Carbon funds at the crossroads
In the 12 years since the adoption of the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), the carbon market has evolved from a series of initiatives aimed at helping major greenhouse gas (GHG) emitters meet their Kyoto reduction targets, into a US$126.3 (EUR86.9) billion, international commodity market consisting of multiple buyers, intermediaries and sellers (see World Bank, Report, State and Trends of the Carbon Market, May 2009).
Carbon funds have been active since the market’s inception and continue to play a key role in all forms of carbon investing and trading.
Although the financial crisis has adversely affected the carbon fund market, its impact has been less severe than on other markets. According to the Carbon Funds Directory, as of August 2009, carbon funds held US$16.1 (EUR11.2) billion assets under management (AUM) a 20% increase in relation to the previous year’s figures. In contrast AM by real estate funds rose by 5% during 2008, according to McKinsey & Company
Carbon funds are also facing uncertainties as to their long-term future due to:
The outcome of the 15th Conference of the Parties (COP) under the United Nations Framework Convention on Climate Change (UNFCCC), which took place in Copenhagen between 7-19 December 2009 (COP 15).
Proposed climate change legislation in the US.
The creation of new emissions trading schemes outside the EU.
Against this background, this article:
Examines the definition and evolution of carbon funds.
Assesses the impact of the financial crisis on the carbon market.
Provides an overview of the key policy challenges facing carbon funds.
The definition and evolution of carbon funds
Carbon funds invest in a relatively new and highly specialised asset class. Some readers may therefore be unfamiliar with what carbon funds are or how they operate.
The term “carbon fund” describes an investment vehicle that seeks either to repay investors in carbon credits, or to use income from selling such credits to generate or enhance investment returns (see Carbon Finance Glossary).
Carbon funds comprise many different structures including:
Supranational development banks, governments and private sector bodies are the main carbon fund managers.
Carbon funds can acquire four types of carbon credit:
Certified emissions reductions (CERs) from Clean Development Mechanism (CDM) projects;
Emission Reduction Units (ERUs) from Joint Implementation (JI) projects; or
Voluntary emission reduction (VER) from emission reductions projects not covered by the Kyoto Protocol (see PLC Environment, Practice Note, CDM and JI - Clean Development Mechanism and Joint Implementation projects ( www.practicallaw.com/4-205-2962) ).
Emission allowances and/or derivatives linked to emissions reductions.
They can obtain these credits and allowances from two main sources:
Directly from the emissions reduction project in the case of CDM and JI credits (primary market).
Through a carbon trading platform in the case of EUAs and futures linked to carbon emissions (the futures contracts are physically settled, see European Climate Exchange (ECX) CER Futures- Contract Specifications) (allowances and futures market).
Through bilateral, over the counter (OTC) contracts in the case of forwards linked to carbon emissions (see PLC Environment, Legal Update, Carbon trading: how does the market work?, 27 January 2009 ( www.practicallaw.com/5-384-7913) and PLC Environment, Practice Note, Emissions trading schemes: overview ( www.practicallaw.com/9-366-4077) ).
Carbon funds managed by development banks
The World Bank’s Prototype Carbon Fund (PCF), launched in April 2000, was the first carbon fund ever established.
The PCF is structured as a close-ended, multi-donor, international trust fund comprising:
The World Bank as trustee and manager.
Six governments and seven private sector companies as investors (Participants) (see International Bank for Reconstruction and Development, Amended and Restated Instrument Establishing the Prototype Carbon Fund).
The PCF receives contributions from the Participants, which it uses to source carbon credits from CDM and/or JI projects by signing Emissions Reduction Purchase Agreements (ERPAs) with the project proponents or sponsors.
An ERPA is an agreement governing the sale and purchase of project-based emission reduction credits (the unit of currency that the projects generate). ERPAs have become the standard contractual mechanism for the direct acquisition of carbon credits from overseas projects (for a sample standard ERPA, see International Emissions Trading Association (IETA), Emissions Reduction Purchase Agreement, version 3.0 (2006)).
The fund then distributes the CERs and ERUs generated by the projects it invests in to the Participants pro rata to their original contributions.
