(영문) 서울행정법원 2017.2.2. 선고 2015구합55356 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 amount of national greenhouse gas emissions in 2020 by 30% compared to the expected greenhouse gas emissions in 2020, and 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, the main contents of which are setting and managing reduction targets every year for greenhouse gas emissions and energy consumption enterprises (hereinafter referred to as “management enterprises”) 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 “former Enforcement Decree of the Framework Act”) in order to achieve reduction of greenhouse gases, energy conservation, and energy utilization efficiency, and established and managed the target for reduction of greenhouse gases, energy conservation, and energy utilization efficiency for each management business from 2012 through the model 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 of emission trading system (hereinafter referred to as “first commitment period”) for three years from January 1, 2015 to January 12, 2017.

E. On September 11, 2014, pursuant to Article 5 of the Emission Trading Act, the Government established a national emission permit allocation plan that includes the total permissible amount of greenhouse gas emissions set in consideration of national greenhouse gas reduction targets, the pertinent commitment period for total permissible emission allowances, and the total amount of annual emission permits for each implementation year in order to effectively achieve national greenhouse gas reduction targets, and announced it on September 16, 201.

F. On September 12, 2014, the Plaintiff was designated as a business entity eligible for allocation of emission permits (hereinafter referred to as “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, including rubber chemical products and other chemical products.

G. On October 24, 2014, the Plaintiff filed an application for the allocation of emission permits to Defendant 2,253,364 tons of carbon dioxide equivalents (tCO-eq) for the first commitment period with 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, Jun. 1, 2016; however, Article 2 of the Addenda of the Enforcement Decree was changed to Defendant from June 1, 2016; hereinafter referred to as “the instant disposition of refusal against the remaining 340,395KU”) before correction, which is the competent authority. On December 1, 2014, the Defendant allocated 1,912,39KU against the Plaintiff (hereinafter referred to as “the instant disposition of refusal against the remaining 340,56AU, after deducting the Plaintiff’s allocation from the Plaintiff’s application amount”).

Unit: KAU

A person shall be appointed.

H. The Plaintiff dissatisfied with the instant disposition and filed an objection to the Defendant on December 23, 2014, but was dismissed on February 6, 2015.

【Reasons for Recognition】 Evidence Nos. 1 through 5, Evidence No. 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not simply retire secondary gas, and supplied fossil fuel energy users with heat by means of necessary facility investment, such as boiler and piping pipes. If an energy consumer substitutes the use of fossil fuels by receiving energy sources from the Plaintiff, the Plaintiff’s emission of greenhouse gases is offset and substantial greenhouse gas emissions do not occur. Therefore, in rendering the instant disposition, the Defendant should have considered the degree of contribution to the State’s reduction of greenhouse gas emissions by utilizing tin fuels in accordance with Article 12(2)7 of the Emission Trading Act (hereinafter “instant provision”) and Article 12(1)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 “former Enforcement Decree of the Emission Trading Act”). However, the instant disposition was unlawful, even though it did not consider the degree of contribution to the State’s reduction of greenhouse gas emissions by utilizing tin fuels fuels in lieu of the degree of contribution to the State’s reduction of greenhouse gas emissions.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether it is unlawful to consider the statutory provisions of this case

Article 25(1) of the former Enforcement Decree of the Framework Act provides that "the competent authority shall consider the extent that the investment, etc. in facilities of business entities eligible for allocation in allocation of emission permits contributes to the achievement of national greenhouse gas reduction targets," and "national greenhouse gas reduction targets" under Article 42(1)1 of the Framework Act (see Article 2(3) of the Emission Trading Act). Article 25(1) of the former Enforcement Decree of the Framework Act provides that "the national greenhouse gas reduction targets under Article 42(1)1 of the Framework Act shall reduce the total amount of national greenhouse gas emissions in 2020 to 30/100 of the estimated amount of greenhouse gas emissions in 2020," and both the Framework Act and the former Enforcement Decree of the Framework Act were enacted on January 13, 2010 and enforced on April 14, 2010. The Emission Trading Act was enacted on May 14, 2012 based on Article 46 of the Framework Act.

