2017Nu39763 Revocation of Disposition of Refusal to Allocation of Emission Permits

1. Korea Oil Company;

2. Casia Co., Ltd.;

The Minister of Environment (Defendant before Correction: Minister of Trade, Industry and Energy)

Seoul Administrative Court Decision 2015Guhap5370 decided February 2, 2017

September 22, 2017

February 9, 2018

1. All appeals filed by the Plaintiff Oralia Co., Ltd. and appeals filed by the Defendant against the Plaintiff are dismissed.

2. The costs of appeal between the Plaintiff Oral A and the Defendant are assessed against the Defendant, and the costs of appeal between the Plaintiff Oral C&A and the Defendant are assessed against the Defendant.

1. Purport of claim

On December 1, 2014, the Minister of Environment revoked both the 613,120tCO2-eq and the 2,099,065tCO2-eq for the Plaintiff Orala Co., Ltd. and the disposition rejecting the allocation of greenhouse gas emissions in the part of 2,09,065tCO2-eq.

2. Purport of appeal

【Plaintiff Ora Co., Ltd.】

The part of the judgment of the court of first instance that Plaintiff Oralia Co., Ltd. is revoked. On December 1, 2014, the Minister of Environment revoked the disposition of refusal to allocate greenhouse gas emissions from the part of 2,099,065tCO2q to Plaintiff Oralia Co., Ltd.

[Defendant]

The part of the judgment of the first instance against the plaintiff shall be revoked. The claim against the plaintiff shall be dismissed.

1. The reasoning of the judgment of the court of first instance is that the following is dismissed or added among the reasons for the judgment of the court of first instance, and that the reasoning of the judgment of the court of first instance is identical to the part of the plaintiffs in the grounds for the judgment of the court of first instance, except for the addition of the following 2. as to the plaintiff Oral Corporation (hereinafter referred to as the "Plaintiff Oral Corporation") and the defendant's argument (this safety defense). Thus, the grounds for the appeal by the plaintiff and the defendant are cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act (the grounds for the appeal by the plaintiff and the defendant are different from the contents of the plaintiffs and the defendant except for the plaintiff Oralia and the defendant's argument, even if all the evidence presented to the court of first instance and this court are examined, the fact-finding and judgment of the court of first instance are legitimate, and there is no error as alleged by the plaintiffs

0. The "Framework Act on Low Carbon, Green Growth (hereinafter referred to as the "Framework Act") of 4, 8, and 9 are "the former Framework Act on Low Carbon, Green Growth (amended by Act No. 14811, Apr. 18, 2017; hereinafter referred to as the "Framework Act")".

○ 11, the 16th page “B” stated that “The boiler “from 18 to 18” did not have any essential difference from the extension of the boiler facilities of this case, and it is unlawful to treat it differently in violation of the Emission Trading Act, the previous allocation guidelines, and the principle of equality and proportionality.”

0 12, 18 to 13, 14, as follows:

(2) Under the emissions trading system, the competent authority shall allocate greenhouse gas emission permits to a business entity eligible for allocation with or without consideration pursuant to Article 12 (3) of the Emission Trading Act, and a business entity eligible for allocation is only subject to the imposition of a penalty surcharge only when it discharges more greenhouse gases than emission permits allocated pursuant to Article 33 (1) of the Emission Trading Act, and no penalty surcharge shall be imposed on greenhouse gas emissions within the scope of allocated emission permits. Therefore, from the standpoint of a business entity eligible for allocation, a business entity eligible for allocation is practically exempted from the liability to recover and restore the polluted or damaged environment or is exempt from the liability equivalent to the remaining expenses for recovery and restoration after deducting the cost of allocation from the cost of recovery and restoration. In particular, if it allocates greenhouse gas emission permits to a business entity eligible for allocation free of charge, such as this case, it is difficult to view it as infeasible even if it considers that it is permitted for greenhouse gas emissions.

③ Since the industrial revolution, even if an industry recognizes it as a natural right to emit the greenhouse gases such as carbon dioxide generated in the course of production into the atmosphere, it is difficult to view the industrial company’s greenhouse gas emissions as a right naturally recognized by the Constitution or law, today’s day when it is proved that the promotion of global warming is scientifically and its emission trading system is in force (this, the Plaintiffs’ assertion that the emission of greenhouse gases which was not regulated is restricted by the allocation of emission permits, and thus, it is difficult to accept the Plaintiffs’ assertion that the allocation of emission permits is an in personam disposition).

(1) It is difficult to deem that the government's allocation of emission permits is an indivative disposition, even when it allocates limited greenhouse gas emission permits established according to national greenhouse gas reduction targets, taking into account discussions in international society.