Since its creation, the PCF has invested in 24 projects ranging from biomass to conservation. On 23 March 2007, the fund closed its portfolio to new projects having fully committed its US$180 (EUR124.9) million capital.
The World Bank remains a significant player in the carbon market. As of January 2009, the World Bank, through its specialised Carbon Finance Unit (CFU), managed 13% of all carbon funds (see ICF International, Report, Carbon Funds Outlook, January 2009 ).
The bank has also launched several pioneering carbon facilities, such as the BioCarbon Fund, which invests in “land use, land-use change, and forestry” (LULUCF) projects not currently eligible for CDM or JI credits under the Kyoto Protocol.
Other multilateral organisations, such as the European Investment Bank (EIB), also administer carbon funds, primarily on behalf of investors who need the resulting credits for compliance purposes.
Government carbon funds
Government carbon funds are managed by different entities depending on the policy framework under which they are created. These policies can consist of:
Carbon procurement programmes or tenders such as The Netherlands’ Emission Reduction Procurement Tender (ERUPT) and Certified Emission Reduction Procurement Tender (CERUPT) programmes.
Funds managed by external appointees on behalf of, or in conjunction with, government departments such as:
Development banks (see above) or;
Private sector fund managers, banks or corporate bodies.
Some governments, such as The Netherlands, use a combination of the above methods as part of their national emissions reduction programme. The UK government has taken a policy to meet its Kyoto targets mainly via domestic action rather than buying credits although it encourages the private sector to do so both for compliance and, to boost the development of the secondary market in carbon, onward trading purposes. Had the UK government chosen to buy credits, it would have probably relied on one or more of the above methods.
Private carbon funds
The development of the European Union Emissions Trading Scheme (EU ETS), a ‘cap and trade’ system which aims to reduce the emissions of heavy industries across the EU, created an additional compliance need for allowances and hence laid the foundations for the market for privately-owned and managed carbon funds (see PLC Environment, Practice Note, EU Emissions Trading Scheme ( www.practicallaw.com/5-205-2952) ).
According to Andreas Gunst, a lawyer in DLA Piper's Energy and Water group, “The EU ETS has become the driving force behind the international carbon market”. Gunst further notes that “The establishment of the EU ETS led to the rise of secondary and structured carbon transactions, thus attracting a new class of speculative carbon fund manager, which is not interested in the carbon credits themselves, but the financial returns that these credits can generate for their investors”.
As Gavin Tait, a carbon trading expert most recently Head of Carbon Trading at ABN AMRO, notes, the development of a secondary market attracted other primary investors such as banks, hedge funds and commodity speculators, which began investing in projects in order to sell the resulting credits in the secondary market and exploit the price differentials between primary and secondary. This kind of carbon investor behaves very differently from carbon funds that invest in projects because their investors have compliance obligations.
According to the ICF International report, over 50% of carbon funds are privately managed. The 2009-2010 edition of the Carbon Funds Directory further notes that ten out of the 12 carbon funds raised between 2008 and 2009 were private sector-administered, compared to just two governmental or development bank-managed initiatives.
Private carbon funds have rapidly evolved into sophisticated entities. Private carbon fund managers are also involved in a wider range of investment activities across the carbon credit value chain than their development bank or government-managed counterparts. Some private carbon funds operate as carbon asset management companies dealing with all matters relating to carbon investing”.
For instance, First Climate operates as an “integrated carbon asset management company”. First Climate’s activities include:
Developing and financing projects.
Purchasing or brokering purchases of CER, ERU and VERs.
Executing trades and offering bespoke trading products to companies subject to the EU ETS.
Giving technical assistance to companies in the VER sector.
Advising institutional investors and other funds on their investments.
Although there is a little publicly available data on the financial performance of private carbon funds, there is some evidence to suggest that it can be strong. For instance, the European Carbon Fund, managed by Natixis, has reported annual returns of 27.8% since its establishment in 2005.
Impact of the financial crisis
According to a recent World Bank report, the carbon market’s global transacted value reached US$126.35 (EUR86.9) billion in 2008, double its 2007 value (see The World Bank, Report State and Trends of the Carbon Market, May 2009).
Transactions involving allowances under the EU ETS (EUAs) accounted for almost 72% (US$92 (EUR63.9) billion) of all carbon trading activity.
