The European Court of Justice (First Chamber) ruled the ex-post adjustment of German allowances for 2007 admissible and compatible with European Law.

The Court of Justice of the European Communities annuled the curtailing of the national allocation plan for the second trading period of the (2008-2012) of the European Emission Trading scheme for Latvia by the EuropeanCommission.

The Court of Justice of the European Communities approved the inclusion of aviation in the European Emission Trading scheme.

On June 4th 2012 the Court of Court of First Instance ruled that the action for annulment the Commission Decision on the benchmarks for the allocation in the third phase of the European Emission Trading scheme by the European Steel Association Eurofer was inadmissible.

The Court of Court of First Instance rejected the action for annulment the Commission Decision on the benchmarks for the allocation in the third phase of the European Emission Trading scheme by Poland.

The judgement confirmed an earlier ruling in the case.

The court decided that the penalty payment of 100 €/t CO2 does not apply if the emissions surrendered were based on a valid and verified emission report when the emissions are found to be erroneous and higher later.

The amount of the lump sum penalty of 100€/t CO2 is ruled to be proportional.

The court deciced that the croiss sectoral reduction factor has to be recalculated within 10 months by the European Commission.

The court decided that Emission allowances have to be surrendered from the beginning of actual emissions regardless if the emissions were associated with a test operation.

Greenhouse gas emissions from flights between the EU and Switzerland in the year 2012 fall under the EU Emission trading system.

Authorities are allowed to request information on the general state of the installations in the EU Emision Trading system.

The Federal Constitutional Court rejected the constitutional appeal. This constitutional appeal related to the law about the national allocation plan for greenhouse gases in the allocation period 2005 to 2007 (German Allocation Law 2007 - ZuG 2007) of 26 August 2004 (BGBl I p. 2211)

The Federal Administrative Court in Leipzig, in its ruling of 24 September 2009, dealt with the application of the law on environmental information in connection with data available at the German Emission Trading Authority on emissions of installations.

In various rulings the court decided that the downward correction of the allocation according to § 4 (3) ZuG 2012 during the years 2008-2012 were applied correctly.

The court decided to pass a judgement on sanctioning on to the European Court of Justice.

The court confimred a judgement of the European Court of Justice from 29th April 2015 and decided that the penalty payment of 100 €/t CO2 does not apply if the emissions surrendered were based on a valid and verified emission report when the emissions are found to be erroneous and higher later.

The Koblenz Administrative Court (VG Koblenz) ruled on 6 April 2009 that the plaintiff, an operator in the sense of the German TEHG (Greenhouse Gas Emissions Trading Law), not only has the right to acceptance of its monitoring concept but also the right to approval.

On 26 July 2004 the plaintiff took an action (W 4 K 04.948) against the Free State of Bavaria with a petition, as per § 113 (1) VwGO to annul the amendment ordered under § 4 (7) (1) of the German Greenhouse Gas Emissions Trading Law (TEHG) of 8 July 2004 (BGBl. I 1578) to the legal air pollution approval(s) for the cement block manufacturing plant(s) on the factory premises of the plaintiff; alternatively: to determine pursuant to § 43 (1) VwGO, that the obligations specified in §§ 4, 5 and 6 (1) TEHG did not part of the legal air pollution approval(s) for the cement block manufacturing plant(s) of the plaintiff. The action was aimed at incidental control of compulsory provisions in the TEHG that were integral to the trading system. An adjournment was requested until the decision of the German Federal Administrative Court under s.100 (1) GG [German Basic Law or constitution] could be obtained.

