The spot price of Australian carbon credit units (ACCUs) has increased significantly over the past year, from about $17 at the start of 2021 to almost $60 at the start of 2022. This is significantly more than the prices of around $12 to $15 per ACCU payable by the Commonwealth Government under Emissions Reduction Fund (ERF) fixed delivery contracts. On 4 March 2022, the Commonwealth Government announced changes which will allow holders of these contracts to apply to be released from their fixed delivery obligations, on payment of an exit fee.
Carbon abatement contracts
The Clean Energy Regulator (Regulator) has power under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (CFI Act) to enter into carbon abatement contracts under which the Commonwealth purchases ACCUs. The Regulator has statutory obligations to maximise the amount of carbon abatement the Commonwealth can purchase, at the least cost.
These carbon abatement contracts are on standard terms. Under fixed delivery contracts, the Seller must provide the agreed number of ACCUs on the agreed delivery schedule for the agreed price. If the Seller cannot provide the ACCUs, it must pay damages to the Commonwealth. These damages are based on the market price of the ACCUs not delivered, capped at the agreed price per ACCU under the contract.
Under the standard terms, the Seller has no right to terminate a fixed delivery contract for convenience. The Seller can only be released from their contractual obligations if the contract is terminated by agreement with the Commonwealth.
High ACCU prices mean it may be financially advantageous for fixed delivery contract holders to decide to default under their contracts with the Commonwealth and pay the Commonwealth damages, then sell their ACCUs for a higher price on the private market. To address the market risks of any widespread disorderly exit from fixed delivery contracts, the Commonwealth has announced a new initiative for fixed delivery contract holders to be released from their obligations.
Exit initiative
Under the new initiative, compliant contract holders in good standing can opt-in to be released from fixed delivery milestones due within six-month windows. This is intended to allow an orderly exit process, to moderate the release of ACCUs to the private market.
An exit fee will be payable, calculated by multiplying the contract price by the quantity of ACCUs to be released (similar to the payment for damages to the Commonwealth under the contract).
Release from contractual obligations will be a two stage process:
- Regulator grants conditional approval for release from delivery milestones.
- Delivery obligation will be cancelled once the exit fee is paid (on or before the delivery milestone due date).
The Regulator is still finalising the process and systems required for the initiative. This will include developing requirements on how additional benefits gained from selling ACCUs for higher prices are shared between contract holders and landholders, which will be relevant when a landholder has appointed and granted carbon rights to a separate carbon services provider for a project on their land.
The Regulator is currently taking expressions of interest for delivery milestones falling due between 4 March 2022 and 30 June 2022. More information is available on the Regulator's website.
Response to initiative
Some industry participants have been seeking a response of this nature from the Commonwealth, given the recent disconnect between ERF contracted prices and the ACCU spot price. This initiative is a means by which holders of fixed delivery contracts will now be able to sell their ACCUs for higher prices, without the risks of choosing to default under their existing contracts, something which could potentially impact on their status as a fit and proper person under the CFI Act. There has been some criticism by the Carbon Market Institute that these changes have been made without public consultation or any overall emission reduction commitments. The ACCU spot price fell to $35.40 following this announcement.
Optional delivery contracts
The changes do not impact optional delivery contracts, under which contract holders have the right, but not the obligation, to sell abatement to the Commonwealth at an agreed price within a set time. Optional delivery contracts are designed to encourage carbon projects as they set a floor price for the project, but do not impose a contractual barrier to seek more lucrative contracts from other buyers.
The restrictive nature of fixed delivery contracts means the carbon market is evolving away from these. The Regulator reports that only 1% of the volume contracted in 2021 was through fixed delivery contracts. For the upcoming ERF auction to be held 5-6 April 2022, fixed delivery contracts are not being offered, only optional delivery contracts.
For more information, please contact HopgoodGanim’s Resources and Energy division.