1. How do I know if I have to register?
If a controlling corporation's group (see Q5 below) meets a corporate level threshold, or a member of the controlling corporation's group has operational control of a facility (see Q6 and 7 below) which meets a facility level threshold, it must register with the Greenhouse and Energy Data Officer ("GEDO").
If you do meet or exceed the relevant thresholds (see Q4 below), you must register no later than 31 August 2009 for the reporting year 1 July 2008 to 30 June 2009. You can register from 1 July 2008 and obtain access to the on-line reporting system.
In order to determine whether you have an obligation to register, it will be necessary for you to collate relevant data in accordance with the Act's requirements (see Q8 below), during the period 1 July 2008 to 30 June 2009. If you register after 1 July 2008 you can utilise the on-line registering system to assist you in collating data. However, once registered you will be obliged to lodge annual reports with the GEDO even if you do not meet the threshold (see Q16 below).
If a corporation intends to undertake a greenhouse gas project (see Q23 below), it must also register irrespective of whether that corporation meets any of the thresholds.
It may also be necessary for a corporation to register, even if it does not meet any threshold, for the purposes of determining permit allocations or permit acquittal liabilities under any proposed Australian Emissions Trading Scheme ("AETS"). For example, if operations of a corporation are classified as a "trade exposed energy intensive industry", it may need to register and report in accordance with the requirements of the Act.
2. When do I have to report?
Reports from registered corporations must be filed no later than 31 October after the end of any reporting year. Reporting periods are financial years so in respect of the first reporting period of 1 July 2008 to 30 June 2009, completed reports must be lodged with the GEDO no later than 31 October 2009.
3. What do I report?
Greenhouse gas emissions and the consumption and production of energy.
Greenhouse gases include carbon dioxide, methane, nitrous oxide, sulphur hexafluoride and certain types of hydroflurocarbons and perflurocarbons.
The term "emissions" is defined to include both Scope 1 (direct emissions) and Scope 2 (indirect emissions from the consumption of purchased electricity, heat or steam). The GHG Protocol1 defines Scope 1 and Scope 2. It is not necessary to report Scope 3 emissions although a registered corporation may choose to do so voluntarily.
"Energy" is fuel and commodities proposed to be listed in the Regulations and includes fossil fuels and biofuels, electricity and other sources of primary energy such as solar, wind and water energy.
Production of energy commodities includes extraction of primary fuels and the capture of renewable energy as well as the manufacture of secondary fuel products.
Consumption of energy is the use of any substance or resource as a source of heat or power including losses in extraction, production and transmission.
4. What are the thresholds?
There are corporate level thresholds and facility level thresholds in respect of both greenhouse gas emissions and energy production and consumption.
If a member of a controlling corporation's group has operational control over a facility that emits 25 kilotonnes or more of greenhouse gases (measured in CO2 equivelent) and/or produces or consumes more than 100 terajoules of energy within a reporting year, it must register with the GEDO and submit a report.
The corporate level threshold will be phased in over three years.
A controlling corporation's group which:
- emits 125 kilotonnes of greenhouse gases (measured in CO2 equivalent) or produces/consumes more than 500 terajoules of energy in the reporting period 1 July 2008 to 30 June 2009;
- emits 87.5 kilotonnes of greenhouse gases (measured in CO2 equivalent) or produces/consumes more than 350 terajoules of energy in the reporting period 1 July 2009 to 30 June 2010;
- emits 50 kilotonnes of greenhouse gas (measured in CO2 equivalent) or produces/consumes more than 200 terajoules of energy in the reporting report 1 July 2010 to 30 June 2011 or any year thereafter,
must register and report to the GEDO. If a controlling corporation exceeds one threshold (such as greenhouse gas emissions), it must report against all thresholds.
5. What is a "controlling corporation's group"?
Section 8 of the Act defines a controlling corporation's group to consist of the following:
- the controlling corporation. This is a constitutional corporation that does not have a holding company incorporated in Australia (that is, the ultimate Australian holding company);
- subsidiaries of the controlling corporation;
- joint ventures involving any member of the controlling corporation's group; and
- partnerships involving any member of the controlling corporation's group.
6. What is a "facility"?
A facility is an activity or series of activities that involves the production of greenhouse gas emissions, the production of energy or the consumption of energy and that:
- form a single undertaking or enterprise and can be attributed to one industry sector; or
- is declared by the GEDO to be a facility.
