The European Commission (EC) published in December 2011 a Consultation on the draft guidelines for targeting State Aid (Guidelines) in furtherance of the European Union (EU) Emission Trading Scheme (ETS) when the Third Trading Period begins in January 2013.  Interested parties have until January 31, 2012, to submit comments on the draft Guidelines before they are finalized.

Launched in 2005 to combat human-caused climate change by ratcheting down emissions of carbon dioxide, the ETS, as revised in 2008, allocates EU-wide emissions allowances for auction that can be used, banked or traded.  According to the Consultation, State Aid (as defined in the Treaty on the Functioning of the EU), can be directed to the following emission reduction activities:

• Minimize Carbon Leakage — Carbon leakage occurs when emissions from a source within an EU Member State are reduced by migrating to a source outside of the EU where emission controls are less strict or non-existent.  State Aid can be directed to minimize the risk of leakage.
• Efficient Power — State Aid can be used to make investments in highly efficient power plants, including facilities capable of capturing and sequestering greenhouse gas (GHG) emissions from power plants Efficiency is to be measured against a standard articulated in the Guidelines.
• Allowance Grants in lieu of Auction — Member States will have the option to grant free (non-auctioned) allowances to electricity generators where the savings are invested in modernizing their operations through investments in clean technologies and in diversifying their energy mix and sources of supply.
• Exempting Certain Emission Sources — According to the Consultation, State Aid can be used to exempt certain small emission sources, including hospitals, from the EU ETS, but not from other obligations to reduce GHG emissions.

The amount of State Aid awarded to each of these applications will be based either on a formula in the Guidelines or according to the application’s environmental contribution.  Awards are to be guided by the precept of European law that a sledgehammer should not be used to crack a nut, also known as the principle of proportionality.