(영문) 서울행정법원 2017.2.2. 선고 2015구합55493 판결

On December 1, 2014, the Minister of Environment revokes the rejection of the Plaintiff’s allocation of greenhouse gas emissions to tons of carbon dioxide equivalents.

Reasons

1. Details of the disposition;

A. On November 17, 2009, the government announced at the State Council to reduce the total nationwide greenhouse gas emissions in 2020 to 30% of the expected greenhouse gas emissions (BAU) in 2020. To this end, the Framework Act on Low Carbon, Green Growth (hereinafter “Framework Act”) was enacted on January 13, 2010.

B. On April 14, 2010, the Government introduced a target management system that mainly sets and manages targets for reduction of greenhouse gas emissions, energy conservation, and energy utilization efficiency for each controlled entity in accordance with Article 42(5) of the Framework Act and Article 29 of the former Enforcement Decree of the Framework Act on Low Carbon, Green Growth (amended by Presidential Decree No. 24270, Dec. 27, 2012) (hereinafter referred to as “controlled”) to set and manage targets for reduction of greenhouse gas emissions, energy conservation, and energy use efficiency for each controlled entity from 2012 after the pilot operation period for which no target is set in 2011.

C. On May 14, 2012, the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (hereinafter referred to as the “Emission Trading Act”) was enacted to effectively achieve national greenhouse gas reduction targets by introducing a system on the allocation and trading of greenhouse gas emissions permissible (hereinafter referred to as “emission permit”) allocated to individual greenhouse gas-emitting business entities within the total permissible amount of greenhouse gas emissions, or on the allocation and trading of the amount of greenhouse gas emissions allocated to individual greenhouse gas-emitting business entities within the total permissible amount of greenhouse gas emissions (hereinafter referred to as “emission trading system”) to achieve national greenhouse gas reduction targets under Article 42(1)1 of the Framework Act.

D. On January 28, 2014, pursuant to Article 4 of the Emission Trading Act, the Government established a master plan for the first commitment period (hereinafter referred to as “master plan”) for the emission trading system (hereinafter referred to as “first commitment period”) for three years from January 1, 2015, including matters concerning domestic and overseas conditions and prospects for the emission trading system, basic direction for the operation of the emission trading system, and other matters.

E. On September 11, 2014, pursuant to Article 5 of the Emission Trading Act, the Government established a national emission permit allocation plan (hereinafter referred to as “assignment plan”) that includes the total permissible emissions of greenhouse gases established considering national greenhouse gas reduction targets, the total amount of total emission allowances for the pertinent commitment period based on total emission allowances and the total amount of annual emission allowances, and publicly announced on September 16, 201 in order to effectively achieve national greenhouse gas reduction targets.

F. On September 12, 2014, the Plaintiff was designated as a business entity eligible for allocation of emission permits in the petroleum chemical industry (hereinafter “business entity eligible for allocation”) pursuant to Article 8(1) of the Emission Trading Act, as a business entity engaging in manufacturing and selling chemical products, such as rubber chemical products.

G. On October 14, 2014, the Plaintiff filed an application for the allocation of the Defendant’s emission permits to the Minister of Environment (as the Enforcement Decree of the Act on the Allocation and Trading of Greenhouse Gas Emission Permits was amended by Presidential Decree No. 27181 on May 24, 2016, the competent authority changed to the Defendant from June 1, 2016. However, Article 2 of the Addenda of the Enforcement Decree of the said Act provides for a transitional provision that a disposition taken by the former competent authority is deemed a changed act by the competent authority; hereinafter referred to as “Defendant”) for the allocation of the first commitment period of 1,681,562 ton of comparable CO2 equivalents (tCO2-eq; hereinafter referred to as “tCO2eq”), and on December 1, 2014, the Defendant allocated the Plaintiff the following allocation of 1,278,349 KU to the Plaintiff (hereinafter referred to as “the remainder of the Plaintiff’s allocation”).

Unit: KAU

A person shall be appointed.

H. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Defendant, but was dismissed on February 6, 2015.

【Reasons for Recognition】 Each entry in the evidence Nos. 1, 2, 4, 5, 22, Eul Nos. 1, 16, 21, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) procedural defects;

A) Violation of procedures under the Emission Trading Act

Although Article 16 (7) of the former Enforcement Decree of the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (amended by Presidential Decree No. 27181, May 24, 2016; hereinafter referred to as the "former Enforcement Decree of the Emission Trading Act", and Article 16 (7) of the same Act provides that "the competent authority shall determine allocation by business entity eligible for allocation through consultation with the head of the relevant central administrative agency and deliberation and coordination by the Allocation Decision Deliberation Committee under Article 18, the defendant did not undergo such procedures.

