The Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

Directive 2003/87/EC of the European Parliament and of the Council(1) (“the EU ETS Directive”) established a scheme for greenhouse gas emission trading within the European Union, and was transposed in the United Kingdom by the Greenhouse Gas Emissions Trading Scheme Regulations 2005(2). The EU ETS Directive was amended so as to include aviation activities in the scheme, by Directive 2008/101/EC of the European Parliament and of the Council(3) (“the Aviation ETS Directive”). Commission Decision 2007/589/EC(4) (“the Monitoring and Reporting Decision”) established guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to the EU ETS Directive, and was amended to include guidelines in relation to aviation activities. These Regulations transpose the Aviation ETS Directive, and the Monitoring and Reporting Decision so far as it relates to aviation. They extend to the United Kingdom.

The Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2009(5) (“the 2009 Regulations”) transposed parts of the Aviation ETS Directive, to establish a procedure enabling UK operators to apply for a free allocation of allowances for their participation in the emissions trading scheme. (A “UK operator” is a person identified in a list drawn up by the European Commission as an operator to be administered by the United Kingdom.) The 2009 Regulations also imposed obligations on an aircraft operator to apply for an emissions plan; monitor emissions in each year from 2010; and verify and report those emissions by 31st March in the following year. These Regulations revoke the 2009 Regulations, but with certain savings, in particular in respect of the provisions allowing UK operators to apply for a free allocation for their participation in the scheme before the end of 2020.

Regulations 3 to 7 define “aircraft operator”, “regulator” and “authority” for the purposes of these Regulations. An aircraft operator is a UK operator that performs, or is deemed to perform, an aviation activity. The regulator is either the Environment Agency, the Scottish Environment Protection Agency, or the chief inspector in Northern Ireland; and the corresponding authority is either the Secretary of State or Welsh Ministers, the Scottish Ministers, or the Department of the Environment in Northern Ireland.

Regulations 8 to 13 apply where a UK operator wishes to apply for a free allocation of allowances after 2020. Provision is made for the regulator to issue a benchmarking plan to a UK operator; the UK operator must then monitor its tonne-kilometre data in accordance with that plan in the relevant benchmarking year, and submit a verified report of that data to the regulator.

Regulations 14 to 17 apply where an eligible UK operator wishes to apply for a free allocation of allowances from the special reserve provided by Article 3f of the EU ETS Directive. An operator that is new to the scheme, or increases its tonne-kilometre data by a specified amount over a certain time period, is eligible to apply for such an allocation.

Regulations 18 to 21 require aircraft operators to submit an application to the regulator for an emissions plan; to monitor emissions in accordance with a plan approved by the regulator in each calendar year from 1st January 2010; and to submit a verified report to the regulator of the monitored emissions by 31st March in the following year.

Regulation 22 requires the regulator to determine the emissions of an aircraft operator where the aircraft operator has failed to comply with its obligations to submit a report containing its verified emissions to the regulator.

Regulation 23 requires a regulator to ensure that emissions plans include conditions obliging aircraft operators to comply with requirements of the Monitoring and Reporting Decision (so far as not already covered by other provisions of these Regulations). For that purpose, the regulator must draw up a list of the conditions that it will include. A regulator must consult on its proposed list, and regulators may do so jointly. The list may be amended from time to time, and emissions plans may be amended to bring them into conformity with the list (including the list as amended). Under regulation 24, operators must comply with those conditions included in their emission plans. Regulation 25 gives the regulator further powers to vary the emissions plan of an aircraft operator and to charge a fee for doing so.

Regulation 26 requires aircraft operators to surrender allowances or project credits equal to their emissions (and regulation 27 defines what is meant by “project credits”).

Regulation 28 gives effect to Schedule 1, which provides for charges for functions carried out by the regulator.

Regulation 29 gives the regulator the power to serve a notice on UK operators requiring the operator to provide information to the regulator.

Regulations 30 to 41 make provision for the imposition of a civil penalty where a person does not comply with their obligations under regulations 18 to 21, 24, 26, 29, 47 or 51(4), or makes a false or misleading statement in a report under regulation 12 or 21 or in an application under regulation 16.

Regulations 42 to 48 make provision for the detention and sale of aircraft by the regulator where a UK operator has not paid a civil penalty imposed on it, or where the European Commission has imposed an operating ban on an operator (including operators that are not UK operators). Schedule 2 sets out the steps that the regulator must take before applying to the court for leave to sell an aircraft.

Regulation 49 makes provision for the regulator to publish the names of aircraft operators that do not comply with the obligation to surrender allowances.

Regulation 50 makes provision for the Secretary of State to request the European Commission to impose an operating ban on an aircraft operator; and regulation 51 gives the regulator powers to enforce an operating ban imposed by the European Commission on any operator.

Regulations 52 and 53 make provision for appeals against various notices, decisions or deemed refusals of the regulator. Schedules 3, 4 and 5 contain provisions relating to the procedure for appeals and for delegating appellate functions under these Regulations.

Regulation 54 gives the authority the power to issue guidance to the regulator relating to the discharge of the regulator’s functions under these Regulations or under the 2009 Regulations.

Regulation 55 makes provision for keeping information under these Regulations confidential.

Regulation 56 gives effect to Schedule 6, which contains provisions on the giving or service of notices.

Regulation 57 makes provision relating to the submission of reports and plan applications.

Regulation 58 makes provision for the functions of the regulator in Northern Ireland, the chief inspector, to be delegated.

Regulation 59 requires the Civil Aviation Authority to provide assistance and advice to the regulator where requested.

Regulation 60 revokes the 2009 Regulations, with savings, in particular for provisions that apply in relation to applications for a free allocation of allowances in the trading periods 2012, and 2013 to 2020. It also contains transitional and transitory provisions.

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Department of Energy and Climate Change’s Climate and Energy: Europe Division (telephone [phone]), and is published alongside the instrument and its Explanatory Memorandum on the legislation website of The National Archive (http://www.legislation.gov.uk). A transposition note setting out how these Regulations, and the 2009 Regulations, implement the relevant provisions of the Aviation ETS Directive and the Monitoring and Reporting Decision is annexed to that Explanatory Memorandum.

(1)

OJ No L 275, 25.10.03, p. 32.

(2)

S.I. 2005/925, amended by S.I. 2005/2903, 2006/737, 2007/465, 2007/1096, 2007/3433 and 2010/1513.

(3)

OJ No. L 8, 13.1.2009, p. 3; other amendments to the EU ETS Directive are noted in a footnote to p. 5 above.

(4)

OJ No. L 229, 31.8.2007, p. 1; amended by Commission Decision 2009/339/EC (OJ No L 103, 23.4.2009, p. 10).

(5)

S.I. 2009/2301.