Safe return to the underground? the role of international law in subsurface storage of carbon dioxide

Review of European Community and International Environmental Law

Volumn 18, Issue 3, 2009, Pages 286-303

  Langlet, David ^a  

^a UNIVERSITY OF GOTHENBURG   (Sweden)

Author keywords

[No Author keywords available]

Indexed keywords

CARBON DIOXIDE; CARBON SEQUESTRATION; CLIMATE CHANGE; ENVIRONMENTAL LEGISLATION; GEOLOGICAL STRUCTURE; INTERNATIONAL AGREEMENT; TECHNOLOGY ADOPTION; WASTE DISPOSAL;

EID: 75649145722     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2009.00650.x     Document Type: Article

References (240)

1. See generally Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Synthesis Report (IPCC, 2007), available at 〈 http://www.ipcc.ch/ipccreports/ar4-syr.htm 〉.
2. 2 have grown between 1970 and 2004 from 21 to 38 gigatonnes and represented 77% of total anthropogenic GHG emissions in 2004. Climate Change 2007: Synthesis Report Ibid., at 36.
3. IPCC, IPCC Special Report on Carbon Dioxide Capture and Storage, prepared by Working Group III of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2005), at 55.
4. Organization for Economic Cooperation and Development (OECD)/International Energy Agency (IEA), World Energy Outlook 2008 (OECD/IEA, 2008), at 45.
5. See, e.g., IPCC, n. 1 above, at 64.
6. See OECD/IEA, n. 4 above, at 38.
7. T.M. Kerr Carbon Dioxide Capture and Storage: Priorities for Development 4 Carbon and Climate Law Review (2008 335
8. See, e.g., IPCC, n. 3 above, at 20; and see Declaration of Leaders Meeting of Major Economies on Energy Security and Climate Change, G8 Hokkaido Tokyo Summit 2008 (July 2008), para. 8, available at 〈 http://www.mofa.go. jp/policy/economy/summit/2008/doc/doc080709-10-en.html 〉.
9. See the following two sections below.
10. 2 for GHG sequestration purposes as 'storage'. See IPCC, n. 3 above, at 3. The third step may, however, be divided into the injection phase and the storage, or post-closure, phase.
11. C. Azar et al. Carbon Capture and Storage From Fossil Fuels and Biomass - Costs and Potential Role in Stabilizing the Atmosphere 74 Climatic Change (2006 47
12. See further IPCC, n. 3 above, at 108 et seq.
13. 2 in their emissions or are located far from suitable storage sites, which are features which make use of CCS more technically and economically challenging. Ibid., at 22 and 60.
14. 2. See Proposal for a Directive of the European Parliament and of the Council on the Geological Storage of Carbon Dioxide (23 January 2008), COM (2008) 18 final, at 2;
15. and The Future of Coal: Options for a Carbon-constrained World, An Interdisciplinary MIT Study (Massachusetts Institute of Technology, 2007), at x.
16. See The Future of Coal, ibid., at 5.
17. Regarding the US situation, see H. Fernando et al., Capturing King Coal: Deploying Carbon Capture and Storage Systems in the US at Scale (World Resources Institute in conjunction with Goldman Sachs, 2008), at 6.
18. McKinsey and Company, Carbon Capture and Storage: Assessing the Economics (2008), at 6, available at 〈 http://www.mckinsey.com/clientservice/ccsi/ pdf/CCS-Assessing-the-Economics.pdf 〉;
19. see also The Future of Coal, n. 14 above, at x.
20. See, e.g., OECD/IEA, n. 4 above, at 41 (oil) and 127 (coal).
21. See M. Jaccard, Sustainable Fossil Fuels: The Unusual Suspect in the Quest for Clean and Enduring Energy (Cambridge University Press, 2005), at 147-152.
22. In the IEA's reference scenario, based on current energy policies, world demand for coal rises by an average of 2% per year until 2030. See OECD/IEA, n. 4 above, at 39.
23. See IPCC, n. 3 above, at 68.
24. 2 - Update and Recommendations (OECD/IEA, 2007), at 21, available at 〈 http://www.iea.org/Textbase/publications/free-new-Desc.asp?PUBS-ID=1928 〉;
25. and see The Future of Coal, n. 14 above, at 95.