B) Violation of procedures under the Administrative Procedures Act

The Defendant rejected the Plaintiff’s application for partial allocation of greenhouse gas emission permits, and did not present the grounds and reasons for the disposition to the Plaintiff.

(ii) substantial defects;

A) The unlawful allocation plan of the allocation plan is unlawful for the following reasons, and the instant disposition based on the illegal allocation plan is also unlawful.

(1) Violation of national BAU computation

The defendant used the State BAU (hereinafter referred to as the "State BAU") calculated by the government at the time of allocation of emission permits in 2009, but the State BAU in 2009 was calculated on the basis of the actual amount of greenhouse gas emissions in 2008 when the domestic economy is threatened due to the depression of global financial crisis, etc., and it is inappropriate to use it in the time of allocation of emission permits under the emission trading scheme in 2015.

(2) When establishing a allocation plan, the illegal government should have calculated the allocation of emission permits by type of business in consideration of the overall emission volume of each type of business and the growth prospects in the country BAU based on the total emission volume of each type of business and future growth prospects, and should have allocated the allocation to business entities eligible for allocation. However, the government did not consider such allocation plan. This goes against the basic principles under the Emission Trading Act that, when establishing an emission trading plan, trade of emission permits should be made fairly and transparently in accordance with the general market trading principles, and the basic principles of fairness that, “a system designed to ensure that the burden of greenhouse gas reductions can be fairly distributed between the applicable sector of emission trading and other sectors, between the industries and the industry.

B) Illegal disposition of the instant case

(1) From August 31, 2013, the Plaintiff, who did not recognize the increase in greenhouse gas emissions, participated in the Ulsan Team N&S project (hereinafter “instant project”), which is a government policy, and increased greenhouse gas emissions by expanding the Plaintiff’s amount of supply to approximately 60 tons per hour at the time. The Defendant did not take into account at all in the instant disposition. Accordingly, the instant disposition was unlawful for the following reasons.

(A) Article 12(1)5 of the Enforcement Decree of the Act on the Trading of Emission Permits, which provides that the anticipated growth rate following the modification of the business plan, shall take into account the expected growth rate of the company superior to the allocation of emission permits. The increase in the amount of supply to the company of the instant facilities according to the instant project constitutes the modification of the business plan, and the modification of the business plan is one of the indices that determine the anticipated growth rate, so the Defendant should have allocated emission permits in consideration of the anticipated growth rate of the Plaintiff’s project in the instant disposition

(b)the basis provisions for the preparation of an application for allocation and the illegality of the application for allocation;

Article 13 (1) of the Emission Trading Act provides that "a plan for expansion and alteration of facilities within the planned period (paragraph 4), a plan for consumption of fuels and raw materials (paragraph 5), and a plan for implementation of the plans prescribed in subparagraphs 4 through 6 (paragraph 7) shall be included in an application for allocation, which reflects "the anticipated growth rate of business entities eligible for allocation" during the planned period (paragraph 4)," but Article 5 (hereinafter referred to as "former Guidelines for Allocation") of the former Guidelines on Allocation, Adjustment, and Revocation of Greenhouse Gas Emission Permits related to the preparation of the application for allocation (the same prior to the abolishment by Ordinance of the Ministry of Environment No. 2016-100, Jun. 8, 2016; hereinafter referred to as "former Guidelines") can only be stated in the application for allocation, which reflects "the anticipated growth rate of business entities eligible for allocation" during the planned period (paragraph 4), and there was no foreseeable change in the plan for consumption, such as fuels, and the estimated increase or decrease of greenhouse gas emissions products following the implementation plan."

The laws and regulations on emission trading do not present any standard regarding the requirements for extension. Therefore, the provision of the requirements for extension in Article 2 Subparag. 16 of the former Allocation Guidelines (hereinafter referred to as "the extension provision") is invalid against the intent of the superior law.

(D) Meeting the requirements of the instant extension clause

Even though the instant extension clause does not go against the purport of superior laws and regulations, the Plaintiff increased its design capacity by physical changes, such as expanding piping networks, etc. for the supply of additional straws to external stampers. Greenhouse gas emissions generated from the instant project also increased by at least 5%. Accordingly, the requirements for extension under the instant extension clause are satisfied, but the Defendant did not reflect it at the time of the instant disposition.

