41 viktor

Sub-seabed Carbon Dioxide Storage Regulation in

the European Union Environmental Law, the Law of the Sea and Liability

Viktor Weber

24.02.2012 Titel der Präsentation Seite 2

The ECO2 Project

• A collaborative project funded under the European

Commission’s Framework Seven Programme

• The programme examines the scientific, social and legal

aspects of sub-seabed carbon dioxide storage

• WP5 – Risk assessment, economic and legal studies

Three layers of law

• Public international law

• Treaty based, depends on States’ will to ratify

• European law

• The main instruments are regulations and directives; they are

binding on the Member States.

• Domestic law

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Public International Law Instruments

• United Nations Convention on the Law of the Seas 1982

(UNCLOS)

• International Convention on the Prevention of Marine

Pollution by Dumping of Wastes and Other Matter 1972

(the London Convention with its 1996 Protocol and

2006/7 Amendment)

• Convention for the Protection of the Marine Environment

of the North-East Atlantic 1992 (the OSPAR Convention)

• The Basel Convention on the Control of Transboundary

Movements of Hazardous Waste and their Disposal

1989 (the Basel Convention)

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Legal questions to be answered

• Should we classify carbon dioxide as waste or as

product?

• If we classify carbon dioxide as waste, should we

classify it as hazardous waste?

• Should we classify carbon dioxide as a pollutant?

• If carbon dioxide is not specifically referred to in a treaty,

does it mean that the treaty does not apply to it?

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The main legal issue

• There is a general willingness at international level to

legitimise carbon dioxide storage.

• The real question is who is to be responsible, to whom

and to what extent, should leakage or environmental

damage occur.

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Directive 2009/31/EC

• Directive 2009/31/EC on the geographical storage of

carbon dioxide

• Sets out a basic regulatory framework which is binding on the

Member States

• Describes the quality of carbon dioxide that can be accepted for

storage purposes

• Provides for the transfer of responsibility to the state

• Financial provisions

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Directive 2009/31/EC

• Upon closure of the storage site, the responsibility is

transferred to the State provided that the conditions laid

down in Article 18 are satisfied.

• the site has to be closed pursuant to Article 17

• all available evidence indicates that the stored CO2 will be

completely and permanently contained

• a minimum period, to be determined by the competent authority

has elapsed. This minimum period shall be no shorter than 20

years unless the competent authority is convinced that the

criterion referred to in the previous point is complied with before

the end of that period

• the financial obligations referred to in Article 20 have been

fulfilled

• the site has been sealed and the injection facilities have been

removed Seite 8

Paragraph 7, Article 18

• “In cases where there has been fault on the part of the

operator, including cases of deficient data, concealment

of relevant information, negligence, wilful deceit or a

failure to exercise due diligence, the competent authority

shall recover from the former operator the costs incurred

after the transfer of responsibility has taken place...”

• Broad reach but the meaning of these terms is to be

established according to domestic law.

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Is this transfer of responsibility a novelty?

• Not a drastic departure from the ‘polluter pays’ principle

as set out by directive 2004/35/EC - The directive does

not create an unconditional and total transfer of liability.

The legal obligations transferred relate to monitoring and

corrective measures. Negligent operators will still be held

liable.

• Also, operators upon the closure of the site shall make a

financial contribution to the State covering the expenses

of at least 30 years of monitoring. However, any

subsequent monitoring is the State’s burden.

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Domestic law

• Licensing

• The exact way of establishing liability

• Taxation

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Thank you!

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