26. 2 abated by 2030. See McKinsey and Company, n. 16 above, at 6.
27. See IPCC, n. 3 above, at 215.
28. 2/year for 2001. Ibid., at 55.
29. 2 is injected into an oilfield in order to recover oil additional to that which could otherwise have been produced. For a description of EOR, see ibid., at 215-216.
30. See OECD/IEA, n. 21 above, at 20.
31. See The Future of Coal, n. 14 above, at xii.
32. See IPCC, n. 3 above, at 217-219.
33. 2. Ibid., at 223.
34. UNFCCC, National Inventory Report 2009 Norway (TA-2507/2009, 15 April 2009), at 114 et seq., available at 〈 http://unfccc.int/national-reports/ annex-i-ghg-inventories/national-inventories-submissions/items/4771.php 〉.
35. On these and other projects, see further IPCC, n. 3 above, at 200 et seq.
36. Ibid., at 358.
37. See generally ibid., chapter 6.
38. Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris, 22 September 1992) (OSPAR Convention).
39. OSPAR Decision 2007/1 to Prohibit the Storage of Carbon Dioxide Streams in the Water Column or on the Sea-bed (29 June 2007); Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, [2009] OJ L140/114, Article 2(1) and (4).
40. See The Future of Coal, n. 14 above, at 59.
41. 'The Illusion of Clean Coal', The Economist (7 March 2009), at 17-18;
42. and 'Briefing: Carbon Capture and Storage', The Economist (7 March 2009), at 64-65;
43. E. Rochon et al., 'False Hope: Why Carbon Capture and Storage Won't Save the Climate' (Greenpeace International, May 2008), available at 〈 http://www.greenpeace.org/usa/press-center/reports4/false-hope-why-carbon- capture 〉.
44. See The Future of Coal, n. 14 above, at 101; H. Fernando et al., n. 15 above, at 32.
45. On this issue see, e.g., IPCC, n. 3 above, chapter 4; and UK Health and Safety Executive, General Hazards of Carbon Dioxide, available at 〈 http://www.hse.gov.uk/carboncapture/carbondioxide.htm 〉.
46. See IPCC, n. 3 above, at 210 et seq.
47. 2 Storage - Overview of Mechanisms and Current Knowledge 74 Climatic Change (2006 289
48. On hydrodynamic and geochemical trapping, see IPCC, ibid., at 208.
49. See The Future of Coal, n. 15 above, at 50.
50. See IPCC, n. 3 above, at 246.
51. See The Future of Coal, n. 14 above, at xii; and K. Damen et al., n. 41 above, at 314.
52. See IPCC, n. 3 above, at 247.
53. The risks of such activities are largely related to injection pressure and would likely be low if pressure were duly regulated. Ibid., at 250.
54. The risks of such activities are largely related to injection pressure and would likely be low if pressure were duly regulated Ibid., at 246.
55. See K. Damen et al., n. 41 above, at 298. On the catastrophic event by Lake Nyos, Cameroon, in 1986 see IPCC, n. 3 above, at 308.
56. 2 altering the groundwater chemistry causing a drop in pH level and the mobilization of toxic metals such as lead in high concentrations. See ibid. and K. Damen et al., n. 41 above, at 298.
57. See IPCC, ibid., at 248.
58. Ibid., at 249.
59. 2 Sequestration' (LC/SGCO2 1/7, 3 May 2006)), at 15.
60. The Risk Assessment and Management Framework was endorsed by the parties in 2006. See Report of the Twenty-Eighth Consultative Meeting and the First Meeting of the Contracting Parties (LC 28/15, 6 December 2006), para. 75.
61. 'Local' is used to indicate that the effect is specific to one area or region. The size of such an area may nevertheless be substantial and also hard to delineate with any precision.
62. See, inter alia, Principle 2 of the Rio Declaration on Environment and Development (UN Doc. A/CONF.151/26/Rev.1, 14 June 1992), Vol. I, Annex I;
63. and ICJ 8 July 1996, Advisory Opinion (Legality of the Threat or Use of Nuclear Weapons), [1996] ICJ Rep. 226, para. 29.
64. G. Handl, 'Transboundary Impacts', in D. Bodansky et al. (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 532, at 538;
65. P.S. Rao, Second Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Damage from Hazardous Activities) (UN Doc. A/CN.4/501, 1999), at 5.