When comprehensively interpreting the provisions of the relevant laws and regulations as well as the purport of the emissions trading system, the competent authority is obligated to take into account the investment in facilities to reduce national greenhouse gas emissions from April 14, 2010 to 30/100 of the estimated emission of greenhouse gases in 2020. Therefore, the competent authority is not obligated to take into account the investment in facilities to reduce national greenhouse gas emissions from April 14, 2010, when an enterprise subject to allocation has made an investment in facilities to reduce national greenhouse gas emissions by 30/100 of the estimated emission of greenhouse gases in 2020. Therefore, even if an enterprise subject to allocation was a facility investment from April 14, 2010 to a facility investment from April 14, 2010, if the investment in facilities for business activities is less than national greenhouse gas emissions in whole.

In the instant case, there is no evidence to acknowledge that the facility investment of the Plaintiff’s assertion was made from April 14, 2010, and that such facility investment was aimed at reducing the national greenhouse gas reduction targets, i.e., the national greenhouse gas emissions in 2020 to 30/100 of the estimated greenhouse gas emissions in 2020. Therefore, it is difficult to deem that the Defendant’s failure to consider the provisions of this case’s law is unlawful when allocating emission permits to the Plaintiff.

2) Whether the failure to consider the provisions of the former Enforcement Decree is unlawful

Considering the following circumstances in which evidence Nos. 7, 8, and 6 through 11 of the former Enforcement Decree of the instant case can be seen in each entry of evidence Nos. 7, 6, and 11 (including the branch numbers attached thereto) and the purport of the entire pleadings, the sale of by-product gas, as alleged by the Plaintiff, is not subject to the application of the provision of the former Enforcement Decree.

Therefore, it is difficult to deem that the Defendant’s failure to consider the provisions of the former Enforcement Decree when allocating emission permits to the Plaintiff is illegal.

(1) The former Enforcement Decree of this case requires consideration at the time of allocating emission permits to business entities eligible for allocation. In the form of "use" rather than "use", the former Enforcement Decree shall be interpreted as a business entity eligible for allocation who uses inflammable wastes instead of fossil fuels. This conforms to the literal interpretation.

(2) The former Enforcement Decree of the Republic of Korea sets forth the form of "using inflammable wastes instead of fossil fuels," which states that fossil fuels and inflammable wastes should be replaced by another. In other words, it is clear that the same business entity should use inflammable wastes in lieu of fossil fuels used as fuel in its business activities and contribute to the reduction of national greenhouse gas emissions as a result.

(3) Article 2 subparagraph 1 of the Wastes Control Act provides that "waste" means garbage, burning materials, sludge, waste oil, waste acid, waste acid, waste eggs, animal carcasses, etc., which are no longer necessary for human life or business activities. However, secondary gases do not constitute wastes because they do not fall under garbage, burning materials, sludge, waste oil, waste acid, waste egg, and animal carcasses.

④ At the time when the former Enforcement Decree of the Emission Trading Act was first drafted on July 23, 2012 and was pre-announcement of legislation, the provisions of the Enforcement Decree of the instant case were not included. The Korea Telecommunication Federation and the Korea Cement Association, to which the company subject to conversion or pre-conversion was affiliated with the company subject to conversion of the energy required in the industrial process into inflammable wastes, and the Government made a recommendation that the degree of contribution to the reduction of the use of fossil fuels was changed due to the activities under subparagraph 7 (b) of Article 2 of the Wastes Control Act," and the Government revised the Enforcement Decree so that it can clarify the scope of the application in the case of direct substitution of the use of fossil fuels.

(6) In a case where an enterprise supplied by the Plaintiff with secondary gas incineration heat does not use fossil fuels in the existing area, there was no contribution to the reduction of national greenhouse gas emissions, and thus, it does not necessarily mean that the heat from secondary gas incineration supplied to the outside by the Plaintiff does not necessarily substitute fossil fuels.

(6) In order to comply with the permissible emission levels set under the Clean Air Conservation Act, the Plaintiff is running a profit-making business using energy generated in the course of treating secondary gases for consideration. The Plaintiff is not using secondary gases on behalf of using fossil fuels in the existing process, and thus granting benefits to the allocation of emission permits on the ground of a profit-making activity unrelated to the efforts to reduce greenhouse gas emissions is inconsistent with equity between other business entities eligible for allocation and other business entities.

3. Conclusion

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