The value of primary transactions in 2008 reached US$7.2 (EUR5) billion, a slight decrease from nearly US$8.2 (EUR5.7) billion in 2007, which supports the view that primary investment in CDM and JI projects has decreased in importance relative to other forms of carbon investment. According to Tait, one of the key reasons for the decline in value of primary transactions is that most of the “low hanging fruit” has already been taken. The projects that carbon funds and banks are currently investing in tend to be more marginal in payoff terms. Uncertainty about the value of post-2012 credits may have deterred some of the more marginal projects.
In contrast, the US$26 (EUR18) billion market for secondary CERs (comprising spot, futures and options contracts) grew five-fold in both value and volume between 2007 and 2008 and is currently the second largest segment of the carbon trading market. Tait attributes the growth in trading value of secondary CERs to the compliance needs of EU ETS investors. He also notes that banks and hedge funds have recently begun acquiring them for short-term speculative trading purposes.
Although the European Climate Exchange (ECX) remains the global epicentre of emissions trading, other exchanges are gaining in importance. As Tait explains “In the early days of the market, voice brokers were hugely dominant. This was because the biggest players in the market were utility companies who already used those brokers to trade coal, gas and electricity. Several exchanges then began to compete, notably ECX, Bluenext and Nordpool. The ECX became the dominant player in the market and eventually managed to overtake the volume traded by voice-brokers, when the credit crisis meant participants preferred to trade using cleared futures contracts”.
The overall impact of the financial crisis on carbon funds will only become clear once the performance data for 2009 is published. However, the current consensus among practitioners is that the financial downturn’s impact on primary investment and trading activity has been less severe than on other sectors such as property funds (see above). Tait notes that this could be due to the fact that investors in carbon funds have compliance needs for the resulting credits.
The difficult economic circumstances of the past year have nevertheless affected carbon funds in several ways, including:
A nine percent drop in the amount of capital that new funds expect to raise according to the ICFI report.
A search for new revenue streams beyond CDM and JI credits.
Increased consolidation of the carbon funds market.
A continuing increase in secondary and structured transactions, evidenced by the closure or suspension of eight funds between August 2008 and August 2009 and several acquisitions of carbon funds.
Tait concludes that “The speculative froth surrounding carbon projects may have diminished due to the financial crisis, causing hedge funds and banks to scale back their involvement. However, the compliance needs for CERs and ERUs means that it is pretty much business as usual for most carbon funds. Indeed, the reduced competition from financial institutions may make life easier for traditional carbon funds”.
According to the 2009/2010 edition of the Carbon Funds Directory, as of October 2009 there were:
88 carbon funds with over US$16 (EUR11.1) billion AUM.
Six vehicles under development, looking to raise US$3.23 (EUR2.24) billion.
Out of the 30 funds that took part in the Directory’s survey:
22 hoped to raise up to US$ 1.01 billion (EUR700 million) into existing vehicles.
16 intended to launch new funds with a forecast US$1.26 billion (EUR870 million) AUM.
These figures underscore the continuing growth of carbon funds despite the crisis but also indicate a decline in fundraising compared to previous years.
Some investment managers are avoiding carbon funds altogether. In October 2009, Robeco, a private equity investor focusing on sustainability and clean technology, stated its decision not to invest in carbon funds due to the unwarranted influence that political developments can have on their financial performance. Tait also notes an emerging gathering consensus towards direct action and away from carbon offsetting.
Although the United Nations Framework Convention on Climate Change (UNFCCC) conference that took place in Bali during December 2007 (Bali Conference) confirmed that project-based mechanisms would continue when the first commitment period under the Kyoto Protocol expires in 2012 (see PLC Environment, Legal Update, What, if anything, was decided at Bali?, 18 December 2007 ( www.practicallaw.com/6-379-9563) ), practitioners expect the CDM and JI mechanisms to be modified in the near future (see below, Copenhagen and beyond).
New revenue streams. Despite the uncertainty surrounding the CDM and JI mechanisms, fund managers continued to raise CDM and JI funds during 2008 and 2009, including funds targeting post-2012 CDM/JI credits (such as the EIB’s Post 2012 Carbon Credit Fund, which signed two ERPAs for the off-take of 2013-2020 credits in June 2009).