66. See, e.g., G. Handl, 'Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context', in R.M. Bratspies and R.A. Miller (eds), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (Cambridge University Press, 2006), 125, at 132.
67. See, e.g., N. de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002), at 62.
68. For extensive references, see D. Langlet, Prior Informed Consent and Hazardous Trade: Regulating Trade in Hazardous Goods at the Intersection of Sovereignty, Free Trade and Environmental Protection (Kluwer Law International, 2009), at 54.
69. The 'climate change regime' is used to refer to the United Nations Framework Convention on Climate Change (New York, 9 May 1992) (UNFCCC), the Kyoto Protocol to the UNFCCC (Kyoto, 11 December 1997), organs established by these agreements and decisions made by such organs or pertaining to these agreements.
70. It is indicative that both the UN Convention on the Law of the Sea (Montego Bay, 10 December 1982) (UNCLOS) and the Convention on Biological Diversity (Rio de Janeiro, 5 June 1992) (CBD) integrate the 'no harm principle' in their operational parts, whereas the UNFCCC only makes a reference in the Preamble and then immediately reaffirms 'the principle of sovereignty of states in international cooperation to address climate change'. See UNCLOS, Article 194(2); CBD, Article 3; and UNFCCC, Preambular paras 8 and 9. On the concept of 'common but differentiated responsibilities', see, e.g., L. Rajamani, Differential Treatment in International Environmental Law (Oxford University Press, 2006).
71. R. Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility (Martinus Nijhoff, 2005), at 191. See, however, the declarations made by Nauru, Tuvalu, Fiji, and Papua New Guinea, ibid., at 188, n. 199.
72. A. Gillespie Environmental Impact Assessment in International Law 17 : 2 RECIEL (2008 221
73. See International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted by the International Law Commission, in Report of the International Law Commission, 53rd Session (23 April-1 June and 2 July-10 August 2001) (UN Doc A/56/10(SUPP), 2001), at 366.
74. See further A. Gillespie, n. 63 above, at 222 et seq.
75. Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991).
76. Convention on Environmental Impact Assessment in a Transboundary Context Ibid., Article 2(3).
77. Convention on Environmental Impact Assessment in a Transboundary Context Ibid., Annex 1, points 8 and 16.
78. R. Purdy, 'Geological Carbon Dioxide Storage and the Law', in S. Shackley and C. Gough (eds), Carbon Capture and its Storage: An Integrated Assessment (Ashgate, 2006), 87, at 125.
79. 2 Sequestration Issues (LP/CO2 1/8, 3 March 2008), at 2. On the London Protocol and the working group, see further the section entitled 'Transboundary Movements' below.
80. See Espoo Convention, n. 66 above, Article 2(5). Appendix III contains criteria which are 'to assist in the determination of the environmental significance of activities not listed in Appendix I'.
81. Espoo Convention Ibid., Article 2(1).
82. 2 storage. CCS has not been addressed by the Meeting of the Parties. See, e.g., Report of the Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context on Its Fourth Meeting (ECE/MP.EIA/10, 28 July 2008).
83. See Directive 2009/31/EC, n. 35 above, Article 31 amending Annexes I and II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40.
84. See Council Directive 85/337/EEC, ibid., Article 7.
85. See generally OECD/IEA, n. 21 above, chapter 3; and R. Purdy, n. 69 above, at 97 et seq.
86. See UNCLOS, n. 61 above.
87. G. Haver H.C. Bugge Transboundary Chains for CCS: Allocation of Rights and Obligations between the State Parties within the Climate Regime 4 : 5 Journal for European Environmental and Planning Law (2007 367
88. 2 within the EEZ. Journal for European Environmental and Planning Law Ibid., Article 56(b). On the 'baseline', see ibid., Articles 5-7.
89. According to UNCLOS, Journal for European Environmental and Planning Law ibid., Article 77, the coastal State exercises sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources.
90. See G. Haver and H.C. Bugge, n. 78 above, at 371.
91. The 'Area' is 'the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction'. See UNCLOS, n. 61 above, Article 1(1).
92. 2. See UNCLOS, ibid., Articles 134(2), 1(3) and 133(a).