(2) Illegal which uniformly applies the adjustment coefficient of the petroleum chemical industry

In addition to the instant facilities, the Plaintiff has facilities with high eco-friendly and energy efficiency, such as Ecops, the building of the Plaintiff’s headquarters located in Sungnam-si, and ELL, the Plaintiff’s white factory located in Ansan-si. However, without considering such special characteristics of the Plaintiff, the Defendant determined the amount of recognition from the Plaintiff’s emission application quantity, and determined the amount of allocation by applying the adjustment coefficient of the petroleum chemical industry to the recognized amount of emission permit. This is against the emission trading statutes and the principle of equality, and constitutes deviation and abuse of discretionary power.

(b) Related statutes;

It is as shown in the attached Table related statutes.

In full view of the respective descriptions of Gap evidence Nos. 21, 22, Eul evidence Nos. 1, 4 through 11, 16, 30 through 35 (including each number), and the whole purport of pleadings, it can be known that the road map, the basic plan, and the allocation plan have been formulated through the following courses:

1) On May 14, 2012, upon the enactment of the Emission Trading Act, the Ministry of Environment established a preparatory planning group for the emissions trading system, which is an organization exclusively in charge of the emissions trading system, around January 2013, in order to prepare for the emissions trading scheme in force since 2015.

2) On January 2014, the government-related ministries, including the Ministry of Environment and the Ministry of Trade, Industry and Energy, jointly formulated a road map to achieve national greenhouse gas reduction targets (hereinafter referred to as “road map”), including national greenhouse gas reduction targets, national greenhouse gas reduction strategies and promotional tasks, sectoral implementation plans, etc., and held a briefing session on January 17, 2014. The main contents of the road map are as follows.

(III) 1. National Greenhouse Gas Reduction Objectives 1.0.1. National Greenhouse Gas Re-verification 20.1.1. 76.1. eq 2) Greenhouse Gas Re-Verification 3.0.1.0, 76.1.0, 26.1.1.0, 200, 3.2.1.0, 1.2.1.1.0, 3.1.0, 3.1.0, 1.2.1.0, 3.2.0, 1.2.1.0, 3.1.0, 3.00, 1.1.0, 2.1.0, 3.2.0, 1.00, 3.00, 3.00, 1.1.00,000,000,000,000,0000,000,0000,0000,000,0000,000,0000.

A person shall be appointed.

2. national reduction targets on national greenhouse gas reduction terms* 20-year national reduction targets are 30 per cent reduction compared to emission prospects (776.1 million TCO2-eq) and 543.0 million TCO2-eq for the target emission after reduction.

[1] National greenhouse gas emission outlook (BAU) (unit: 00 thousand co2-eq) of the type of business in the national greenhouse gas emission outlook and reduction target sector

A person shall be appointed.

Sector Annual Reductions of Types of Business (unit: %)

A person shall be appointed.

The annual target discharged quantity (14 to 20 years) of the sector’s sector’s sector’s sector’s sector’s sector’s sector’s sector’s sector’s business

A person shall be appointed.

[6] Total evaluation index by detailed reduction plan (draft)

A person shall be appointed.

(3) On December 2013, the Ministry of Strategy and Finance, after holding a public hearing to formulate a basic plan for emissions trading system in the presence of government-related ministries, civic groups, industries, etc., established a basic plan including the domestic and overseas situation and prospects for the emissions trading system, basic direction for the operation of the emissions trading system, operation of the planning period in consideration of national greenhouse gas reduction targets, etc. on January 28, 2014. The main contents of the basic plan are as follows.

1.1.16 summary of the basic plan for the emissions trading system / [1.16 summary of each item] Article 4(2) of the Act concerning the basic direction for the operation of the emissions trading system ② Matters concerning the operation of the trading system, taking into account the details and characteristics of the establishment of the basic plan / Matters concerning the establishment of the national greenhouse gas reduction target trading system * Matters concerning the prospects for emission of greenhouse gases due to economic growth, new investment and expansion of facilities by sector and business type / (BAU) matters concerning the establishment of the total amount of emission permits by the planning period regulated by the international community, taking into account discussions in the international society / (4) details of the basic plan for the emission trading system / (15-24) basic principles for the allocation of emission permits / (15-24) basic principles for the industrial and mid-term allocation of emission permits / (1) basic principles for the allocation of emission permits / (2) basic principles for the industrial and mid-term allocation of emission permits / (3) basic principles for the allocation of emission trading system / [15) basic principles for non-term, including the allocation plan.