⑤ The instant disposition is an administrative disposition that is conducted on the premise of the application of a business entity eligible for allocation, such as the plaintiffs, and is not an administrative disposition that the defendant can unilaterally impose upon him/her even without the application of a business entity eligible for allocation." 14 pages 14, 14, 14, 7, 7, 3, 11, 11, 14, 5, 6, respectively.

0. 51. 3. The following shall be added to:

The competent authority shall hold emission permits in reserve at a certain ratio of total emission permits for a commitment period to allocate emission permits to new visitors and to additionally allocate emission permits for market stabilization under Article 23.

Article 19 (Trading of Emission Permits) (1) Emission permits may be traded by trading or by any other means.

(2) Emission permits shall be traded by converting greenhouse gases into tons of carbon dioxide equivalents, as prescribed by Presidential Decree.

(3) Detailed matters necessary for trading emission permits, such as the minimum trading unit shall be prescribed by Presidential Decree.

Article 33 (Imposition of Penalty Surcharges) (1) If emission permits submitted by a business entity eligible for allocation under Article 27 are less than greenhouse gas emissions certified under Article 25, the competent authority may impose a penalty surcharge not exceeding three times the average market price of emission permits for the pertinent compliance year on the business entity within the extent of one hundred thousand won per ton of carbon dioxide for the shortage.

0. 58. 58. 15. The following shall be added:

Article 8 (Submission of Specifications) (1) A business entity eligible for allocation shall submit to the Minister of Environment a detailed statement that has undergone the verification by the verifying agency within three months from the end of each compliance year, within three months from the date of the end of each compliance year: Provided, That monitoring plans under Article 31 (1) 10 of the Decree shall be submitted after the prior review under Article 9.

(2) A business entity eligible for allocation shall revise past statements submitted in any of the following cases and submit them by electronic means to the Minister of Environment, along with the relevant year statements referred to in paragraph (1) after verification by a verifying institution:

1. Where the rights and duties of a business entity eligible for allocation of greenhouse gas emission permits are succeeded to under Article 40 of the guidelines for the allocation, adjustment, and revocation thereof;

2. Where a change occurs in emission sources or absorption sources of greenhouse gases within or outside the organizational boundary;

3. Where a significant change in greenhouse gas emission quantity, etc. is caused due to changes in the calculation method of emission quantity;

4. Where the Minister of Environment examines or confirms the emission coefficient unique to him/her, or the value thereof is changed";

The "Framework Act on Low Carbon, Green Growth" of the 58th 58th 16th 16th is the "former Framework Act on Low Carbon, Green Growth (amended by Act No. 14811, Apr. 18, 2017)."

2. The further determination of this Court

A. Judgment on the Defendant’s main defense

1) The defendant's assertion

The Plaintiffs filed the instant lawsuit seeking revocation of the disposition rejecting the allocation of greenhouse gas emission permits for the pertinent portion, asserting that the portion to which they should have been properly allocated to the Plaintiffs was not allocated due to the instant disposition. However, even if the instant disposition was revoked, there is no legal basis for additionally allocating emission permits to the Plaintiffs, as it was already completed in advance. Accordingly, the instant lawsuit is unlawful as there is no legal interest in seeking revocation of the instant disposition.

2) Determination

According to Articles 19 and 33(1) of the Emission Trading Act, a business entity eligible for allocation may trade allocated emission permits by means of sale or other means, and when emission permits submitted by a business entity eligible for allocation are less than the actual emission quantity, a business entity eligible for administrative sanctions, such as a penalty surcharge not exceeding three times the average market price of emission permits for the pertinent compliance year, within the scope of 1 KAUU per 1,000,000 won for the shortage thereof, and accordingly, when the disposition of this case is maintained, the Plaintiffs may be subject to administrative sanctions, such as a penalty surcharge, etc., in the future. Accordingly, the revocation of the disposition of this case is likely to affect the plaintiffs' legal relations in the future, and when the plaintiffs are revoked on the ground of illegality of the disposition of this case, it is reasonable to deem that there is a legal interest to seek revocation of the disposition of this case, and it is difficult to view

Therefore, the defendant's main defense is without merit.

B. Determination as to the Plaintiff’s unique assertion

1) The plaintiff Orala's assertion

A) Regarding the power system error of the military production plant

In the statement of greenhouse gases in 2013 of the Plaintiff Oralia, which was the basis of the instant disposition, the amount of electricity consumption from August 8, 2011 to December 2013, 201, which was the base year for allocating the first commitment period to the military production plant. The instant disposition was made on the basis of the failure to modify the said statement, and thus is unlawful.

B) Regarding a military plant power accident

As a result, the indirect greenhouse gas emissions in the year 2013 were significantly reduced. Nevertheless, the Defendant, without considering such special circumstances, made the instant disposition based on a sudden reduced emission amount in the year 2013, which is the last year of the base year, in violation of the principle of proportionality, thereby lacking equity and concrete validity.