However, practitioners have noted that the diminished appetite for raising new carbon funds has been particularly marked among those funds with a focus on CDM/JI projects. Gunst explains that “Many early market movers have closed their funds to the extent that their capital is fully invested” due to a number of reasons including:
Uncertainty over the post-2012 agreement and how this agreement will change CDM (see below, Copenhagen and beyond).
The length and cost involved in approving and registering CDM projects, which can take more than one year in some cases.
Concerns about the ability of some CDM projects to establish “additionality” (the need for emission reductions achieved by a given project to be demonstrably additional to those which would be achieved in a business-as-usual scenario) (see PLC Environment, Practice Note, Carbon Offsets ( www.practicallaw.com/5-212-8952) ).
Increased diversification in carbon fund investment strategies.
The fact that a lot of the “low hanging fruit” has already been taken.
Concerns that expected demand from proposed trading schemes outside Europe, notably the USA and Australia, is currently looking less certain.
Martijn Wilder, who heads Baker & McKenzie's Global Environmental Markets Practice, notes that “Although funds are still investing in CDM projects, some fund managers are broadening their portfolios to generate additional revenue streams by providing development capital or project finance other types of GHG reduction projects”. For example Masdar , renewable energy company backed by the government of Abu Dhabi, recently abandoned plans to launch a carbon fund in favour of a joint venture with a utility company to invest in carbon abatement projects “as owners and operators”.
According to Wilder “There is no doubt that the downturn has impacted on global carbon fundraising; several funds have stalled in their fundraising due to the economic climate”.
The financial crisis, and the possible adoption of a post-2012 agreement on climate change during 2010, could result in increased consolidation among carbon funds. JP Morgan’s £129 (US$211) million acquisition of EcoSecurities and the ongoing merger talks between UK-based Trading Emissions and Leaf Clean Energy provide early evidence of a possible wave of merger activity among carbon funds.
Derivatives linked to emission reductions
The growth of secondary trading has been partly driven by the steep rise in derivatives linked to carbon assets, notably:
Forward contracts, which are settled over the counter (OTC ( www.practicallaw.com/0-107-6956) ).
There is also an increasingly active options market in both CERs and EUAs
The increasing volume of trading in derivatives linked to carbon assets has prompted regulators such as the UK’s Financial Services Authority (FSA) to investigate their potential risks (see box, Emissions-linked derivatives: the regulatory response so far).
International and domestic policy challenges facing carbon funds
The long-term commercial viability of the carbon market will be heavily influenced by recent and upcoming international and domestic developments notably:
The outcome of COP 15.
Proposed climate change legislation in the US.
The establishment emissions trading systems outside the EU.
Copenhagen and beyond
The initial aim of COP15 was to reach an international agreement to tackle climate change when the first compliance period under Kyoto Protocol ends in 2012. In the end, COP15 only produced a brief, non-binding, political declaration (Copenhagen Accord) (see PLC Environment, Legal Update, Outcome of the Copenhagen negotiations: a brief summary, 22 December 2009 ( www.practicallaw.com/7-501-0972) ).
The Copenhagen Accord sets out a framework for the negotiation of a new global agreement over the coming years. Specific policy proposals include:
Reform of the CDM system. COP 15 examined several proposals to streamline the CDM project cycle and improve developing country access to CERs. The following changes to CDM are still under discussion:
The introduction of sectoral approaches, whereby an industry sector reduces its emissions against a benchmark. Avoided emissions below the benchmark then generate tradable credits.
Standardised, multi-project baselines based on project activity types and/or sectors. This could reduce the burden of establishing baselines on a project-by- project basis and facilitate an equitable geographical distribution of CDM projects.
COP15 considered making carbon capture and storage (CCS) projects CDM-eligible and there are ongoing discussions on this proposal (see PLC Environment, Practice Note, Carbon capture and storage:overview).
Forestry credits. The current CDM mechanism only allows afforestation or reforestation projects to generate credits, but does not include deforestation, which accounts for almost 20% of GHG emissions.