No credible reason for an injunction was made (see also Karlsruhe Admin. Court, B.v. 18.10.2004, 10 K 2205/04). The court held that it was reasonable to expect the plaintiff with its cement works could participate in the emissions trading scheme on a temporary basis. The plaintiff had not given details of or indicated which technical measures or commercial decisions would depend on the question whether any obligations arose out of  4, 5 and 6 (1) TEHG. The acknowledged uncertainty over the result of the allocation procedure, that is, whether the allocated entitlements would be sufficient or require supplementary purchasing of entitlements, did not justify the granting of an injunction. It could turn out that the plaintiff would receive the sought-after entitlements in full. The Commission of the European Communities estimates that the EU-wide costs of lowering greenhouse gas emissions can be reduced by 25 to 30% through emissions trading. Studies in Germany indicate that the overall benefits to the national economy from the use of emissions trading are estimated to be up to EUR 500 million per year (see the official argument for the TEHG, BT-Druck. 15/2328, pp. 7 and 9). Preliminary participation in emissions trading would be unlikely to lead to any irreversible consequences. Naturally the plaintiff must make provision for an unfavourable outcome as well. Initially it was only a matter of increasing production costs, such as would also apply, for instance, to any increase in energy prices. It was not until the year 2006 that entitlements would have to be submitted and any shortfall in entitlements purchased as an additional measure. The obligations arising from § 5 TEHG (recording emissions and providing an emissions report) would not lead to any appreciable impairments. This applied in particular to the obligation to record CO2 emissions, since the (amended) approvals recently granted to the factory already stipulated CO2 readings. Although the plaintiff relied on the unconstitiutional nature of an official law, provisional legal protection would not fail on the “quashing monopoly” of the Federal Administrative Court as per s.100 (1) (1) GG. The constitutional precept of effective legal protection (s.19 (4) GG) can justify deviation from s.100 (1) (1) GG in a case of provisional legal protection (cf. Kopp/Schenke, § 80, RdNr. 161). The question may well remain open here as to whether serious doubts about the unconstitutional nature of the law are sufficient grounds. However the court had no doubt about the constitutional appropriateness of the TEHG. The action was dismissed on the basis of the main issue of the case. Reference is therefore also made in this context to the decision-making grounds for the ruling on the same day (W 4 K 04.948).

Leaving aside for a moment the prospect of success of the main issue of the case, the court certainly put more weight on the public interest of timely commencement of the emissions trading scheme in weighing up the opposing concerns. In particular, the European obligation to implement the EU Directive must be taken into account, infringement of which could lead to grave consequences (see s. 226 to 228 EG). In view of the European law determination of the TEHG, in the final analysis, it is now only a matter of improving the transitional regulations and the assignment of responsibilities; the system of emissions trading itself, on the other hand, can no longer be called into question.

The ruling of the Würzburg Administrative Court relates to the previous decision and contains the following main principles:

1. An action contesting the validity of § 4 (7) (1) TEHG is not lawful.

2. A review of the constitutional nature of the TEHG can be achieved via a declaratory action.

3. The TEHG can only be measured against the German Basic Law (constitution) in so far as the 2003/87/EG guidelines for implementation allow.

4. The TEHG is compatible with s. 14, 12, 83 and 87 (3) GG.

The Berlin administrative Court decided that any remaining claim for free allocation for the time period 2008-2012 is void.

The Berlin administrative Court decided that an operator that surrenders EU allowances until April 30th, in a volume that corresponds to the verified emissions, the German Emission Trading Authority cannot demand a penalty of 100,- €/t CO2 if the emissions turn out to be higher in further examinations.

The application of a cement manufacturer for consideration of carbon dioxide emissions from clay, polystyrene, recovered paper material and sawdust as process-related emissions was rejected by the Berlin Administrative Court on 17 November 2006.

The Berlin Administrative Court, on 7 April 2006, treated several applications by various energy industry and industrial companies for allocation of further emissions entitlements as test cases and made a ruling. The applications were rejected.

The cost provisions of the Greenhouse Gas Emissions Trading Law and the Allocation Law 2007 are essentially unlawful. The Berlin Administrative Court therefore allowed four of the actions against the exactment of fees for the allocation of emissions entitlements and ordered the German Emissions Trading Authority (DEHSt) to repay any fees exacted plus interest.

The court dismisses the applicability of a hardship case for a refinery operator.

The proportional curtailment of allocations in order to stay within the emission budget is not applicable in connection with an application under a hardship case.

The U.S. Supreme Court reversed the decision of the 2nd Circuit concluding that the Clean Air Act displaces the federal court’s authority to enjoin emissions of greenhouse gases from coal-fired power plants using federal common law causes of action.  But the Court remanded to the 2nd Circuit the issue of whether the Clean Air Act preempted state common-law nuisance actions.  The decision also left unanswered the extent to which actions for damages may remain viable.  Finally, the Court affirmed the issues concerning standing to sue and whether the “political question” doctrine deprived the courts of jurisdiction, likely reflecting four strong votes for jurisdiction.

The court upheld the authority of the Californian Air Resources Board (ARB) to auction emission allowances in its cap-and-trade program.