(3) In order to ensure fairness in the establishment of policies to support industry allocation of emission permits, (4) operation of the emissions trading system, taking into account operational objectives, national greenhouse gas reduction targets and prospects (I) operation of the emissions trading system, taking into account national greenhouse gas reduction targets into account (I) operation targets and prospects to reduce national greenhouse gas emissions in a transparent and fair manner so as not to exercise market power in allocating and trading emission permits between large enterprises and small-medium enterprises, import and domestic business entities, and (4) operation of the emissions trading system to ensure that national greenhouse gas reduction targets are transparent and fair to achieve 30% reduction targets (BAU), Korea's decision to reduce national greenhouse gas emissions by 20 years to achieve BAU reduction targets (BAU) 20 years, taking into account the prospects of BU and sector emission reduction targets, (3) development of detailed measures such as reduction rates by sector, etc. (7.7.7) 20 years outlooks) 20 million (27.2.167 million) reduction targets by sector).

4) On May 9, 2014, the “private advisory group on allocation plan” comprised of experts, civic groups, research institutes, etc., held a meeting of the entire and sub-councils at least six times from May 1, 2014 to May 16, 2014. The Ministry of Environment prepared a allocation plan that reflects the recommendations of the non-governmental advisory group on allocation plan, and held a hearing on May 29, 2014, including the contents such as Daejeon, Daegu, and Gwangju, the total permissible emission allowances for the planning period, and the emission allowances allocation standards, from May 29, 2014 to June 2, 2014.

5) On June 2, 2014, the planning group for preparation for the emissions trading system established a detailed method for calculating the allocation by type of business of the allocation plan. The Ministry of Environment, from June 17, 2014 to July 14, 2014, held a briefing session for each type of business in order to gather industrial opinions. From July 8, 2014 to July 9, 2014, held an explanatory meeting for the executive officers of business entities eligible for allocation.

6) The Ministry of Environment, after deliberation by the Green Growth Committee and the State Council, finalized the allocation plan on September 11, 2014. The main contents of the allocation plan are as follows:

A person shall be appointed.

D. Determination

1) Whether procedural defects are procedural defects

A) Whether the procedure under the Emission Trading Act is violated

Comprehensively taking account of the respective descriptions and arguments of the evidence Nos. 38 and 39 (including each number), the Defendant may recognize the fact that the Defendant decided a allocation ditch by business entity eligible for allocation through deliberation and coordination with the Minister of Strategy and Finance, the Minister of Government Policy, the Minister of Trade, Industry and Energy, and the Minister of Trade, Industry and Energy on November 19, 2014, prior to the instant disposition pursuant to Article 16 of the former Enforcement Decree of the Emission Trading Act, and through deliberation and coordination with the Allocation Decision Deliberation Committee on November 28, 2014. Accordingly, the Plaintiff’

B) Whether the procedure is in violation of the Administrative Procedures Act

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for the disposition to the relevant party when rendering a disposition, and the purport is to exclude the arbitrary decision of the administrative agency and to enable the relevant party to properly cope with the administrative remedy procedure. Therefore, the disposition cannot be deemed unlawful, unless the grounds and reasons for the disposition are specifically specified in the written disposition (see, e.g., Supreme Court Decision 2015Du2024, Sept. 10, 2015). In addition, the disposition that refuses an application with the relevant provisions clearly indicate the grounds and reasons when the relevant party presented reasons to the extent that it could identify the grounds for the disposition, even if the relevant provisions and grounds are not clearly stated in the written disposition and the relevant Acts and subordinate statutes and the relevant procedures are sufficiently known to the relevant parties (see, e.g., Supreme Court Decision 201Du20289, May 27, 2002).

The following circumstances, which are acknowledged by comprehensively considering the aforementioned evidence and evidence as well as evidence Nos. 19 and 40 as well as the overall purport of oral arguments, namely, the instant disposition was made by the Plaintiff’s preparing an application for allocation of emission permits and submitting it to the Defendant in accordance with attached Form No. 6, and the above application for allocation contains provisions on the ground of application for allocation such as Article 13(1) of the former Emission Trading Act and Article 15 of the Enforcement Decree of the former Emission Trading Act. At the time of the introduction of the emissions trading system, government departments, including the Ministry of Environment, etc., such as the Ministry of Environment, have held briefing sessions and public hearings on allocation plans on several occasions. As such, it appears that the Plaintiff had sufficiently been aware of the standards for calculating allocation of greenhouse gas emission permits in accordance with the emission trading statutes and the former allocation guidelines at the time of the submission of the above application for allocation. The Defendant served materials containing specific details on the 5th of the same month after the notification of allocation to the Plaintiff on December 1, 2014.

C) Sub-decision

Ultimately, there is no procedural defect in the disposition of this case.