C) In relation to the allocation of early reduction performance, the Defendant’s act of early reduction prior to the emission trading system, without considering the reduction in the Plaintiff’s emission volume, conducted the allocation on the premise of the base year only, and then recognized the results of early reduction as emission permit only approximately KRW 50% without recognizing the whole outcomes of early reduction in the additional allocation, was treated as unfavorable to the above Plaintiff than the business entity eligible for allocation that did not make any effort to reduce with the business entity eligible for allocation that did not meet the emission target prior to the emission trading system, and is in violation of the principle of proportionality.

2) Determination

A) Regarding the power system error of the military production plant

(1) Facts of recognition

(A) On December 26, 2013, the president of the Korea Military Power Station requested the Military Industry Center to improve the measuring and measuring instruments due to the omission of measurement by the failure to measure the power measuring devices, and suggested measures to measure the normalization of measurement devices and the error rate measurement methods. In addition, the measures to improve the measuring instruments for the normalization of measurement devices can be taken before January 10, 2014, and if the error rate measurement is delayed, the amount of electric power usage will be adjusted to the amount of electric power usage obtained by subtracting the loss of the electric transmission from the power generation.

(B) Korea Electric Power Station and the Plaintiff Orcasi Factory agreed on the omission of measurement by means of the “Agreement on the Error of the Error of the Military Industry,” which was 16,197,135,740 won from August 25, 201 to December 31, 2013, which was at the time of occurrence of error, before and after February 4, 2014, the Plaintiff Orcasi Factory agreed on the omission of measurement. The amount of charge was determined as 16,197,135,740 won from August 25, 2011 to December 31, 2013, and the final correction and settlement was made by applying the error rate calculated by comparing and improving the amount of electricity calculated for 15 days before and after the normalization of measurement devices.

(C) On December 22, 2014, Plaintiff Oralia filed an objection against the allocation of emission permits on the grounds of a request for correction of the amount of electric power used at a military plant in 2013. However, on February 6, 2015, the Defendant notified the result that “it is difficult to change allocation based on a different amount of emission” is calculated based on a detailed statement reported by an enterprise in accordance with the relevant statutes.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 32 to 35, 43 to 45, and the purport of the whole pleadings

(2) Determination

In light of the following circumstances acknowledged by comprehensively considering the purport of the entire pleadings, the instant disposition is not deemed to have any error related to the error and correction of the specification in 2013, as alleged by the Plaintiff Austria. Therefore, this part of the Plaintiff’s assertion is without merit.

① Article 8(2) of the former Guidelines on the Report and Certification of Quantity of Greenhouse Gas Emission Trading System (amended by the Ministry of Environment No. 2016-103, Jun. 8, 2016) provides that a business entity subject to allocation shall submit a revised statement submitted in the past by the business entity subject to allocation, such as “where a change occurs in greenhouse gas emission sources or absorption sources or absorption sources inside or outside the organizational boundary (Article 2016-103),” “where a change occurs in the legal theory on the calculation of greenhouse gas emissions, etc. (Article 2)” or “where a change occurs in the emission volume, etc. due to a change in the legal theory on the calculation of emission volume, etc. (Article 3). However, since

② On December 26, 2013, the president of the Korea Military Power Station notified the head of the Military Industry Center of the Plaintiff, the president of the Korea Military Power Station of the omission of measurement, and the Plaintiff, the Plaintiff, under the already recognized recognition of the existence of the error as to the existence of the error, decided to settle the error through mutual agreement between the Korea Military Power Company and the Korea Military Power Company. As such, the Korea Military Power Company, the Plaintiff, and the Orcia Factory resolved the error problem through mutual agreement, not through objective measurement of the error, and thus, it is difficult to view the error alleged by the Plaintiff, as objectively accurate values. As such, there was no verification by the verifying institution.

③ On March 11, 2014, Plaintiff Orala filed an objection against the allocation of emission permits on the grounds of a request for correction of the amount of military plant electricity consumption in December 22, 2014, which was the date of the instant disposition, even though the Plaintiff agreed on the error rate and fare with the Korea Military Affairs Institute of Military. Considering that the instant disposition is an administrative disposition based on the premise of the application filed by a business entity eligible for allocation, such as Plaintiff and Oralia, the Defendant is bound to dispose of emission permits based on the specifications submitted before the instant disposition, and thus, it cannot be deemed that the instant disposition was taken without granting the Plaintiff an opportunity to submit the said specifications to the Plaintiff.

④ Plaintiff Oral was aware of the necessity of the amendment of the specification due to the foregoing reasons and sought advice from the Information Center of Greenhouse Gases regarding the procedures for the amendment thereof on September 2014. However, it is insufficient to recognize the Plaintiff’s assertion by itself, and it is also difficult to view that there was any error in the disposition of this case solely on the ground that the Plaintiff was unaware of the procedures for recommendation given by questioning the Information Center of Greenhouse Gas.