93. 2 Streams in Geological Formations, Annex 1 in Meeting of the OSPAR Commission, Ostend, 25-29 June 2007, Summary Record (OSPAR 07/24/1-E, 29 June 2007), Annex 7. The EU even proscribes the use of storage sites extending beyond the Member States' continental shelves. See Directive 2009/31/EC, n. 35 above, Article 2(3).
94. Regarding the inclusion of CCS in the climate change regime, see the section entitled 'Regulating Climate Risks' below.
95. See UNCLOS, n. 61 above, Articles 192 and 194(2).
96. R. Purdy I. Havercroft Carbon Capture and Storage: Developments under European Union and International Law 4 : 5 Journal for European Environmental and Planning Law (2007 353
97. UNCLOS, Journal for European Environmental and Planning Law ibid., Articles 210(6) and 216.
98. Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (London, 13 November 1972) (London Convention).
99. On the status of the London Convention as an international standard, see P. Birnie et al., International Law and the Environment, 3rd edn (Oxford University Press, 2009), at 389.
100. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 7 November 1996) (London Protocol).
101. See, e.g., R. Purdy, n. 69 above, at 102-110.
102. See London Convention, n. 89 above, Article III(1). See also OECD/IEA, n. 21 above, at 62.
103. See London Protocol, n. 90 above, Article 1(4.1.1) and (4.1.3).
104. 2 Sequestration in Sub-Seabed Geological Formations in Annex 1 to the London Protocol (2 November 2006).
105. The amendment entered into force in early 2007. See Report of the Twenty-Ninth Consultative Meeting and the Second Meeting of the Contracting Parties (LC29/17, 14 December 2007), para. 4.1. Also under UNCLOS dumping may not be allowed without permission from a competent authority. See UNCLOS, n. 61 above, Article 210(3). See further R. Purdy and I. Havercroft, n. 87 above, at 355.
106. Risk Assessment and Management Framework, n. 53 above, Annex 3.
107. The Framework was endorsed by the parties in 2006. See Report of the Twenty-Eighth Consultative Meeting, n. 53 above, para. 75.
108. See Report of the Twenty-Ninth Consultative Meeting, n. 94 above, para. 4.13. The 'Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-Seabed Geological Formations' are set out in Annex 4 to the report.
109. See London Protocol, n. 90 above, Article 4 and Annex 2, para. 3.
110. See 'Specific Guidelines', n. 96 above, paras 2.2 and 7.10.
111. See UNCLOS, n. 61 above, Articles 210(6) and 216 (1). The notion of 'international rules and standards' has not been clearly defined. See R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), at 347.
112. The total number of parties is 37, including, inter alia, Canada, China, Germany, France, Japan, Norway and the UK. Noticeably, India, Russia and the USA are not parties. See International Maritime Organization, Overview of the Contracting Parties, Status: 22 January 2009 (IMO, undated), available at 〈 http://www.imo.org/home.asp?topic-id=1488 〉.
113. However, the London Protocol is among the treaties on which the US Administration 'supports Senate action'. See US Department of State, Treaty Priority List (11 May 2009), available at 〈 http://www.globalsolutions.org/ files/general/White-House-Priorities-List.pdf 〉. This raises the prospect of US accession to the Protocol.
114. See Report of the Twenty-Eighth Consultative Meeting, n. 53 above, para. 75.
115. The London Convention has, as of May 2009, 85 parties, including, e.g., Russia and the USA. See International Maritime Organization, Status of the London Convention and Protocol (LC30/2, 2 October 2008), available at 〈 http://www.imo.org/includes/blastDataOnly.asp/data-id%3D23854/2.pdf 〉.
116. Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris, 22 September 1992) (OSPAR Convention).
117. OSPAR Decision 2007/2 on the Storage of Carbon Dioxide Streams in Geological Formations (29 June 2007).
118. See FRAM, n. 84 above.
119. See, e.g., Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki, 9 April 1992);
120. Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea, 24 November 1986) and OECD/IEA, n. 21 above, Annex V.
121. Rehbinder refers to the CBD's 'extreme vagueness and discretionary character': E. Rehbinder, 'Obstacles to National Implementation of the Convention on Biological Diversity', in E.M. Basse et al. (eds), Fågelperspektiv på rätten. Vänbok till Staffan Westerlund (Iustus Förlag, 2001), 375, at 381.