There are proposals to extend the scope of CDM credits to LULUCF activities, such as sustainable forest management and restoration of wetlands.
A further proposal advocates extending the scope of LULUCF to include projects reducing emissions from deforestation and forest degradation (REDD) and REDD+ (which includes conservation and the enhancement of carbon stocks in existing forests). The extension of the CDM network to REDD and REDD+ could create opportunities for developing countries to increase their participation in the carbon market.
According to a recent Norton Rose survey which examined the business community’s hopes and expectations for Copenhagen (Norton Rose survey), business leaders support reform of the CDM and the development of new market mechanisms. 70.6% of the respondents believe that climate change cannot be effectively combated without new flexible mechanisms that can mobilise both public and private sector finance (see Hopes for Copenhagen, a Norton Rose Group Survey).
Although the Copenhagen Accord acknowledged the pivotal importance of reducing emissions from deforestation and the immediate need for an incentive, it set out no detail or timetable for achieving this (see PLC Environment, Practice Note, Copenhagen conference: post Kyoto Protocol ( www.practicallaw.com/5-500-8300) ).
Technology transfer. The climate change negotiations discussed the need to devise a framework for transferring clean technologies to developing nations, which could involve:
Relaxing intellectual property (IP) laws to facilitate technology transfer.
Establishing an international clean technology transfer mechanism.
The Accord contains an agreement to establish a Transparency Mechanism to speed up the transfer of technology on mitigation and adaptation but provides no detail on this.
Initial conclusions from Copenhagen. Although the Copenhagen Accord is merely a political declaration without binding force that does not even set a timetable for achieving a legally binding agreement, practitioners hope that a legally binding agreement that will emerge in due course.
While carbon investors would have welcomed a legally binding agreement at this stage, Tim Baines, a senior advisor on climate and clean energy at Norton Rose LLP’s climate change and clean energy team, argues that “The market is moving regardless, partly as a result of the proliferation of new emissions trading schemes beyond the EU’s borders” (see below). Private sector companies, under pressure from a number of external stakeholders, have also set up several initiatives aimed at enhancing their environmental governance (see box, Stakeholder pressure to improve companies’ environmental governance).
Climate change legislation in the US
On 26 June 2009, the House of Representatives passed the American Clean Energy and Security Act of 2009 (the Waxman-Markey bill).
At the time of writing, the US Senate is considering two further proposals, the Clean Energy Jobs and American Power Act (the Kerry-Boxer bill) and a bipartisan proposal unveiled by Senators John Kerry, Lindsay O. Graham and Joseph I. Lieberman (Kerry-Graham-Lieberman proposal) (http://kerry.senate.gov/cleanenergyjobsandamericanpower/intro.cfm). As Jeff Gracer, a leading environment lawyer at Sive Paget & Riesel in New York notes, “The legislative scenario in the Senate is very fluid right now. There is a good chance that Congress will pass climate change legislation in 2010, because most companies strongly prefer that Congress steps in to create clear rules, but political opposition must be overcome before the necessary votes are obtained ”. If the Senate passes either proposal, it will then be combined with the Waxman-Markey bill. At the time of publication, adoption of the proposed legislation risked being delayed or even abandoned as a result of opposition from several prominent Democrat Senators.
The proposals’ common building block is the establishment of a cap-and-trade system (US ETS). As Gracer explains “There will be a regulatory cap on GHG emissions designed to achieve an emissions reduction of 17% below 2005 levels by 2020 and 83% by 2050. In order to meet this cap, the government will issue tradable allowances, which major emitters will either acquire for free or purchase from the Government”. There will also be approximately US$2 billion dollars in offset credits outside the cap for companies that implement emissions reduction projects that are not required by law”.
The bills propose the use of up to two billion credits for compliance purposes annually. Each entity covered by the ETS will be able to use offset credits to cover about 30% of their GHG emissions, half of which they can source from overseas projects (75% in some circumstances, during the legislation’s early years). However, this would be subject to a requirement that the host country be party to a bilateral or multilateral agreement with the US setting out criteria and standards for offset projects.
The bills intend to authorise the US Environmental Protection Agency (EPA) to recognise credits issued under the CDM (or any subsequent successor mechanism), subject to an agreement between the US and the host country. EUAs could also be traded in the US ETS, subject to a number of restrictions.
