Aspectos Legales Almacenaje CO2

7/28/2019 Aspectos Legales Almacenaje CO2

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LEGAL

ASPECTS OF

STORING CO2

INTERNATIONAL ENERGY AGENCY


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LEGAL

ASPECTS OF

STORING CO2



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The International Energy Agency (IEA) is an autonomous body which was established inNovember 1974 within the framework of the Organisation for Economic Co-operation andDevelopment (OECD) to implement an international energy programme.

It carries out a comprehensive programme of energy co-operation among twenty-six of theOECDs thirty member countries. The basic aims of the IEA are:

to maintain and improve systems for coping with oil supply disruptions; to promote rational energy policies in a global context through co-operative relations with

non-member countries, industry and international organisations; to operate a permanent information system on the international oil market; to improve the worlds energy supply and demand structure by developing alternative

energy sources and increasing the efficiency of energy use; to assist in the integration of environmental and energy policies.

The IEA member countries are: Australia, Austria, Belgium, Canada, the Czech Republic,Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, the Republic ofKorea, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden,Switzerland, Turkey, the United Kingdom, the United States. The European Commission takespart in the work of the IEA.

ORGANISATION FOR ECONOMIC CO- OPERATION AND DEVELOPMENT

The OECD is a unique forum where the governments of thirty democracies work together toaddress the economic, social and environmental challenges of globalisation. The OECD is alsoat the forefront of efforts to understand and to help governments respond to new developmentsand concerns, such as corporate governance, the information economy and the challenges ofan ageing population. The Organisation provides a setting where governments can comparepolicy experiences, seek answers to common problems, identify good practice and work to co-ordinate domestic and international policies.

The OECD member countries are: Australia, Austria, Belgium, Canada, the Czech Republic,Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea,Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the SlovakRepublic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States.The European Commission takes part in the work of the OECD.

OECD/IEA, 2005

No reproduction, copy, transmission or translation of this publication may be madewithout written permission. Applications should be sent to:

International Energy Agency (IEA), Head of Publications Service,

9 rue de la Fdration, 75739 Paris Cedex 15, France.


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FOREWORD

The International Energy Agency has a very keen interest in carbon dioxide capture and storage.This technology could help us to avoid increasing greenhouse gas concentrations in the atmosphere

while meeting our future energy needs, ensuring better security of supply and maintaining strongeconomic growth.

The most important approaches to reduce CO2 emissions include energy efficiency, renewabletechnologies and nuclear energy. They face limitations, though, and none can solve the problems

alone. So challenging is the task and so great the economic imperatives to continue fossil fuel usethat we need to consider technologies that will allow us to use fossil fuels without CO2 emissions.

Much of the work to date on carbon dioxide capture and storage focussed on technical aspects.

This publication, in contrast, concentrates on legal issues surrounding CO2 storage, in both domesticand international law. It follows the Workshop on Legal Aspects of Storing CO2 in Paris in July

2004. The event was jointly organised by the IEA's Working Party on Fossil Fuels and the Carbon

Sequestration Leadership Forum. I am delighted that the IEA could effectively contribute to activitiesof the Forum. The main conclusion is clear: existing national and international regulations are not

fitted to large-scale experiments in CO2, and urgent legislative work is needed to keep pace withtechnical progress.

The publication can be regarded as a supplement to last year's IEA book Prospects for CO2 Capture

and Storage, an extensive study on the technology's potential. Legal Aspects of Storing CO 2paves the way for future work on creating and improving investment security in this key technology.

Claude MandilExecutive Director

FOREWORD 3


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ACKNOWLEDGEMENTS

This publication was researched and written by Augustin Flory. Substantial input and guidancewas provided by Marianne Haug, Director of the Office of Energy Technology and R&D, IEA. Jacek

Podkanski, Secretary to the Working Party on Fossil Fuels, IEA, and the main organizer of the ParisWorkshop on Legal Aspects of Storing CO2, was also a significant contributor. Antonio Pflger, Headof the Division of Energy Technology Collaboration, IEA, reviewed the paper.