122. See the section entitled 'Biodiversity' below.
123. See CBD, n. 61 above, Article 5.
124. Ibid., Article 4(b).
125. See, e.g., UNCLOS, n. 61 above, Part XII, Section 1 and OSPAR Convention, n. 34 above, Annex V on ecosystems and biodiversity. On the relationship between UNCLOS and the CBD, see A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press, 2007), at 256; and see P. Birnie et al., n. 89 above, at 704.
126. See P. Birnie et al., The Making of International Law ibid., at 704.
127. 2 Associated with Carbon Capture and Storage Projects: An Analysis of Issues under International Law 4 Carbon and Climate Law Review (2008 353.
128. See Report of the First Meeting of the Legal and Technical Working Group, ibid., para. 3.9. This also appears to have been the intention of those negotiating the Protocol. See ibid., para. 3.7.
129. 2 streams is in compliance with the requirements set out in Annex 2 to the London Protocol, n. 90 above, concerning 'Assessment of Wastes and Other Matter that May Be Considered for Dumping'. The Meeting of Contracting Parties in October 2008 endorsed the working group's recommendations and recommended the setting up of an 'intersessional correspondence group' to consider, inter alia, the option of an amendment of Article 6. See Report of the Thirtieth Consultative Meeting and the Third Meeting of the Contracting Parties (LC30/16, 9 December 2008), paras 5.22-5.25. On the notion of 'prior informed consent', see D. Langlet, n. 59 above.
130. See OECD/IEA, n. 21 above, at 99; and IPCC, n. 3 above, at 189. For a partly different view, see A. Raine, n.123 above, at 358.
131. See OECD/IEA, ibid., at 99; and IPCC, ibid., at 189.
132. Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal (Basel, 22 March 1989), Article 1(b).
133. See OECD/IEA, n. 21 above, at 99.
134. Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, [2006] OJ L114/9, Article 2(1)(a) as amended by Directive 2009/31/EC, n. 35 above, Article 35.
135. See n. 126 below.
136. See, e.g., L. Bergkamp, Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (Kluwer Law International, 2001), at 155;
137. P. Sands, Principles of International Environmental Law, 2nd edn (Cambridge University Press, 2003), at 869.
138. On mixed forms of liability see M.-L. Larsson, The Law of Environmental Damage: Liability and Reparation (Kluwer Law International, 1999), at 169-170.
139. On the attribution of conduct to States, see International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (UN Doc. A/56/10, 2001), Chapter II.
140. R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability (Kluwer Law International, 1996), at 56.
141. See L. Bergkamp, n. 121 above, at 159; M.-L. Larsson, n. 121 above, at 168; and P. Sands, n. 121 above, at 874.
142. See L. Bergkamp, ibid., at 6; and P. Sands, ibid., at 938.
143. 'Private actors' may include State organs, if involved in commercial activities. Otherwise States are generally protected by immunity from the jurisdiction of other States' courts and authorities.
144. Sands finds 'an inverse relationship between the scope of application of the rules [of a civil liability agreement] - in terms of the activity targeted and the potential financial consequences proposed - and the prospects that they will enter into force'. See P. Sands, n. 121 above, at 904.
145. See M.-L. Larsson, n. 121 above, at 171; and P. Sands, ibid., at 904.
146. See UNCLOS, n. 61 above, Article 235(2) and CBD, n. 61 above, Article 14(2). The latter merely requires the Conference of the Parties to examine the issues of liability and redress. See also UNCLOS, ibid., Article 139 on the particular liability regime for 'the Area'.
147. Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, [2004] OJ L143/56.
148. 2 storage sites pursuant to the 2009 directive.
149. Environmental damage does not include all damage to the natural environment. It covers, inter alia, damage to protected species and natural habitats and land contamination. Damage to the quality of certain waters is also covered. See Directive 2004/35/EC, n. 130 above, Article 2(1). However, with respect to the sea, the Directive is only concerned with 'coastal waters' defined as 'surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured'. See Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, [2000] OJ L327/1, Article 2(7).
150. See Directive 2004/35/EC, n. 130 above, Articles 5 and 6.
151. See Directive 2009/31/EC, n. 35 above, Preambular para. 34.
152. This follows from the Directive being based on Article 175 of the EC treaty. National legislation must, however, be compatible with the general rules on free movement of the EC Treaty.
153. Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950).
154. ECHR 19 February 1998, Application No 14967/89, Guerra and Others v. Italy, Reports of Judgments and Decisions 1998-I.
155. ECHR 9 December 1994, Application No 16798/90, López Ostra v. Spain, (1995), 20 EHRR 277; ECHR 9 June 2005, Application No 55723/00, Fadeyeva v. Russia, Reports of Judgments and Decisions 2005-IV.
156. International Covenant on Civil and Political Rights (New York, 19 December 1966).
157. Conservation of biological diversity has been recognized as a 'common concern of humankind'. See CBD, n. 61 above, Preambular para. 3.
158. On EIA requirements in biodiversity law, see A. Gillespie, n. 63 above, at 222 et seq.
159. By way of example, many measures required by the CBD are to be taken 'as far as possible and as appropriate'. See, e.g., CBD, n. 61 above, Articles 8 and 9 on conservation measures.
160. It has been held that 'only the treaties that target particular endangered species and particular ecosystems have any real effects'. See A. Jóhannsdóttir, The Significance of the Default: A Study in Environmental Law Methodology with Emphasis on Ecological Sustainability and International Biodiversity Law (Uppsala Universitet, 2009), at 297.
161. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, [1992] OJ L206/7. See also R. Purdy, n. 69 above, at 132 et seq.
162. See Directive 2000/60/EC, n. 132 above.
163. Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, [2008] OJ L24/8.
164. See Directive 85/337/EEC, n. 74 above. On this directive, see further the section entitled 'Environmental Impact Assessment' above.
165. See Directive 2009/31/EC, n. 35 above. On this see further the section entitled 'The EU Example' below.
166. J. Fahey R. Lyster Geosequestration in Australia: Existing and Proposed Regulatory Mechanisms 4 : 5 Journal for European Environmental and Planning Law (2007 378
167. E.J. Wilson A.J. Gibbons Deploying Carbon Capture and Storage in Europe and the United States: A Comparative Analysis 4 : 5 Journal for European Environmental and Planning Law (2007 343.
168. See L. Bergkamp, n. 121 above, at 162.
169. See further the section entitled 'Liability' above.
170. See, e.g., G. Haver and H.C. Bugge, n. 78 above, at 368 et seq.; IPPC, n. 3 above, chapter 9.
171. The CDM is one of the flexible mechanisms of the Kyoto Protocol established by its Article 12. It allows emission-reduction or -removal projects in developing countries to earn certified emission-reduction credits, which can be used by industrialized countries to meet a part of their emission reduction targets. See Kyoto Protocol, n. 60 above, Article 12.
172. A. Appleton et al. AWG-LCA and AWG-KP Highlights: Monday, 10 August 2009 12 : 423 Earth Negotiations Bulletin (2009)
173. Kyoto Protocol, n. 60 above, Article 7.
174. H.S. Eggleston et al., 2006 IPCC Guidelines for National Greenhouse Gas Inventories, prepared by the National Greenhouse Gas Inventories Programme (Institute for Global Environmental Strategies, 2006), Vol. 2, chapter 5.
175. Instead the Revised 1996 Intergovernmental Panel on Climate Change Guidelines for National Greenhouse Gas Inventories is still directing the parties. See Updated UNFCCC Reporting Guidelines on Annual Inventories following Incorporation of the Provisions of Decision 14/CP (FCCC/SBSTA/2006/9, 18 August 2006), at 4. It may be noted, for example, that Norway, which reports on the GHG effects of its Sleipner CCS project, uses the 1996 Guidelines lacking any specific provisions on CCS. See UNFCCC, n. 30 above, at 8 and 114 et seq.
176. See IPCC, n. 3 above, at 365 et seq. See also UNFCCC, Updated UNFCCC Reporting Guidelines on Annual Inventories following Incorporation of the Provisions of Decision 14/CP ibid., at 116.
177. See IPCC, Updated UNFCCC Reporting Guidelines on Annual Inventories following Incorporation of the Provisions of Decision 14/CP ibid., at 367.
178. Updated UNFCCC Reporting Guidelines on Annual Inventories following Incorporation of the Provisions of Decision 14/CP Ibid., at 372.