Other significant aspects in the proposals include:
Allocating US$190 (EUR131.8) billion to investment in clean technologies until 2025, including:
US$90 (EUR62.4) billion to renewable-energy and energy-efficiency programmes;
US$60 (EUR41.6) billion to CCS;
US$20 (EUR13.9) billion to electric and other advanced vehicles technologies; and
US$20 (EUR13.9) billion for basic research and development (R&D). Gracer believes that this proposal could further incentivise venture capital investment in clean technology, which already reached a record US$5.9 (EUR4.1) billion in 2008 (see, PLC Article, The geography of cleantech ventures, 1 November 2009 ( www.practicallaw.com/1-500-8340) ).
Establishing a renewable electricity standard that would require States to produce 6% of total electricity from renewable sources by 2012 and 20% by 2020.
Commentators expect the climate change legislative proposal to encounter strong opposition in the Senate. Gracer believes that the votes of Senators from coal-mining States will be of pivotal importance. “Any successful proposal will need to mitigate the economic impact on coal-burning power plants and the economies of the states they’re based in”. A possible solution might be to allocate free GHG credits to a significant number of sources in the near term, with the expectation that, as technology develops, these credits will have to be purchased. Gracer also highlights the Kerry-Graham-Lieberman’s bill stronger emphasis on promoting nuclear power and domestic oil & gas development.
If Congress ultimately fails to enact climate change legislation, the EPA will regulate GHG under the Clean Air Act, following the US Supreme Court ruling in Massachusetts v EPA in 2007 and the recent findings by the EPA that GHGs endanger public health and welfare (see EPA, Press Release, EPA: Greenhouse Gases Threaten Public Health and the Environment / Science overwhelmingly shows greenhouse gas concentrations at unprecedented levels due to human activity, 12 December 2007). According to Gracer “If Congress fails to regulate GHG reductions, the EPA will do so under its existing authority, which gives it far less discretion to mitigate the impact of regulation on the economy. Moreover, any effort by the EPA to establish a cap-and-trade scheme without express legislative authorization could be challenged on its merits. In contrast, Congress is in a position to offer companies the certainty, flexibility and predictability that legislation brings”. Gracer also notes that US Courts have recently began to recognise that companies can be sued for climate change impact and, unless the Supreme Court reverses these decisions, there remains a litigation risk that only legislation can fully pre-empt.
The adoption of climate change legislation by the US Congress could have a major impact on the global carbon market:
It would formally bring the world’s largest economy and second-largest GHG emitter squarely into the international carbon market, creating an unprecedented number of investment opportunities.
It is generally accepted that the US will not support an international binding climate change agreement until it has clarified its domestic position. As Baines notes “It would have been very encouraging if the US had been able to commit to a single emissions reduction target at COP15 but we have to face the political reality that the major global emitters are not going to accept legally binding targets at this stage”.
Other domestic emissions trading initiatives
Several other jurisdictions are considering or implementing national emissions trading schemes. According to Baines, “This evidences the way in which countries are recognising the importance of tackling climate change”. For many market participants, these national initiatives are as important as developments in the international arena. 96% of respondents to the Norton Rose survey believe that there are business opportunities in their jurisdictions as a result of the drive to reduce carbon emissions.
New Zealand. On 11 September 2008, the New Zealand parliament passed the Climate Change (Emissions Trading) Act, which established a national emissions trading scheme (NZ ETS). Some of the scheme’s key aspects are set out below:
It is an economy-wide, all-gases scheme covering all GHGs and sectors of the economy, including agriculture.
The NZ ETS’s primary trading allowance is the New Zealand Unit (NZU). Each NZU is backed by an Assigned Amount Unit (AAU) and can be traded internationally.
Unlike the EU ETS, the NZ ETS gives NZUs allocated to forestry projects the same treatment as non-forestry NZUs for trading and compliance purposes. Incentives for afforestation have applied since September 2008.
The NZ ETS fully recognises and permits international trading.
