances), paragraphs 6 and 8 do not require the operator to report a significant capacity reduction or a partial cessation of regulated activities (as the case may be), which occurred on or after 1st January 2020;

f

in Schedule 6A (allocation and adjustment of allowances: installations which cease to be excluded installations), paragraphs 7 and 9 do not require the operator to report a significant capacity reduction of an excluded installation or partial cessation of regulated activities of an excluded installation (as the case may be), which occurred on or after 1st January 2020.

3

In the modified application of the 2012 Regulations, terms which are not subject to modification by paragraph (2) are to be interpreted after IP completion day, as they were interpreted before these Regulations came into force, as if the implementation period were still in force.

Application of 2012 Regulations for specific purposes46

1

Nothing in these Regulations limits the application of—

a

the 2012 Regulations, as they had effect before the amendments made by regulations 2 to 42 of these Regulations, for the purposes of Part 3 of the Finance Act 201940;

b

regulation 81 (the UK Registry) of the 2012 Regulations, or any other provision in the 2012 Regulations so far as it relates to the UK Registry.

2

In paragraph (1)(b), “the UK Registry” has the same meaning as in regulation 3 of the 2012 Regulations.

Signed

Kwasi KwartengMinister of StateDepartment for Business, Energy and Industrial Strategy
EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Article 96(2) of the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union (which sets out the arrangements for the United Kingdom’s withdrawal from the EU) (“the withdrawal agreement”), and Article 9 of the Protocol on Ireland/Northern Ireland in the withdrawal agreement (“the Protocol”). They relate to the EU greenhouse gas emissions trading system established pursuant to Directive 2003/87/EC (listed in Annex 4 to the Protocol) implemented in the UK by the Greenhouse Gas Emissions Trading Scheme Regulations 2012 (“the 2012 Regulations”).

Part 2 provides for the continued membership of the EU emissions trading system for generators of electricity for the wholesale market in Ireland/Northern Ireland, by limiting the ongoing application of the 2012 Regulations to that electricity generation. It amends the 2012 Regulations and other provisions which would otherwise amend those Regulations, as appropriate.

Part 3 provides for the ongoing application, with modifications, of the 2012 Regulations in relation to the emissions of greenhouse gases on or before 31st December 2020 and has the effect that operators must comply with the obligations in the 2012 Regulations in relation to emissions in the scheme year ending on that date. Regulation 46 ensures that the 2012 Regulations continue to apply in so far as they relate to the Finance Act 2019, and to the UK Registry, which is the registry that the UK uses to fulfil certain obligations relating to the Kyoto Protocol. Separate instruments will make provision for the control of greenhouse gas emissions and the ending of the rights and obligations contained in the 2012 Regulations after 2020.

A full impact assessment has not been produced for this instrument as no substantial impact on the private or voluntary sector is foreseen.