The IEA thanks the Carbon Sequestration Leadership Forum's Secretariat for its work in the

organization of the Paris Workshop. The IEA also thanks all the speakers and panelists at the ParisWorkshop for their contributions, without which this paper could not have been written: Mondher

BenHassine, Kamel Bennaceur, J. Michael Bewers, Richard Bradley, Frede Cappelen, Ren Coenen,Tania Constable, Peter Cook, Charles E. Di Leva, Tony Espie, Mark de Figueiredo, Paul Freund,

Sergio Garribba, David Hawkins, David Hill, Barry Jones, Arthur Lee, Barbara McKee, Mark Maddox,George Marsh, Jeremy Richardson, John Roberts, Alan Simcock, Stuart Smith, Jolyon Thomson, Nancy

Turck, Geir Vollster, Malcolm Wilson, Ibibia Lucky Worika, Hiroshi Yamagata. Special thanks toGuyon Knight for his contribution to the organization of the Paris Workshop and his preliminaryresearch in the field.

The following experts reviewed early draft of the publication and provided valuable comments:

Mondher BenHassine, Kamel Bennaceur, J. Michael Bewers, Sverre Bjelland, Ren Coenen, Markde Figueiredo, David Irving, Barry Jones, Anhar Karimjee, Jostein Dahl-Karlsen, David Keith, Arthur

Lee, Cdric Philibert, Ray Purdy, Stuart Smith, Jolyon Thomson, Geir Vollster, Malcolm Wilson,Hiroshi Yamagata.

Finally, the IEA would like to address thanks to the IEA Greenhouse Gas R&D Programme forbackground papers and information, and the authorization to reproduce some of their material.

ACKNOWLEDGEMENTS 5


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TABLE OF CONTENTS

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Highlights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Background information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. The international legal framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

The London Convention Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The OSPAR Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Interpreting and amending international treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3. National frameworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

The United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

The United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Other countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

4. Building a legal and regulatory framework for CO2 storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Definitional and policy issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Process issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5. Priority issues for future work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Annex I - Selection of relevant provisions under UNCLOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Annex II - Selection of relevant provisions under the UNFCCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Annex III - Selection of relevant provisions under the Kyoto Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Annex IV - Selection of relevant provisions under the London Convention . . . . . . . . . . . . . . . . . . . . . 53

Annex V - Selection of relevant provisions under the London Protocol . . . . . . . . . . . . . . . . . . . . . . . . . 55

Annex VI - Selection of relevant provisions under OSPAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Abbreviations and acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

TABLE OF CONTENTS 7


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HIGHLIGHTS

Modernising existing legal frameworks

I National and international legal frameworks need to reflect scientific and technologicalprogress as well as the various objectives of the international community. The legalframeworks applicable to Carbon Dioxide Capture and Storage (CCS) were establishedbefore CCS became an environmental policy option and before climate change mitigationbecame a priority environmental objective of the international community. These frameworkswill need to be updated to take into consideration the scientific progress that has beenachieved in the field of CCS and the new greenhouse gas reduction objectives of theinternational community. The frameworks will also likely need to be updated to take intoconsideration evolving policy developments and could be influenced by public perception.

Onshore/offshore legal and regulatory frameworks

I Offshore storage is primarily framed by the international legal framework governing themarine environment; under this framework, large scale offshore projects will confront thelegal uncertainties existing under the London Protocol and the OSPAR Convention. TheContracting Parties to these agreements need to interpret, clarify or, as the case may be,amend these treaties with a view to account for some form of controlled carbon storage.There is significant room for such interpretation and clarification under these treaties.

I Onshore storage primarily falls within the scope of national, state or provincial legalframeworks. CO2 storage demonstration projects, including Enhanced Oil Recovery (EOR)with CO2 storage, are being carried out in several countries under a myriad of non CCS-specific regulations, such as those governing oil and gas activities, mining, pipelines,transport, environmental impact assessment, property or liability. The main legal andregulatory gaps identified lie in long-term storage and monitoring issues. Countries muststreamline their legal frameworks, fill in legal and regulatory gaps and reduce transactioncosts if they want to encourage CCS development; appropriate monitoring and liabilityframeworks will be essential elements for the success and acceptability of any framework.

Need for more empirical data

I Additional storage and monitoring projects need to be carried out to fully assess long-term storage risks and establish purposeful and consistent siting and monitoringrequirements. On-going EOR projects do not focus on long-term storage aspects and

there are too few storage projects with detailed monitoring components. Empirical dataand close cooperation between the scientific community, industry and regulators will beessential to establish standards for regulatory and legal frameworks and gain publicacceptance for CCS.