Activities form a single undertaking or enterprise where:
- the activities consist of one principal productive activity and any additional activities occurring at the facility are able to be assessed as secondary or ancillary; and
- the activities are situated in, or attributable to, a single physical location.
The principal activity of a facility is the activity where the value added exceeds that of any other activity carried out at the facility. The principal activity will also determine industry sector classification under the Australian and New Zealand Standard Industrial Classification (2006) (ANZSIC).
It is sometimes difficult to determine the principal activity of a business such as where the business is vertically integrated (see Q15 below). Also, not all activities take place at a single physical location such as pipelines and transport networks. Special provisions will apply in respect of these activities.
7. What is meant by "operational control"?
Section 11 of the Act provides that a controlling corporation or member of the corporation's group has operational control over a facility if:
- it has authority to introduce and implement operating, health and safety, and environmental policies; or
- the GEDO declares the entity to have operational control.
Only one corporation can have operational control of a facility. If more than one corporation satisfies the criteria, the corporation with the greatest authority to introduce and implement the policies is taken to have operational control. Specific provisions are made in respect of certain sectors:
- in relation to pipeline networks, electricity transmission and distribution networks and mining sectors, the operator will be taken to have operational control in preference to the facility/network owner;
- in relation to commercial properties, given the variety of tenanting arrangements that can exist in buildings, control over energy billing will be used as a proxy to determine operational control; and
(a) in relation to transport, where a company claims fuel tax credits under the provisions of the Fuel Tax Act 2006, this may be used as a proxy for operational control over transport activities in which the fuel is used.
8. How do I report the data?
Energy production and consumption is to be reported by fuel type. Greenhouse gas emissions are to be reported by fuel type and the type of greenhouse gas. Greenhouse gases are required to be measured in carbon dioxide equivalents (CO2-e) which is determined by multiplying the quantity of the relevant gas by its global warming potential. For example, methane has a global warming potential 21 times greater than carbon dioxide. Therefore to calculate the CO2-e of the total methane emissions, a registered corporation will be required to multiply the quantity of methane emissions by a factor of 21.
Reporting will be required to be in accordance with the Technical Guidelines for the Estimation of Greenhouse Emissions and Energy at Facility Level, Energy, Industrial Process and Waste Sectors in Australia. This will replace the AGO Factors and Methods Workbook.
9. Are the agricultural, forestry and fishery sectors liable to report?
Yes. While these sectors may be initially excluded from the operation of an AETS, controlling corporations within these sectors will be required to report energy related Scope 1 and Scope 2 greenhouse gas emissions and energy production and consumption data, if they exceed the relevant thresholds.
Non-energy related greenhouse gas emissions (such as fugitive emissions) will initially be considered zero for the purposes of the thresholds. This may be reviewed as work is done to improve methodologies for calculating non-energy related emissions from these sectors.
10. What will the data be used for?
The reported data will be used to satisfy reporting obligations under a number of Commonwealth and State/Territory reporting regimes (see Q11 below), as well as Australia's international reporting obligations.
Perhaps most importantly, the reporting regime will provide robust and transparent greenhouse gas emissions data for the purposes of the proposed AETS. The data will permit the determination of a greenhouse gas "cap" or budget, allocation of permits to those entities which have obligations to hold permits in respect of their emissions, as well as calculate offsets and removals of greenhouse gases under greenhouse gas projects (see Q23 below).
11. Do I have to report the same data under other reporting regimes?
Generally, no. The system established under the National Greenhouse and Energy Reporting Act 2007 is intended to provide a single streamlined national reporting point for greenhouse gas emissions and energy data in respect of relevant Commonwealth, State and Territory programs. For example, reporting under the Act is intended to replace;
- ABARE Fuel and Electricity Survey;
- Greenhouse Challenge Plus and Greenhouse Friendly;
- Mandatory Renewable Energy Target Scheme;
- Queensland 13% Gas Scheme;
- National Pollutant Inventory;
- Victorian EPA Inventory Greenhouse Program;
- NSW Greenhouse Gas Abatement Scheme; and
- Energy Efficiency Opportunities Act
Streamlining of reporting is still the subject of work by the Department of Climate Change.
To the extent, however, that data which is not related to greenhouse gas emissions or energy production/consumption is required under other schemes, the corporation will need to comply with those schemes. Of course, if a registered corporation does not meet a threshold or is not required to register, it may still be obliged to report data under these other schemes.
