The new proposed EU legislation on geological carbon capture and storage (CCS): A first impression of the commission's proposed framework on CCS

European Energy and Environmental Law Review

Volumn 17, Issue 2, 2008, Pages 90-105

  Schurmans, Marijke ^a   van Vaerenbergh, Alec ^a  

^a DLA Piper Rudnick Gray Cary UK LLP   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

CARBON SEQUESTRATION; ENVIRONMENTAL LEGISLATION; EUROPEAN UNION;

EID: 44649125518     PISSN: 09661646     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (95)

1. The targets cover six main greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulphur hexafluoride (SF6).
2. See http://unfccc.int/kyoto_protocol/items/2830.php - last visit 8 February 2008.
3. Ibid.
4. EU Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol and defining emission reduction targets for each Member State.
5. All meeting group reports and speeches are available online: http:// ec.europa.eu/environment/climat/stake_conf.htm
6. http://en.wikipedia.org/wiki/Carbon_capture_and_storage#Cost_of_CCS
7. See e.g. http://www.tyndall.ac.uk/publications/working_papers/wp45.pdf
8. ISBN publication (number 1 898 373 28 0) "Putting Carbon Back in the Ground", IEA Greenhouse Gas R&D Programme.
9. [IPCC, 2005] IPCC special report on Carbon Dioxide Capture and Storage. Prepared by working group III, B. Metz, O. Davidson, H.C. de Coninck, M. Loos, and L.A. Meyer (eds.), Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 442 p.
10. http://en.wikipedia.org/wiki/Carbon_capture_and_storage#_note-2
11. Ibid.
12. Ibid.
13. Ibid.
14. For more information with regard to projects: http://ec.europa.eu/ research/energy/pdf/co2capt_en.pdf
15. [IPCC, 2005] IPCC special report on Carbon Dioxide Capture and Storage. Prepared by working group III, B. Metz, O. Davidson, H.C. de Coninck, M. Loos, and L.A. Meyer (eds.), Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 442 p. Available in full at www.ipcc.ch
16. http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/ 36&format=HTML&aged=0&language=EN&guiLanguage=en
17. Impact assessment, COM(2008), X, final, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide, 23 January 2008, 2.
18. The IPPC Directive has recently been codified (Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control).
19. Impact assessment, COM(2008), X, final, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide, 23 January 2008, 3.
20. The "integrated approach" means that the permits must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste, use of raw materials, energy efficiency, noise, prevention of accidents, and restoration of the site upon closure. The purpose of the Directive is to ensure a high level of protection of the environment taken as a whole.
21. In EPER, emission data reported by Member States are made accessible in a public register, which is intended to provide environmental information on major industrial activities. EPER will be replaced by the European Pollutant Release and Transfer Register (E-PRTR) from 2007 reporting period onwards.
22. www.ippc.ch
23. http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/ 36&format=HTML&aged=0&language=EN&guiLanguage=en
24. Article 23 of the proposed Directive.
25. See the overview of the transposition of IPPC directive in eight EU Member states: Bohne, E., The quest for environmental regulatory integration in the European Union, Integrated Pollution Prevention and Control, Environmental Impact Assessment and Major Accident Prevention, Kluwer Law International, 2006, Alpena an de Rijn (the Netherlands), 101-478.
26. This is not the case if the captured CO is transported by ships.
27. According to Article 2, 9° a "permit" is defined as follows: "that part or the whole of a written decision (or several such decisions) granting authorisation to operate all or part of an installation, subject to certain conditions which guarantee that the installation complies with the requirements of this Directive. A permit may cover one or more installations or parts of installations on the same site operated by the same operator".
28. Impact assessment, COM(2008), X, final, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide, 23 January 2008, 3.
29. See Chapter 4.
30. Bohne, E., The quest for environmental regulatory integration in the European Union, Integrated Pollution Prevention and Control, Environmental Impact Assessment and Major Accident Prevention, Kluwer Law International, 2006, Alpena an de Rijn (the Netherlands), 29-30.
31. See Chapter 4.
32. Article 3, 4° of the proposed Directive.
33. Article 3, 1° of the proposed Directive.
34. E.g. Court of Justice, C-72/95, 24 October 1996, P.K. Kraajjeveld BV.
35. Article 6.1 Directive.
36. 2 from the storage complex" occurs (Article 3(5) Directive).
