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Emissions trading: Delimitation of ‘installation’ settled
Administrative court in Berlin confirms delimitation of “installation” by German Emissions Trading Authority at the Federal Environment Agency
Year of issue
Date 20/02/2007
Date 20/02/2007
As concerns emissions trading, an installation always disposes of its own operating license as per the Federal Immission Control Act (BImSchG). A joint installation may not be randomly split up in order to optimize the allocation of free emission allowances as the operator sees fit. This decision was taken by the administrative court in Berlin on 2 February 2007. Installations in the energy sector and carbon-dioxide-emissions-intensive industry are currently active in emissions trading.
One energy company had requested allocation of emissions allowances based on several individual power station units within an installation which had been licensed by BImSchG as a whole. By resorting to various exceptional rulings, the company had hoped to be awarded millions more emissions allowances than the German Emissions Trading Authority (DEHSt) had actually allocated.
However, DEHSt always considers the installation in its entirety as licensed by the Federal Immission Control Act with respect to rights and obligations in emissions trading. The Authority interprets the legislation pertinent to emissions trading as it relates to the licensing procedures of BImSchG. The legislative intent to base the delimitation of the installation on the licensing procedure prescribed by BImSchG and thereby avoid a review of the matter in the course of emissions trading is anchored in the evolution of this new climate protection instrument, explains Dr. Hans-Jürgen Nantke, Director of DEHSt. The Berlin administrative court’s ruling confirms the DEHSt codes of practice and dismisses the lawsuit, which can be characterized as a model complaint. Any regional differences in the delimitation of installations owing to varying codes of practice among the Laender authorities that arose during the installation licensing procedure governed by BImSchG do not contradict the DEHSt’s definition of an installation, said the judge during the oral deposition. The decision is not as yet legally binding and may appealed.