12. What happens if a facility under the operational control of a member of a controlling corporation's group exceeds a facility level threshold, but the corporate group does not exceed a corporate level threshold?
It is only necessary for the controlling corporation to submit a report in respect of the facility when it exceeds a facility level threshold. The controlling corporation is not obliged to also submit a report in respect of the corporate group's emissions and energy data.
13. Do I have to include data from contractors in my report?
Yes, in respect of facilities. This of course may create difficulty if the contracting corporation considers its emissions and energy data to be commercially sensitive or otherwise refuses to provide the data.
Section 20 of the Act permits an application to be made to the GEDO for an exemption from the registered corporation reporting the contractor's data. The GEDO can require the contracting corporation to provide this data separately.
Where a corporation's facility inventory includes data from contractors that are not in the same ANZSIC division, the company is required to separate facility data into its own data and contractor data at the sub-facility level.
14. What if my activities cross State/Territory borders?
As data reported under the System is intended to provide data to States and Territories, where an activity crosses a border, data will also need to be reported at a sub-facility level according to each State or Territory. Where necessary, the data may be pro-rated where it is not possible to accurately account for emissions or energy within a particular State or Territory. This may be the case in respect of pipelines.
15. How does the System apply to vertically integrated businesses?
Vertical integration is used to describe circumstances where different stages of production are carried out in succession under the operational control of one company. The output of one stage becomes the input of the next stage and generally only the input of the final stage is sold to the market.
Where vertical integration occurs at a single location, this will be a "facility" for the purposes of the Act, however, corporations are required to separately report data where the activities cross more than one ANZSIC division. Industry sector classification is based on the production stage which provides the greatest value added.
Where vertical integration occurs across multiple locations, as long as the components occur solely within one State or Territory, it will be a "facility" for the purposes of reporting. Again, if the activities cross more than one ANZSIC division, separate reporting of data will be required. Separate reporting at sub facility level will also be required if activities cross State/Territory borders (see Q14 above).
In summary, it is proposed that the Regulations will specify that in the case of vertically integrated facilities, where:
- all products and services are under the questional control of one company; and
- all products and services form part of a single production or process; and
- only the output of the final stage is sold to market,
activities will be classed as a "facility" if they occur at a single physical locations; or the operator can choose whether or not the activities are classed as a facility, if they occur at single physical location within one State or Territory. In either case, corporations will be required to separately report data where the facility's activities cross more than one ANZSIC division.
16. What if a registered corporation does not meet any threshold in a reporting year?
A registered corporation must still lodge a report with the GEDO even if it does not meet a threshold in any reporting year. The report must state that the thresholds have been met in the reporting year. Data may nevertheless be reported voluntarily.
A registered corporation may apply to the GEDO to be deregistered if it is unlikely to meet any of the reporting thresholds in the current financial year and two subsequent financial years.
17. What if a corporate threshold is met but no facility or only some facilities within the corporate group meet a facility level threshold?
The controlling corporation must lodge a report in respect of the greenhouse gas emissions and energy data of the group and its members. Corporations are required to report data relating to all thresholds (emissions and energy) where at least one corporate group threshold is met by a corporation in a reporting year.
Data from facilities which do not meet a facility threshold can be aggregated, subject to materiality thresholds (see Q18 below).
18. Are there materiality levels in reporting?
Yes in relation to coverage of facilities but not sources.
In relation to facilities, a corporation is not required to report on a facility that, for a given reporting year:
- comprises less than 2percent of the corporate group's inventory; and
- emits less than 3 kilotonnes of CO2-e greenhouses gases; and
- produces less than 12 terajoules of energy; and
- consumes less than 12 terajoules of energy,
and the aggregated total of all facilities excluded on the basis of materiality could not be estimated to make up more than 5 percent of the corporation's total emissions or energy production/consumption.
Corporations will still be required to report the number of facilities that are excluded on this basis.
In relation to sources, the exclusion of many small emissions could potentially reduce a corporation's permit liability not insignificantly. This could have a direct impact on a corporation's liability under an AETS. Consequently, it is proposed that no threshold for materiality of sources will be applied.
19. What data will be publicly disclosed?
All data held on the National Greenhouse and Energy Register is to be publicly disclosed. This will include:
- the details of the controlling corporation's group including each of its members and whether they are required to be registered;
- totals of greenhouse gas emissions and energy production/consumption reported in relation to a registered corporation's group for the previous reporting year, and for the individual members of the group. Scope 1 and Scope 2 emissions will be separately reported for each entity.