2) Whether there is any substantive defect

The main sentence of Article 12(1) of the Act on Trading Emission Permits provides that "the competent authority shall allocate all emission permits for each commitment period and annual emission permits to business entities eligible for allocation in accordance with the allocation plan." Article 12(2) of the same Act provides that "the standards for allocation of emission permits under paragraph (1) of the same Article shall be prescribed by Presidential Decree in consideration of all eight matters, including the equitable allocation of emission permits among business entities eligible for allocation, the level of technology for reducing greenhouse gases by sector or by business type, international competitiveness (paragraph (6)." Article 12(1) of the former Enforcement Decree of the Act provides that "the competent authority shall determine allocation of emission permits for each business entity eligible for allocation in consideration of all eight matters, including the matters under the subparagraphs of Article 12(2) of the Act and the estimated growth rate (paragraph (3)) of the relevant business type or business entity eligible for allocation during the commitment period," and Article 12(2) of the former Enforcement Decree of the Act provides that "the competent authority shall determine and publicly announce detailed matters concerning allocation methods, in the Official Gazette."

The former Guidelines for Allocation, which is announced upon delegation of the emission trading laws, provides for the calculation method and procedure of the allocation of emission permits (hereinafter referred to as "the calculation method of this case") in Chapter 4, Articles 8 through 15.

In full view of the contents, form, purport, etc. of the pertinent laws and regulations, the calculation method of this case is to supplement the contents of the above laws and regulations with regard to the calculation method of allocation by company according to delegation of Article 12(1) and (2) of the former Enforcement Decree of the Emission Trading Act and Article 12(1) and (2) of the former Enforcement Decree of the Emission Trading Act. Thus, the calculation method of this case shall be effective as an order with external binding force in combination with the above provisions of each

Therefore, as long as the provision on the calculation method of this case does not deviate from the delegation scope under Article 12 of the Emission Trading Act and Article 12 of the former Enforcement Decree of the Act, the instant disposition made by the Defendant according to the calculation method is lawful unless there are special circumstances. However, Article 5(1) of the Act on Trading of Emission Permits provides, “The Government shall establish an allocation plan including the matters regarding total emission allowances established for each commitment period in consideration of national greenhouse gas reduction targets in order to effectively achieve national greenhouse gas reduction targets, matters regarding total emission allowances (Paragraph 1), the pertinent commitment period and implementation year based on total emission allowances (subparagraph 2), matters concerning the sector and type of business eligible for allocation of emission permits (subparagraph 3), guidelines for allocation of emission permits by sector and type of business (subparagraph 4), guidelines for allocation of emission permits by year, guidelines for allocation of emission permits by type of business (subparagraph 5), guidelines for allocation of emission permits and methods for allocation of emission permits by type of business under Article 8, and the allocation method and methods of allocation of emission permits under the Act on Allocation of Emission Permits.”

Accordingly, the following examined the Plaintiff’s assertion of the substantive defects related to the illegality of the allocation plan, and then examined the illegality of the instant disposition in accordance with the calculation method of the instant case. However, concerning the detailed calculation method of the allocation of emission permits based on the allocation plan and the emission trading laws

First of all, I will examine.

A) The detailed calculation method for the allocation of emission permits is as seen earlier. ① Calculation of the outlook for the emission of greenhouse gases by year (15-17 years). ② Calculation of the outlook for the emission of greenhouse gases by year and by business type (4) Calculation of total emission allowances by year and by business type (5-17 years); calculation of total emission allowances by year and by business type (4) calculation of total emission allowances by year and by business type (4) calculation of total emission allowances by year and by year / (4) calculation of total emission allowances by year / (1) calculation of total emission allowances for the first commitment period / (1) calculation of total emission allowances by year and

① The annual national BAU of the first commitment period was determined by the State Council around January 2014, i.e., the figures established in the Rorap and the basic plan, i.e. the country BAU in 2009, as follows:

national greenhouse gas emissions (BAU) by year.

(unit: 00 tCO2-eq)

A person shall be appointed.

② The BAU(hereinafter referred to as the "ETS BAU") of the emissions trading scheme (hereinafter referred to as the "ETS") was calculated by comparing the national greenhouse gas emissions on the "State Scen report" published in the "Korea Greenhouse Gas Information Center" with the greenhouse gas emissions in the specifications that have been reported to the government from 2011 to 2013 by a reliable external specialized institution for business entities eligible for allocation under the target management scheme. The number is 81.0% as follows.

(unit: MostCO2-eq)

A person shall be appointed.

(3) The ETS BAU for each type of business shall calculate emission prospects for each compliance year, taking into account the weight of each type of business subject to the emissions trading scheme in the last three years (from 2011 to 2013) of greenhouse gas emissions in the ETS BU for the last three years. The ETS BAU for each type of business subject to the emission trading scheme specified in the allocation plan is as follows:

(unit: MostCO2-eq)

A person shall be appointed.

