CARBON CAPTURE and STORAGE - SOME INTERNATIONAL LEGAL PERSPECTIVES

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CARBON CAPTURE and STORAGE- SOME INTERNATIONAL
LEGAL PERSPECTIVES

• Professor Richard Macrory CBECentre for Law and
  the Environment, University College
  LondonClimate Change and Its Challenges for the
  
• International Legal System, London 17 Oct 2008

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London Dumping Convention1972 and London
Protocol 1996

• Global conventions to regulating dumping of waste
  at sea
• In March 2006 the London Protocol in force, and
  will eventually supersede the Convention.
• Both instruments continue to apply in parallel
  until full ratification of Protocol
• Significance they deal with CCS in different
  ways

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London ConventionKey Legal Issues Concerning CCS
- I

• Dumping of CO2 not prohibited as such but general
  permit as wastes or other matter required
• Jan 1996 industrial waste included in Annex I
  - dumping absolutely prohibited. Defined as waste
  materials generated by manufacturing or
  processing operations
• No consensus as to inclusion of CO2 within this
  category.

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London ConventionKey Legal Issues Concerning CCS
- II

• Exceptions to definition of dumping (Art
  III.1(b))
• Waste disposed of during normal operations
• CO2 injection into seabed for Enhanced Oil
  Recovery permissible?
• Placement for purposes other than mere
  disposal, provided not contrary to aims of
  Convention
• CO2 injected for EOR or climate change
  mitigation?
• No consensus
• Sub-seabed storage of CO2 in any event not
  covered by convention? Sea means all marine
  waters other than internal waters (Art III)

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London Protocol

• More clearly applies to sub-sea bed, though still
  arguments as to precise meaning, and note
  exclusion direct from land
• "Sea" means all marine waters other than the
  internal waters of States, as well as the seabed
  and the subsoil thereof it does not include
  sub-seabed repositories accessed only from land.

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London ProtocolKey problem concerning CCS

• More restrictive measures for dumping of waste
• States required to prohibit dumping of all waste
  save for those listed in Annex 1.
• Dumping of Annex 1 materials requires permit
  issued in accordance with Annex 2.
• None of categories originally listed in Annex I
  allowed for CO2 storage

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Amending the Protocol

• 2004 UK initiated process. Set up Legal and
  Technical Working Groups to clarify issues and
  areas of doubt
• 2005 - 27th Consultative Meeting
• Acknowledges CCS role in abating climate change
  and ocean acidification
• Recognised differing legal interpretations
• Agreed London Convention and Protocol has role to
  facilitate and/or regulate commissions working
  groups

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Process of Amendment

• April 2006
• Technical WG Risk Assessment Framework and Waste
  Assessment Guidance
• Legal WG Options for clarification/amendment
  drafted possible amendment for Annex 1 to include
  CO2..
• Amendment to Annex 1 formally proposed by
  Australia, co-sponsored by UK, Norway, France
  Spain
• Nov. 2006 Consultative Meeting
• Amendment resolution adopted 12 parties in
  favour, 5 abstain, 12 not present

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London ProtocolTimescale and process of amendment

• 10 February 2007
• Amendment enters into force for all Contracting
  Parties to Protocol, save for those sending
  declaration under Article 22 regarding inability
  to accept amendment.

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London ProtocolEffect of the Amendment to Annex I

• To allow storage of CO2 in sub-seabed geological
  formations.
• CO2 streams from CO2 capture processes for
  sequestration only if
• Into a sub-seabed geological formation
• Consists overwhelmingly of CO2. May contain
  incidental associated substances derived from the
  source material and capture and sequestration
  processes used
• No wastes or other matter are added for the
  purpose of disposal.

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Overwhelmingly

• Potential political problem
• Greenpeace International drew attention to risks
  of the integrity of long-term storage
• Proposed the replacement of the term
  overwhelmingly with a quantitative purity
  limit, recommending 99.9 CO2 as a justifiable
  and achievable limit value.

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London ProtocolOutstanding issue cross
boundary exportation

• Article 6 prohibition on the exportation of
  waste
• February 2008 Legal and Technical WG agree that
  this means transboundary transport of CO2 not
  allowed
• Amendment proposed.
• Greenpeace International present as an observer
  and (with Germany and Italy) proposed additional
  condition for CO2 export for storage
• if disposal of CO2 streams from a particular
  source is not feasible within the State of
  origin
• Meeting of Contracting Parties to decide on
  Amendment.

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Some Observations on London Dumping Protocol

• For an international convention and largely
  unproven technology, very fast process of
  amendment - two years from when issue first
  proposed
• Although NGO had some involvement, did process
  capture public confidence?

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Other CCS Issues Need Resolving

• INTERNATIONAL
• OSPAR Convention (restrictive)
• Status of CCS with Emissions Trading under
  Climate Change Convention (enabling)
• Status of CCS as Clean Development Mechanism
  (enabling)
• Transboundary movements of waste (restrictive)

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Regional/ National Level

• Process permitting regime
• Transportation
• Storage licence procedures - environmental
  assessment etc.
• Length of storage licences and transfer
  provisions back to State
• Liability regimes

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International Energy Agency

• 2008 IEA establishes global network of CCS
  regulators in conjunction with Carbon
  Sequestration Leaders Forum and UCL Centre for
  Law and Environment
• Ist meeting in Paris in May 2008 - over 150
  participants
• Further telephonic conferences (transportation,
  pilot demonstration projects)
• Not aiming for harmonized regime but learning
  from each other

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UCL Carbon Capture Legal Programme

• STERN Review calls for free exchange of
  information in relation to CCS
• Legal contribution to have a open access and
  freely available resource site
• www.ucl.ac.uk/cclp