The Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Regulations 2019

Insertion of regulations 58ZA and 58ZB U.K.

22.  After regulation 58, insert—

“Exceeding the maximum amount for an Article 27a installation

58ZA.— (1) The operator of an Article 27a installation is liable to the civil penalty in sub-paragraph (2) where in any scheme year the installation exceeds the maximum amount.

(2) The civil penalty is (A – B) x C, where—

A is the reportable emissions arising in the scheme year; B is the maximum amount; C is the carbon price for that year.

(3) In this regulation, “maximum amount” has the meaning given in paragraph 1(a) of Schedule 5A.

Carrying out regulated activity without the necessary permit

58ZB.— (1) Where the regulator is satisfied that the operator of an Article 27a installation has—

(a) exceeded the maximum amount in any scheme year; and

(b) failed to notify the regulator under paragraph 4(1) of Schedule 5A,

the operator of the installation (“P”) is subject to the civil penalty in paragraph (2) in respect of any penalty year.

(2) Subject to paragraph (3), the civil penalty is A + (B x C), where— A is the estimated amount of the costs avoided by P in any penalty year as a result of carrying out a regulated activity without the necessary permit; B is the estimated amount of reportable emissions from the installation in the period during which a regulated activity was carried out without the necessary permit; C is the carbon price for that penalty year.

(3) In imposing the penalty under paragraph (2), the regulator may increase the amount determined under that sub-paragraph by a percentage designed to ensure that the penalty exceeds the amount of any economic benefit that P has obtained as a result of carrying out a regulated activity without the necessary permit.

(4) The authority must exercise powers under F1 ...M1 regulation [F2 40] of the Northern Ireland Regulations M2 to give the regulator directions as to—

(a) the estimation by the regulator of A and B in paragraph (2); and

(b) the exercise of the regulator's powers under paragraph (3).

(5) In this regulation—

(a) “maximum amount” has the meaning given in paragraph 1(a) of Schedule 5A;

(b) “necessary permit” means the Article 27 [F3 installation emissions] permit or the greenhouse gas emissions permit which P would have been required to comply with under paragraph 5(3)F4 ... or (4) of Schedule 5A if P had not failed to notify the regulator under paragraph 4(1) of that Schedule;

(c) “penalty year” means any scheme year during which P would have been required to comply with the conditions of the necessary permit, if P had not failed to notify the regulator under paragraph 4(1) of Schedule 5A.”.

Textual Amendments

F1 Words in reg. 22 omitted (31.12.2020 immediately before IP completion day) by virtue of The Greenhouse Gas Emissions Trading Scheme (Withdrawal Agreement) (EU Exit) Regulations 2020 (S.I. 2020/1369), regs. 1(2), 44(f)

F2 Word in reg. 22 substituted (31.1.2020) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2020 (S.I. 2020/18), regs. 1, 13(2)(a)

F3 Words in reg. 22 inserted (31.1.2020) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2020 (S.I. 2020/18), regs. 1, 13(2)(b)(i)

F4 Word in reg. 22 omitted (31.1.2020) by virtue of The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2020 (S.I. 2020/18), regs. 1, 13(2)(b)(ii)

Commencement Information

I1 Reg. 22 in force at 1.1.2021, see reg. 1(4)

Marginal Citations

M1 1972 c. 68. Section 2(2) was amended by section 27(1) of the Legislative and Regulatory Reform Act 2006 (c. 51) and by section 3(3) of, and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c. 7).

M2 Under section 57 of the Scotland Act 1998 (c. 46), despite the transfer to the Scottish Ministers of functions in relation to observing and implementing obligations under Community law in respect of devolved matters, any function of the Secretary of State in relation to any matter continues to be exercisable as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972. And similarly, under paragraph 5 of Schedule 3 to the Government of Wales Act 2006 (c. 32), despite the transfer to the Welsh Ministers of functions under section 2 of the 1999 Act so far as exercisable in relation to Wales (except in relation to offshore oil and gas exploration and exploitation), those functions continue to be exercisable by the Secretary of State in relation to Wales for such purposes.