However, the type of business applied to the computation of the ETS BAU refers to the standard type of business for the place of business belonging to the same type of business from among the places of business owned by each company, and the ETS BAU of each type of business calculated based on the standard type of business shall be converted to comply with the standard type of business for the calculation of the reasonable amount of emission permits by each type of

(4) The total permissible volume of emission for the first commitment period for each type of business shall be maintained, but the total permissible volume of emission for each type of business shall be calculated for each compliance year after applying the reduction rate for each year for each type of business specified in the road map to the ETS BAU, as follows: (unit: %)

A person shall be appointed.

(5) The total permissible volume of emission for each business type calculated as above is based on the business type. As such, the total permissible volume of emission for the ETS BAU and each business type based on the business base type shall be converted to the total permissible volume of emission for each business type based on the business type. In such cases, direct emission and indirect emission parts shall be converted from the total permissible volume of emission for the business type calculated as above. The ratio of total permissible volume of emission for the ETS BAU of each business type and the reduction rate for the petroleum chemical business type

(단위: 백만tCO2eq) |

A person shall be appointed.

(6) Total emission allowances for each compliance year shall be the total emission allowances during the first planning period, and the reserve emission allowances shall be calculated by multiplying the total emission allowances for the commitment period by 5%. Therefore, the remaining commitment period, which deducts the reserve portion from the total emission allowances for the commitment period, becomes an emission permit in advance for the commitment period, and the number is as follows:

(unit: KAU)

A person shall be appointed.

7) The calculation of the amount of emission permits allocated and reserve for each type of business determined in a party plan to be based on the opinions of interested parties, such as business entities eligible for allocation, and related central administrative agencies. In this process, the reduction rate for each type of business on the road map was 10% reduced directly for the direct emission and 80% for the indirect emission. According to this, the allocation of emission permits for each type of business is set according to the adjustment coefficient for each type of business (the directly expected emission volume by the business entity eligible for allocation + the estimated emission volume by the business entity eligible for allocation + the estimated indirect emission volume by the business entity eligible for allocation by X type). In addition, in order to increase the

③ The allocation of a petroleum chemical business type finally calculated through the above process is as follows:

A person shall be appointed.

B) Whether the allocation plan is unlawful

(1) Relevant legal principles

An administrative plan refers to an activity criteria or establishment thereof established to realize a certain order at a certain point in the future by integrating and coordinating relevant administrative means based on a professional and technical judgment regarding administration in order to achieve a specific administrative objective. An administrative agency has a relatively broad freedom of formation in formulating and determining a specific administrative plan. However, the freedom of formation of an administrative agency cannot be considered as unlimited; however, there is a limitation that the interests of the parties concerned are to be fairly compared and compared between the public interest and private interest as well as between the public interest and private interest. Thus, if an administrative agency formulates and determines an administrative plan, where the administrative agency did not provide the benefits at all or omitted matters to be included in the subject of consideration of the profit balancing, or where the benefits are reduced but lack legitimacy and objectivity, such decision may be deemed unlawful as there is a defect in the profit balancing (see, e.g., Supreme Court Decision 2012Du2467, Jul. 10, 2014).

(2) Whether the computation of the State’s BAU is unlawful

According to the above evidence and the purport of the whole pleadings, the government set in the allocation plan the state BAU, namely, the State BAU specified in the road map and the basic plan, which was set by the State BAU in 2009, and the government re-verification of the State BAU in 2013 (hereinafter "re-verification result") around 2013, and the State BAU in 2013 recognized the fact that the State BAU was higher than the State BAU in 2009 as listed below.

A person shall be appointed.

However, considering the following circumstances, i.e., BAU. established by the Presidential Committee on Green Growth, which was a subordinate organization of the President at the time of 2009, based on the results of the analysis of the research team composed of the two-year government research institutes, the Review Committee composed of 7 members, including Vice-Chairperson of the UN Committee on Intellectual Property, Environment, and Economy, 44 times public hearings and livers, 30 times public consultations with the Ministries, and the State Council, etc. The government’s application of BUUUUU’s 200 to UN on the ground that it is difficult to conclude that the two-year government’s application of BUUUUU’s 200 to the Plaintiff was unlawful. On the other hand, the State’s application of BUUUUU’s 209 to BUUU’s 200-year allocation of 900-year government emission permits to the extent that it was unreasonable for the Plaintiff to maintain the 90-year government’s 2000-year allocation.