37. 2". The notion of storage site needs to be distinguished from the broader notion of "storage complex", which refers to "the storage site and surrounding geological domains which can have an effect on overall storage integrity and security (i.e., secondary containment formations)".
38. The Directive does however not spell out that these activities are mutually exclusive within a certain area.
39. 2 captured from this source.
40. E.g. carrying out geological surveys by physical or chemical means, drilling to obtain geological information about strata in the potential storage complex,... (Article 3(7)).
41. Article 5.1.
42. According to Article 22 of the proposed Directive the Member States shall establish or designate the competent authority or authorities responsible for fulfilling the duties established under this Directive. Where more than one competent authority is designated, the work of these authorities undertaken pursuant to this Directive shall be co-ordinated.
43. Articles 5.2 and 3(8).
44. Article 5.2.
45. In practice it will of course be much easier for the holder of the exploration permit to present the information on the site that is required for obtaining the storage permit.
46. An operator is "any natural or legal, private or public person who operates or controls the storage site or to whom decisive economic power over the technical functioning of the storage site has been delegated according to national legislation" (Article 3(9)). This operator can change from the application phase up to the post-closure phase.
47. A CO2 stream is defined as a "flow of substances that results from capture processes" (Article 3(10)).
48. Article 7.
49. Article 6.2.
50. Article 10. The final decision of the competent authority should also be notified to the Commission.
51. Article 9.
52. Articles 11.1. 11.2 and 3(11).
53. Explanatory Memorandum, p. 7.
54. I.e. the "dispersing volume of CO2 in the geological formation".
55. I.e. the "movement of CO2 within the storage complex".
56. Article 13.2 and Annex II, 1.1.
57. Article 13.2 and Annex II 1.2.
58. Article 14.
59. Article 15.
60. Impact assessment, COM(2008), X, final, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide, 23 January 2008, 44-45.
61. Article 20, 3.
62. Article 20, 3.
63. Article 20, 4.
64. Article 16.1 and Article 3(16).
65. Article 3(17).
66. This last option can also be used as in case the operator refuses to take the necessary corrective measures.
67. Article 13(3).
68. Article 17, 1, c) juncto Article 17, 4 of the proposed Directive.
69. Article 13(4).
70. Article 3(18).
71. Article 17.1.(a) and (b)
72. Article 17.2.
73. Article 17.1.(c).
74. Article 17.4. Also in this case the post-closure obligations will need to be based on the (updated) provisional post-closure plan.
75. This also appears from Article 18.7, which provides for the transfer of responsibility for sites closed pursuant to Article 17.1.(c). This provision would be redundant, if not for the fact that from the moment of transfer the former operator will no longer be liable for the costs incurred by the competent authority.
76. According to recital 28, this financial security requirement is also a confidence-raising measure.
77. In this case, monitoring will be reactivated as required to assess the scale of the problem and the effectiveness of corrective measures (Article 18.5).
78. http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/ 36&format=HTML&aged=0&language=EN&guiLanguage=en
79. Article 17.1.
80. The authority is moreover required to inform the Community of its final decision (Article 18.2 and 18.3).
81. For more information on environmental penalties, see e.g. Meijer, R., "Gemeenschapsrecht en (milieu)strafrecht", in Environmental Damage and Liability Law Review, 2008-1, 3-6.
82. Article 3.1.(a) and Annex III Environmental Liability Directive.
83. 2 into the atmosphere.
84. Articles 5 and 6 Environmental Liability Directive.
85. Article 2(11).
86. Impact Assessment, COM(2008) 52, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend EU greenhouse gas emission allowance trading scheme, 181.
87. Impact assessment, COM(2008), X, final, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide, 23 January 2008, 27.
88. Impact Assessment, COM(2008) 52, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend EU greenhouse gas emission allowance trading scheme, 181.
89. Impact Assessment, COM(2008) 52, Commission staff working document accompanying document to the proposal for a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend EU greenhouse gas emission allowance trading scheme, 52-54.
90. COM(2008/0013), 16, final, Proposal for a Directive of the European Parliament and of the European Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community, 23 January 2008.
91. Ibid.
92. According to the Water Framework Directive, such injection may not compromise the achievement of environmental objectives for that body of groundwater.
93. Article 24.
94. Article 36.
95. Article 37.