2017Nu38746 Action for the revocation of disposition to allocate greenhouse gas emission permits.

1. A large-scale development company;

2. A non-Tex stock company;

3. Scal forest oil company.

4. K.S. stock company;

5. New Daily Co., Ltd.; and

6. Large street Co., Ltd.;

7. 주식회사 에너지네트웍

8. Co., Ltd.;

9. Cas environmental service corporation, which is a litigation taking-off system for the wrch industry corporation;

10. Dongyang Co., Ltd.;

11. Fame of a stock company;

12. Cas environmental services company;

The Minister of Environment

Seoul Administrative Court Decision 2015Guhap5141 decided February 2, 2017

July 20, 2017

August 24, 2017

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The decision of the first instance is revoked. On February 1, 2014, the defendant's rejection disposition against the plaintiffs on the allocation of greenhouse gas emission permits in tons of comparable carbon dioxide equivalents as stated in the attached list "Refusal quantity" shall be revoked.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is the same as the reasoning of the judgment of the court of first instance, except for any parts written or added below. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts used or added;

A. Article 16 of the former Framework Act on Low Carbon, Green Growth (amended by Act No. 14811, Apr. 18, 2017; hereinafter referred to as the "former Framework Act on Low Carbon, Green Growth") of the first instance judgment is "the former Framework Act on Low Carbon, Green Growth (amended by Act No. 14811, Apr. 18, 2017; hereinafter referred to as the "former Framework Act on Low Carbon, Green Growth"), all of the grounds for the first instance judgment is "former Green Growth Act", and all of the former Enforcement Decree of the Framework Act is "Enforcement Decree of the former Framework Act on Green Growth", and the "related Acts and subordinate statutes of the first instance judgment

B. Part 8 of the judgment of the court of first instance provides that "it is difficult to give notice" (Article 43 of the former Green Growth Act, Article 33 of the former Enforcement Decree of the Green Growth Act, Articles 12(2) and 15 of the Emission Trading Act, and Article 19 of the former Enforcement Decree of the Emission Trading Act, deeming greenhouse gas reductions voluntarily conducted before receiving management of national greenhouse gas reduction targets as early reduction performance and reflect it in the establishment of greenhouse gas emissions allocation through verification by the verifying agency. Thus, even if facility investments conducted before April 14, 2010 are not included in the subject of this Act, it does not unfairly discriminate against the business operator who had attempted to reduce greenhouse gas early, as above, even if they are not subject to the application of the provisions of this Act)." On the 9th sentence of the judgment of the court of first instance, the following is added.

(6) The provisions of the former Enforcement Decree of this case apply to an act of reducing greenhouse gas emissions from existing fossil fuels directly, such as replacing existing fossil fuels used by a business entity eligible for allocation as energy source for industrial activities with inflammable wastes or renewable energy produced from inflammable wastes.

Therefore, regardless of whether the provisions of the former Enforcement Decree of this case can be applied to the case where the plaintiffs' energy sources used for the incineration of wastes, their own own business, are replaced by other renewable energy, etc. from existing fossil fuels, the plaintiffs' act of creating new energy in the process of the incineration of wastes, which is the original business activities, and selling them to third parties, as in the case of this case, creating new revenue sources, which are renewable energy sales business in addition to the waste incineration business, and thus, it cannot be evaluated as the act of reducing the greenhouse gas emissions directly

① The Plaintiffs’ supplying incineration heat to a third party, and the third party’s use of the above renewable energy as a substitute for existing fossil fuels seems to have reduced greenhouse gas emissions from fossil fuels as a whole in the nation.

However, the current emissions trading system, which is stipulated in the Emission Trading Act, is a matter of legislative policy to determine the total emission volume of the country's greenhouse gas emissions and the total amount of annual emission permits, and to determine the quantity of emission permits by type of business and company within the scope of the total amount of the emission permits. Therefore, it is not possible to grant benefits from the allocation of emission permits to all renewable energy-generating and retail companies involved in a series of process that results in the reduction of one emission volume, and to grant benefits from the reduction of emission to anyone among them.

Furthermore, considering the fact that the effect of the reduction of emissions does not naturally result from the Plaintiffs’ renewable energy production, rather than from the Plaintiff’s renewable energy production, the energy purchasing company ultimately results from selecting and using the above renewable energy as a substitute for the existing fossil fuel, it cannot be deemed that the provision of the former Enforcement Decree is not applied to the Plaintiffs, who are renewable energy manufacturing and selling companies.

8) The Plaintiffs asserts that the provision of the former Enforcement Decree does not apply to the Plaintiffs, but rather applies to purchasing companies that purchased low-price incineration energy, thereby causing disadvantages to the Plaintiffs who made investments in incineration energy facilities, and granting double benefits to purchasing companies.

However, as seen earlier, the Plaintiffs’ investment in incineration heat energy facilities is aimed at creating new sources of revenue, which is an incineration heat energy sales business, and can enjoy economic benefits corresponding to the investment in facilities through such a sale of renewable energy (or may receive support under the relevant laws and regulations for environment-friendly new energy business). Therefore, the Plaintiffs cannot be deemed to suffer any disadvantage due to facility investment by deeming that the provisions of the former Enforcement Decree are not applicable to the Plaintiffs. Rather, by granting the Plaintiffs’ benefits from the reduction of emission volume to the purchaser of renewable energy, the market competitiveness of the said renewable energy is relatively higher compared to fossil fuels, etc. by granting the Plaintiffs’ benefits from the reduction of emission volume, which led to the expansion of demand for renewable energy, which led to the Plaintiffs’ expansion of demand for renewable energy, and thus, the Plaintiffs may also obtain additional economic benefits, which cannot be readily concluded that this is disadvantageous to the Plaintiffs

In addition, the fact that the plaintiffs can purchase renewable energy at a low price compared to other energy sources is only based on the price formed by the market economy principle that takes into account the production cost, supply amount, and demand amount of energy generated from the incineration of wastes, and thus, it cannot be said that a purchasing company has suffered any benefit. Therefore, it cannot be deemed that a purchasing company grants double benefit to a purchasing company of renewable energy by granting a benefit from the reduction of emission volume.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiffs' appeal is dismissed.

The presiding judge, Ginju

Judges Invitations

Judges Lee Jae-in