(3) Whether the allocation by type of business is unlawful

Examining the main contents of the allocation plan above closely, it can be easily known that the allocation plan was prepared by taking into account all the elements of the basic plan and emission trading statutes, the total permissible volume of emission by year and by type of business in accordance with the allocation plan is calculated each year from 2014 to 2020, and the total permissible volume of emission by year and by type of business is calculated each year in each year from 2011 to 2013, taking into account the proportion of the amount of greenhouse gas emissions by each year from 2013 to 2020, the ETS BU for each year and by type of business within the scope of national BAU for each year from 2014 to 2020. The method of calculating total permissible volume of emission by year and by type of business is reflected in the expected growth rate by type of business. Accordingly, the Plaintiff’s assertion on this part is without merit.

(4) Ultimately, the allocation plan was legally formulated.

C) Whether the instant disposition is unlawful

(1) Whether an increase in greenhouse gas emissions is unlawful

(A) Facts of recognition

In full view of the purport of the entire pleadings, the following facts are recognized in Gap evidence 3, 9, Eul evidence Nos. 37 and Eul evidence Nos. 37 (including identification numbers):

① On October 11, 201, the Plaintiff entered into an understanding sense with the Ulsan Metropolitan City, the Korea Industrial Complex Corporation, and the KS Energy Corporation (hereinafter “SK Energy”), that the Korea Industrial Complex Corporation established a studs pipeline facility (hereinafter “Sweg”) of 6 km in order to supply the ice team generated from the instant facilities to KS energy, and that the Ulsan City will provide administrative support for the said projects.

Then, on May 5, 2012, the Plaintiff entered into a contract with the Korea Industrial Complex Corporation (Korea Industrial Complex Corporation) and the KS Energy (hereinafter “Korea Industrial Complex Corporation”) under which the Plaintiff would be supplied with at least 400,000 tons annually from the date of the first team supply by 15 years from the date of the first team supply.

③ From August 31, 2013 to August 31, 2013, the Plaintiff supplied the Sc Energy Team via Scwawa. Accordingly, the average monthly greenhouse gas emissions from September 2013 to December 2013 by the Plaintiff is 34,48tCO2-eq, which is the Plaintiff’s average monthly greenhouse gas emissions from January 2013 to August 2013.

(B) Whether the anticipated growth rate following the change of the project plan is illegal

According to the facts acknowledged above, the Plaintiff’s increase in greenhouse gas emissions due to the supply of S-Energy through the S-Energy from August 31, 2013 to S-Energy was due to the change of the business plan within the standard year.

On the other hand, the instant disposition was conducted based on the instant calculation method of the allocation standards and allocation method of emission permits established in the allocation plan and the former allocation method publicly notified pursuant to delegation of the emission trading laws and regulations, and there is no content that prior allocation should be determined in consideration of the greenhouse gas emissions resulting from the modification of the business plan. Thus, whether the provision of the above calculation method is unlawful for not reflecting the anticipated growth rate following the modification of the business plan in advance is contrary to the purport of superior laws and regulations.

Article 12 of the Act on the Trading of Emission Permits and Article 12 of the former Enforcement Decree of the Act on the Trading of Emission Permits as seen earlier, and Article 5(1)6 of the Act on the Trading of Emission Permits provides that "the standards and methods for the allocation of emission permits to business entities eligible for allocation shall be established in a allocation plan." Ultimately, in determining whether the provision of this case is invalid in violation of the above Act and its purport, the provision of this case must take into account not only Article 12 of the Act on the Trading of Emission Permits and Article 12 of the former Enforcement Decree of the Act on the Trading of Emission Permits, which is the direct delegation provision of the above calculation method provision, and the contents of allocation plan as well as Article 12 of the former Enforcement Decree of the Act on the Trading of Emission Permits, as well as Article 12 of the former Enforcement Decree of the Act on the Trading of Emission Permits. In addition, where it is unclear whether subordinate statutes are inconsistent with higher statutes or not, it does not declare that subordinate statutes are in violation of higher statutes (see, e.g., Supreme Court en banc Decision 97Nu97Du325.

The following circumstances revealed in light of the aforementioned facts and the purport of the entire argument revealed as seen earlier, namely, the expected growth rate for each business entity shall be considered only for new and expansion of emission permits (see subparagraph 1, 20, 20, 1). The Emission Trading Act and subordinate statutes stipulate that the total amount of 16 emission permits shall be considered when each business entity allocates emission permits to each business entity. Since the "presumed growth rate for each business entity eligible for allocation during the planned period" is one of the above, administrative agencies have broad discretion to reflect the anticipated growth rate within the range of one business entity eligible for allocation, taking into account the purpose of the Act and subordinate statutes on Trading Emission Permits and the purpose and purpose of the emissions trading system, and even if the newly established and expanded facilities are allocated emission permits based on an objective and easy prediction, it is difficult to consider the change of the business plan during the planned period against the purpose of Article 17(2) of the former Act and thus, it is difficult to consider the change of the allocation of emission permits to the extent of one business entity eligible for allocation.