179. 2 capture and storage in geological formations as CDM project activities. See Decision 1/CMP.2, Further Guidance Relating to the Clean Development Mechanism (FCCC/KP/CMP/2006/10/Add.1, 2 March 2007), paras 21-22.
180. The parties to the Kyoto Protocol (formally the 'Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol or CMP) have subsequently requested the Executive Board to assess the implications of the possible inclusion of such projects in the CDM. See Decision 2 CMP.4, Further Guidance Relating to the Clean Development Mechanism (FCCC/KP/CMP/2008/11/Add.1, 19 March 2009), para. 41.
181. Synthesis of Views on Technological, Methodological, Legal, Policy and Financial Issues Relevant to the Consideration of Carbon Dioxide Capture and Storage in Geological Formations as Project Activities under the Clean Development Mechanism, Note by the Secretariat (FCCC/SBSTA/2008/INF.3, 25 September 2008), para. 92 et seq.
182. H. de Conincka Trojan Horse or Horn of Plenty? Reflections on Allowing CCS in the CDM 36 Energy Policy (2008 929
183. 'Win to Reducing Emissions and Win for Reducing Impacts on Developing Countries', Submission by Saudi Arabia in Consideration of Carbon Dioxide Capture and Storage as Clean Development Mechanism Project Activities, Submissions from Parties (FCCC/SBSTA/2007/MISC.18, 28 October 2007), at 4.
184. Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on its Thirteenth Session, held in Bali from 3 to 15 December 2007 (FCCC/CP/2007/6/Add.1*, 14 March 2008), para. 1(d)(iii).
185. For such proposals see Synthesis of Views, n. 162 above, paras 24-26.
186. See Kyoto Protocol, n. 60 above, Article 6.
187. M. Gutiérrez et al. Summary of the Fifth Session of the Ad Hoc Working Group on Long-Term Cooperative Action under the United Nations Framework Convention on Climate Change and the Seventh Session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, 29 March to 8 April 2009 12 : 407 Earth Negotiations Bulletin (11 April 2009)
188. See, e.g., Kyoto Protocol, n. 60 above, Article 2, which merely gives examples of areas in which measures may be taken by the parties, in accordance with their 'national circumstances', in order to meet their reduction commitments.
189. See Synthesis of Views, n. 162 above, paras 24-26.
190. See, e.g., on Australia, J. Fahey and R. Lyster, n. 149 above, at 378-392; on Norway, see N. K. Hallenstvedt, Current CCS Regulation in Norway, available at 〈 http://www.ucl.ac.uk/cclp/pdf/CCS-in-Norway-April2008.pdf 〉.
191. See OECD/IEA, n. 21 above, at 29.
192. See Directive 2009/31/EC, n. 35 above, Articles 31-37 on amendments of existing legal acts.
193. See ibid.
194. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading
195. See, e.g., the parties to the London Protocol 'desiring to regulate the sequestration of captured carbon dioxide streams into sub-seabed geological formations to seek to ensure protection of the marine environment'. See Resolution LP.1(1), n. 94 above, Preambular para. 13.
196. See UNCLOS, n. 61 above, Articles 87(1) and 136. On the notion of common heritage of mankind, see further S. Mahmoudi, The Law of Deep Sea-Bed Mining (Almqvist and Wiksell International, 1988), chapter 4.
197. See UNCLOS, The Law of Deep Sea-bed Mining ibid., Article 58(1).
198. See IPCC, n. 3 above, at 246; Risk Assessment and Management Framework, n. 53 above, at 7; and FRAM, n. 84 above, at 15.
199. See Directive 2009/31/EC, n. 35 above, Article 1; and OSPAR Guidelines for Risk Assessment, n. 84 above, at 1;
200. and Risk Assessment and Management Framework, ibid., at 3.
201. See FRAM, n. 84 above, at 10; and Risk Assessment and Management Framework, ibid., at 7.
202. On planned onshore sites, see, e.g., European Commission, Expected CCS Demonstration Projects in Europe' (undated), available at 〈 http://ec.europa.eu/environment/climat/ccs/docs-en.htm 〉.
203. 2 loses its harmful non-climate effects when it mixes with large volumes of air.