B) In light of the following circumstances, which are acknowledged by comprehensively taking account of the content of the Gu allocation guidelines related to military plant power accidents and the purport of Gap evidence 46 as a whole, even if the Plaintiff’s use of electricity in the military plant was suspended for a certain period of 2013, which is the last year from August 20, 2013 to September 5, 2013, even if the Plaintiff’s use of electricity in the military plant was recorded 0 in the 2013 unit, such circumstance alone is difficult to deem that the instant disposition lacks equity and concrete feasibility in violation of the principle of proportionality.

Therefore, this part of the Plaintiff’s argument is without merit.

① The Plaintiff’s power-using facilities of a military production plant falls under “electric power-using facilities of a place of business, which are not separately reported within a standard year,” and thus, according to the method of calculating the reasonable amount of greenhouse gas emission for each business entity in attached Table 1 [1] 5] and other facilities’ anticipated greenhouse gas emissions for the pertinent compliance year. According to this, the Plaintiff’s calculation of the estimated amount of greenhouse gas emissions for the pertinent compliance year is prescribed based

(2) However, the former allocation guidelines provide for exceptions that "if the amount of greenhouse gas emissions in the last year of the base year of a facility for power use is not more than 50 percent of the annual average amount of greenhouse gas emissions in the base year, the annual average amount of greenhouse gas emissions in the base year may be calculated as the estimated amount of greenhouse gas emissions in the pertinent compliance year," the former allocation guidelines are prepared in preparation for changes in the last year of the base year and secure concrete feasibility.

③ The Plaintiff appears to have not applied the foregoing exceptional provision because the amount of greenhouse gas emissions in 2013, which was the last year of the base year, was less than 50/100 of the annual average amount of greenhouse gas emissions in the base year, even though the temporary suspension of operation was made in the case of the Military Industry Factory, was considered not to have caused significant impacts on the expected greenhouse gas emissions in the compliance year calculated on the basis of the year 2013. Therefore, it is difficult to deem that the foregoing exceptional provision existed to the extent that there was an inappropriate reason for the application of the former allocation guidelines, or that the

C) On February 2, 2017, Plaintiff Oralia asserts that the Defendant’s additional allocation on February 2, 2017, as to the allocation of earlier reduction performance, is an allocation of the same first commitment period by dividing the same emission permits into the prior allocation and the additional allocation, and thus, is not a separate disposition.

However, as seen earlier on December 1, 2014, the instant disposition means the disposition that the Defendant allocated greenhouse gas emission permits to the Plaintiff, as seen earlier, regarding the portion of the Plaintiff’s application volume, and the additional allocation on February 2, 2017, added the early reduction performance that was previously reduced prior to the implementation of the emissions trading system to the first commitment period. Therefore, it cannot be deemed that the instant disposition, which was the prior allocation on December 1, 2014, included additional allocation as of February 2, 2017, is reasonable to view it as a separate disposition (the instant Plaintiff’s assertion against the Defendant separately through an administrative appeal claim against the additional allocation on February 2, 2017).

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit, without further proceeding to determine the remainder of the argument.

3. Conclusion

Therefore, the claim against the plaintiff shall be accepted on the ground of its reason, and the claim against the plaintiff shall be dismissed on the ground of its reasoning. Since the judgment of the court of first instance is just and consistent with this conclusion, all appeals against the plaintiff's appeal and the appeal against the defendant against the plaintiff shall be dismissed. However, since the competent authority of the allocation of emission permits under Article 6 of the Enforcement Decree of the Emission Trading Act, which was amended by Presidential Decree No. 28562, Dec. 29, 2017, was changed to the Minister of Environment, the defendant shall be corrected as the Minister of Environment by applying the proviso of Article 14 (6) and Article 13 (1) of the Administrative Litigation Act, and it is so decided as per Disposition.

The presiding judge, senior judge

Judges Shin Jin-hee

Judges Lee Jae-chul

1) The competent authority shall hold a certain percentage of total emission permits in reserve for the allocation of emission permits to new visitors and additional allocation of emission permits to stabilize the market (Article 18 of the Emission Trading Act). The government shall establish a national emission trading plan including matters concerning the number of reserve emission permits and standards for allocation (Article 5 of the Emission Trading Act). According to the above state emission trading plan, the reserve allocation plan includes adjustment of allocation based on the result of an objection to the allocation of emission permits in advance (Article 1-1 of the evidence (Article 1-1). Thus, there is room to deem that allocation according to the request for revocation of the instant disposition, which is a prior allocation of emission permits, can be adjusted accordingly.