Therefore, it cannot be deemed unlawful to not reflect the anticipated growth rate due to the change of the plaintiff's business plan in accordance with the provision of the calculation method at the time of the disposition in this case (as a result of the plaintiff's allocation plan, the pre-distribution is calculated by adding up the "amount of greenhouse gas anticipated to the pertinent compliance year of the facility within the basic year" and "amount of greenhouse gas anticipated to the pertinent compliance year of the facility newly established and expanded within the basic year". Accordingly, greenhouse gas emissions due to the change of the business plan within the basic year are included in the "amount of greenhouse gas anticipated to the pertinent compliance year in the corresponding compliance year of the facility within the basic year" and it is reasonable to view the disposition in this case as reflected the anticipated growth

As seen earlier, the calculation method provision of this case is in accordance with delegation of the Emission Trading Act, which requires the competent authority to determine and publicly announce the submission of allocation applications and examination procedures, and is thus effective as an external binding legal order when supplementing the contents of the relevant statutes and combining them. The provision regarding the preparation of the application in this case, which does not consider the change of the business plan during the commitment period as the expected growth rate of the business entity eligible for allocation, is difficult to be

Therefore, the provision on the preparation of the instant application is lawful, and the application for allocation made pursuant to the provision on the preparation of the said application is also lawful.

(D) Whether the instant extension clause violates the superior laws and regulations

According to the above legal principles and the above evidence allocation plan, it is reasonable to view that the amount of greenhouse gas emissions expected for the pertinent compliance year of the existing facility of a business entity eligible for allocation is calculated by aggregating the "amount of greenhouse gas emissions anticipated for the pertinent compliance year of the facility within the pertinent compliance year" and the "amount of greenhouse gas emissions anticipated for the pertinent compliance year of the newly established and expanded facility within the pertinent compliance year in the pertinent compliance year". The emission trading law does not clearly state the concept of extension because there is no provision on the concept of extension in the emission trading law, it was anticipated that it would be difficult to allocate emission permits when it is allocated. Article 12 (2) of the former Enforcement Decree of the Emission Trading Act provides that "The competent authority shall determine and publicly notify the allocation method in the Official Gazette after consultation with the head of the relevant central administrative agency, and it is reasonable to view that the competent authority has a broad discretion in calculating the allocation method, and it is difficult to clearly state the concept of extension of emission permits in the allocation plan, in light of the purport of this case, which can prevent the excessive allocation of emission permits from being unfairly applied.

(E) Whether the instant extension clause satisfies the requirements

The term "extension" as referred to in the extension clause of this case refers to the increase of design capacity of the existing facilities in preparation for the change by adding physical changes that directly contribute to the production activities of the existing facilities, and the increase of greenhouse gas emissions by at least 10/100, and the increase of greenhouse gas emissions by at least 5/100. Thus, in order to meet the requirements of the extension clause of this case, "physical changes directly contribute to the production activities of the existing facilities" must first be made. However, as seen earlier, the physical changes of the Plaintiff caused by the physical changes are limited to the sponswa to supply electricity, steam, heat, etc. generated from the facilities of this case, and do not add physical changes to the part directly contributing to the production activities of the facilities of this case. Accordingly, the Plaintiff'

(2) Whether the adjustment coefficient of the petroleum chemical industry is applied uniformly

Comprehensively taking account of the above evidence, the defendant calculated the amount of emission permits allocated to the plaintiff, and it is recognized that the amount of emission permits recognized among the plaintiff's amount of emission permits applied is calculated by multiplying the adjustment factor of the petroleum chemical industry by 0.84.

Such adjustment coefficient is a concept that does not exist in the emission trading laws and regulations, and requires that the allocation coefficient should be used in determining the allocation of emission permits to business entities eligible for allocation. According to the allocation plan (the 26th of the 1st of the 201st of the 1st of the 201st of the 1st of the 201st of the 1st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 201st of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 3th of the 3th of the 2.

Therefore, the application of the adjustment factor of the petroleum chemical industry to the plaintiff at the time of the instant disposition is not contrary to the law of emission trading and the principle of equality, or is not a deviation or abuse of discretionary power.

(3) Ultimately, the instant disposition is lawful.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.