If a corporation is concerned that the data to be disclosed does not fairly reflect the operations of the controlling corporation's group or its members, the corporation may submit additional data and information described as "contextual data" on a voluntary basis. This data will be published on a website by the GEDO alongside a corporation's greenhouse gas emissions, energy consumption and energy production data. This may be particularly helpful where the reported data relates to facilities the subject of a joint venture or partnership arrangement where the corporation only has a limited equity investment.
20. How is confidential information treated?
Section 25 of the Act permits a registered corporation to apply to the GEDO to request that information not be published if it would reveal trade secrets or other matter having a commercial value that would or could reasonably be expected to be destroyed or diminished if that information was released.
21. What records must I keep?
A registered corporation must keep records of the activities of the members of its group that:
- allow it to report accurately under the Act; and
- enable the GEDO to ascertain if the corporation has complied with the Act.
Records must be kept for seven years from the end of the year in which the activities have taken place. Guidelines will be released in relation to record keeping which will permit the electronic storage of records.
22. What are the consequences if I do not comply with the reporting obligations?
The Act creates numerous civil penalty provisions, including:
- failure to register which attracts a maximum penalty of 2,000 penalty units (a penalty unit is currently $110) plus 100 penalty units for each day that the offence continues;
- failure to provide the GEDO with a report which attracts a penalty of 2,000 penalty units plus a further penalty of 100 penalty units for each day that the offence continues; and
- failure to keep records which attracts a maximum penalty of 1,000 penalty units.
The GEDO has the option of issuing penalty infringement notices where there is a contravention of a civil penalty provision. The GEDO may also accept written undertakings relating to remedying a contravention of the Act. The GEDO can enforce these undertakings through court order.
If a corporation contravenes a civil penalty provision, the Chief Executive Officer of the corporation may also be liable for a civil penalty.
Punitive measures are more likely to be applied in the case of corporations whose data would determine permit allocation or liability for permit acquittal under an AETS.
23. What is a "greenhouse gas project"?
A GHG project is an activity designed to remove or reduce GHG emissions that meet particular requirements to be set out in the Regulations. They must be specific projects which result in verifiable removal/reductions in GHG and not simply the result of facility closures, changes in production levels or corporate acquisition/disposal activities.
A controlling corporation that is not required to register may nevertheless do so if it, or a member of the corporation's group are undertaking or propose to undertake a GHG project.
A registered corporation may, in respect of a financial year, provide a report to the GEDO relating to:
- the reduction of GHG emissions,
- the removal of GHGs; and
- offsets of GHG emissions,
resulting from a GHG project.
GHG emission reductions and removals are defined by reference to Part 2 of ISO 14064. It is proposed that the concept of an "offset" will be carefully defined to ensure that it is limited to projects that involve the retirement of carbon credits to reduce a corporation's emissions (see Q24 below).
All reductions, removals and offsets must be reported separately to the gross emissions of a facility or corporation - that is, they cannot be used to reduce the GHG emissions otherwise required to be reported under the System.
24. What is a "carbon credit"?
A carbon credit notionally represents a quantified reduction in GHG emissions and can be used to offset a corporation's emissions. There is, however, considerable concern and ambiguity about what is meant by a carbon credit, primarily in relation to the integrity of the offset or credit. Due to these concerns, for the purpose of the System, the term will be defined conservatively to ensure that offsets reported by a firm do, in fact, represent an effective reduction in a corporation's emissions profile.
At this time, the Regulations Policy Paper provides that credits will not be capable of being generated within the corporation's reporting boundary but must be externally generated credits; and must otherwise be approved by the Australian Government.
No Australian standard for carbon credits currently exists although the Government has committed to develop an Australian standard by the end of 2008. The Government does, however, currently approve Greenhouse Friendly carbon credits under the Greenhouse Friendly initiative and, at this time, it is likely that only the carbon credits under that scheme would meet the relevant definition. Other types of carbon credits may be capable of being approved once the Australian Offset Standard is finalised.
25. Is a corporation registered in respect of a GHG project required to report its own emissions?
Yes. Where a corporation seeks to register in relation to a GHG project under the Act, and does not meet any of the reporting thresholds in respect of emissions, it will be required to provide a separate GHG emissions inventory.
1 Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard (World Resource Institute and World Business Council for Sustainable Development)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.