204. See IPCC, n. 3 above, at 376.
205. See the section entitled 'Storage' below.
206. See OECD/IEA, n. 21 above, at 55.
207. See IPCC, n. 3 above, at 375.
208. See ibid., at 373 et seq.; and OECD/IEA, n. 21 above, at 57 et seq. See also Synthesis of Views, n. 162 above, paras 57-60.
209. See IPCC, n. 3 above, at 375.
210. In relation to the accounting system, the IPCC's report on CCS defines leakage as 'displacement of greenhouse gas emissions beyond the boundaries of the [accounting] system under discussion'. See ibid., at 372.
211. See Directive 2009/31/EC, n. 35 above, Article 4(4).
212. 2 in such a way as to prevent and, where this is not possible, eliminate as far as possible negative effects and any risk to the environment and human health'. See Article 1(2). The OSPAR Convention's framework for risk assessment and management sets a similar standard. See FRAM, n. 84 above, para. 6.4.
213. See Directive 2009/31/EC, ibid., Article 4(3) and Annex I.
214. Ibid., Article 13(2) and Annex II.
215. Ibid., Article 12(2).
216. Ibid., Article 10. The Commission may also give an opinion on draft decisions of approval of the transfer of responsibility from the operator to the Member State. See ibid., Article 18(4).
217. This follows from the inclusion of storage sites (as well as capture installations) in Directive 2008/1/EC, n. 146 above, Article 3(1)(a).
218. 2 is in conformity with its modelled behaviour, and that the site is evolving towards a situation of long-term stability. See Directive 2009/31/EC, n. 35 above, Article 18(1) and (2).
219. 2 will be completely and permanently contained. See ibid., Article 18(1).
220. See The Future of Coal, n. 14 above, at 58.
221. See Directive 2009/31/EC, n. 35 above, Article 20.
222. Extending the rules being elaborated within the London framework to onshore storage is not a feasible option. Both the Convention and the Protocol deal with activities at sea. There is also partly a different rationale for regulating onshore and offshore activities.
223. P.M. Kohler Science, PIC and POPs: Negotiating the Membership of Chemical Review Committees under the Stockholm and Rotterdam Conventions 15 : 3 RECIEL (2006 293.
224. On the need for third party verifiers, see OECD/IEA, n. 21 above, at 39.
225. Such disproportionate regulation of similar risks has, e.g., been reported from the nuclear sector. See P. Riley, Nuclear Waste: Law, Policy and Pragmatism (Ashgate, 2004), at 13.
226. As noted above an amendment has been proposed by a working group on transboundary issues. See the section entitled 'Transboundary Movements' above. An amendment requires the support of two-thirds of the parties present and voting and the subsequent acceptance by two-thirds of the total number of parties. See London Protocol, n. 90 above, Article 21.
227. On guidelines for environmentally safe management see D. Langlet, n. 59 above, at 80.
228. 2 for the purpose of geological storage has been excluded from the rules on shipments of waste but only to the extent that storage takes place in the EU. See Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, [2006] OJ L190/1, Article 1(3), as amended by Directive 2009/31/EC, n. 35 above, Article 36.
229. Bonds and bank guarantees have also been proposed for covering post-closure liability. See OECD/IEA, n. 21 above, at 42.
230. For a US perspective, see The Future of Coal, n. 14 above, at 58.
231. Organization for Economic Cooperation and Development, Sustainable Development: Critical Issues (OECD, 2001), at 45.
232. According to Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, [1999] OJ L182/1, Article 13(c), the operator of a landfill shall be responsible for its maintenance, monitoring and control for as long as may be required by the competent authority, taking into account the time during which the landfill could present hazards.
233. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Vienna, 5 September 1997).
234. Ibid., Article 11(vi) and (vii).
235. The Principles of Radioactive Waste Management', Safety Series No 111-F (International Atomic Energy Agency, 1995), at 7.
236. The Principles of Radioactive Waste Management', Safety Series No 111-F, Ibid.
237. 2 storage in EC law, see the section entitled 'The EU Example' above.
238. For nuclear waste, see The Principles of Radioactive Waste Management, n. 215 above, at 5 et seq.
239. See C. Azar et al., n. 11 above, at 66 and 74.
240. Inclusion of standards for CCS in the climate regime would, obviously, also be subject to acceptance by the parties to the pertinent agreement.