The Clean Energy Act (CEA) and its related legislation received royal assent on 18 November 2011, ushering in a new era for the Australian industry, and for those who deal with it. Building on the 2007 National Greenhouse and Energy Reporting Scheme (NGERS), which mandates the measurement and reporting of greenhouse gas emissions and electricity production and consumption, the CEA imposes direct obligations on:
individual industrial operations (facilities) that emit more than 25,000 tonnes of carbon dioxide, or its other equivalent greenhouse gases, from particular sources, in a year;
suppliers of natural gas (at the point of last supply before the gas is burnt or otherwise used), for the emissions that will be generated when the gas is burnt; and,
operators of land-fill facilities, such as local councils.
While the primary emissions targeted by the scheme are produced by burning fossil fuels, they also include emissions such as the methane released when coal is mined.
The obligations include the option of surrendering carbon units for each tonne of emissions, however, if this optional step is not performed, the mandatory payment of a tax, which far exceeds the cost of a unit, is enforced.
The Australian Government will sell carbon units at a fixed price for the first three years, starting at $23, after which units will be auctioned for between $15 and the expected international unit price, plus $20. The supply of domestic units will be unlimited for the three fixed price years, but will be subject to a reducing cap in following years, consistent with the Government policy of reducing Australia’s emissions.
The Government has created a monopoly for the supply of units for the first three years by prohibiting the use of overseas-sourced carbon units, and by only allowing 5% of the unit surrender requirements to be comprised of Australian generated carbon credits. Thereafter, for the first five of the flexible-charge years, only half the units can be sourced from overseas, with any apparent saving likely to be offset by the various taxes and charges applicable to the use of those units.
Certain fuels will also be separately taxed. Entities, however, which acquire, manufacture or import fuels and would otherwise be entitled to a fuel tax credit, may be able to assume direct liability thus enabling them to acquire or manufacture fuel, free of the carbon tax component.
Where the imposts will cause competitive disadvantage to industries that compete with entities from other countries that do not have similar imposts, some assistance is provided in the form of allocated units provided at no charge. Assistance is also available to coal-fired electricity generators, producers of liquefied natural gas, operators of gassy coal mines, and the steel industry (not discussed in this paper).
This paper also explains, in detail, how liability is created, how to determine which entities are liable, the means of assigning liability to other entities, and the assistance available to various industries to help deal with the financial impact of the scheme on their operations. It also outlines the key concepts that underpin the scheme.
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