Following a change of government combined with early criticism of the NZ ETS, on 25 November 2009, the New Zealand parliament passed the Climate Change Response (Moderated Emissions Trading) Amendment Act. This significantly reduced the ambition of the scheme and made several amendments to the legislation, such as:
The introduction of a transitional period, finishing at the end of 2012, during which the energy and transport sectors’ compliance obligations will be halved so that they only need to surrender one emission unit for every two tonnes of emissions.
A cap of NZ$25 (US$18.4) per unit during the transitional period.
A delayed (2015) entry into the scheme for the agricultural sector.
Australia. Australia recently abandoned plans to establish an emissions trading scheme. On 2 December 2009, the Australian Senate rejected the Australian Climate Change Regulatory Authority Bill 2009 [No. 2], which would have established the biggest ETS outside of Europe, covering 75% of Australian emissions. Although Wilder laments this setback, he notes that “We are seeing a global pattern towards cap-and-trade schemes emerging, which could make the Australian Parliament reassess its position in the near future”.
Baines concludes that these nascent ETSs single out emissions trading as the business community’s preferred market-based option for combating climate change due to its cost, flexibility and ability to accommodate the needs of different business structures. However, he cautions that ETSs should not be viewed as the only panacea for combating climate change and are always to be complemented by other policies. The critical thing is that they put a price on carbon which is transparent"
The coming years will be make or break time for the carbon market and consequently for the carbon fund industry. If governments can agree on a binding post-2012 agreement and emissions trading schemes, particularly in the US, continue to proliferate, the total size of the carbon market could reach US$3 (EUR2.1) trillion by 2020 according to a May 2008 report published by Point Carbon, a European consultancy and analyst service in global power and carbon markets (see Point Carbon, Carbon Market Analyst, Carbon market transactions in 2020: Dominated by financials? 21 May 2008).
As the post-2012 environment slowly begins to develop both as a result of international negotiations and implementation of national trading schemes, carbon funds will face decisions of strategic direction they have not had to confront since Kyoto. The types of projects and geographies they invest in may change significantly as may the credits earned or carbon taxes reduced. But, since action on climatic change necessarily involves large scale investment in physical projects, it is hard to imagine that these groups that have amassed such expertise over the last few years will not continue play a significant role.
As markets and schemes continue to change, however, so too should we expect the form of these funds to evolve.
Derivatives linked to emission reductions: the regulatory response so far
In March 2008, the Financial Services Authority (FSA) published a report entitled "The emissions trading market: risks and challenges" where it:
Identified several risks specific to the emissions trading market, such as
Market foundation risks, such as the potential impact of over- or under-allocation of underlying emissions allowances on market confidence;
Market integrity risks; such as the potential undermining effect of any activity that could lead to unfavourable comment against the emissions market;
Market infancy risks; such as the potential impact of the market’s short history on risk management strategies;
Information risks; such as the need to ensure the timely and thorough release of information in order to maintain market confidence; and
Liquidity risks, which could be exacerbated by the emergence of new emissions trading venues.
Concluded that, despite these risks, the market was presently functioning well.
Decided not to assume additional regulatory responsibility for the time being, other than ongoing monitoring of relevant developments (see Practice note, The FSA's report on risks and challenges in the emissions trading market ( www.practicallaw.com/1-381-9511) ).
The likely regulatory reform of OTC derivatives in the US could also impact on trading of forwards linked to carbon credits if the current climate change legislative initiative goes ahead (see PLC US Corporate & Securities and PLC US Finance, Practice Note, Financial Regulation Reform Initiatives ( www.practicallaw.com/9-386-5636) ).
Stakeholder pressure to improve companies environmental governance.
In addition to existing and proposed international and domestic climate change legislation, companies are coming under pressure from investors, insurers, and civil society to provide information on their GHG emissions and implement climate change strategies. This has led to the establishment of several initiatives such as:
The Carbon Disclosure Project (CDP), which represents 300 institutional investors.
Ceres , a US-based network of investors, environmental organisations and public interest groups working with companies and investors to address global climate change and sustainability.
The FORGE Group an informal network of large banks and insurers (for more information see PLC Environment, Practice Note, Carbon Disclosure Project and other climate change pressure from investors and insurers ( www.practicallaw.com/2-383-3031) ).