Priority areas for future work

I Increase the number of CO2 storage demonstration projects (including EOR with CO2storage) focusing on long-term storage and monitoring aspects; increase public-private partnerships to achieve this goal; develop knowledge repositories related tounderground storage.

HIGHLIGHTS 9


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10 LEGAL ASPECTS OF STORING CO2

I In the short-term, governments should ensure that there is an appropriate national legalenvironment for more storage demonstration projects; longer term national frameworksshould be formulated on the basis of adequate empirical knowledge of the conditions andrisks of long-term storage.

I

Contracting parties to international instruments (governments) should take a proactivestance to clarify the legal status of carbon storage in the marine environment protectioninstruments, taking into consideration not only their marine environment protectionobjectives, but also their objectives regarding climate change mitigation.

I Governments should create a level-playing field for CCS with other climate changemitigation technologies.

I Both the public and private sectors need to increase public awareness and work on gainingpublic acceptance of CCS as important carbon dioxide reducing option.

This paper is for information purposes only. It is not the result of a comprehensive, in depth analysisof the applicable legal frameworks and does not purport to be conclusive on any of the issuesraised herein. It is not intended to be relied upon as legal advice. Readers should seek specific legaladvice under the relevant jurisdiction for any specific situation or project.


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INTRODUCTION

Stabilizing CO2 concentrations in the atmosphere by reducing CO2 emissions is one of theenvironmental challenges of the first decades of the 21st century. Carbon dioxide capture and

storage (CCS) represents a potential way for achieving such stabilization without jeopardizing energysecurity and the global economy. CO2 capture and storage can enable a pathway towards a lowcarbon future and the emergence of a hydrogen economy.

The successful development of CCS remains conditional on progress in four main areas:

G Developing CCS technology at competitive costs and acceptable environmental standards; costissues are mainly associated with capture, environmental concerns are focused on storagepermanence that needs to be proven under various conditions;

G Adopting an enabling legal and regulatory framework;

G Gaining public acceptance;

G

Creating financial incentives through greenhouse gas (GHG) mitigation policies and mechanisms.This publication is concerned with the legal and regulatory framework only. Significant work hasalready been done on technological issues, and as they begin to be solved, it is necessary tomake progress on legal and regulatory issues, not only to create an enabling framework foradditional demonstration projects but also to allow the wider deployment of commercial projectsthat can achieve deep reductions.

In order to support thinking and international cooperation on the legal and regulatory aspectsof carbon storage, the International Energy Agency (IEA) and its Working Party on Fossil Fuelsorganized jointly with the Carbon Sequestration Leadership Forum (CSLF) a workshop in Paris onJuly 12-13, 2004 on the legal aspects of storing carbon dioxide (the Paris Workshop). The Paris

Workshop brought together more than 80 participants from national governments, internationalorganizations and conventions, the private sector, academia and non-governmental organizations.More than twenty presentations were given on the national and international legal frameworksapplicable to CCS, specific legal issues as well as the private sector perspective.

This publication provides a synthetic overview of the main legal and regulatory issues raisedduring the Paris Workshop. The agenda, the list of participants and the detailed proceedings ofthe workshop are available on the IEA website.1

This publication contains:

G general background information relevant to the legal debate (Part 1);

G a discussion on the international framework applicable to CCS (Part 2);G a description of some national legal frameworks (Part 3);

G a brief analytical overview of some of the main definitional, policy and process issues relevantfor regulating CCS (Part 4); and

G some recommendations for moving forward (conclusion, Part 5).

INTRODUCTION 11

1. http://www.iea.org/Textbase/work/2004/storing_carbon/agenda.htm


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1. BACKGROUND INFORMATION

CCS and climate change

Fossil fuel combustion produces CO2, the main anthropogenic greenhouse gas which, if released

into the atmosphere, is responsible for enhancing the greenhouse effect, leading to global warming,

a rise in sea level and changes in rainfall. This may have a substantial detrimental impact on many

ecosystems, people and economies, especially in the more vulnerable parts of the world.

It is now generally accepted that limits will have to be placed on the atmospheric concentration

of CO2 and other greenhouse gases in the atmosphere and that emissions of CO2 will need to be

reduced significantly below their current levels in order to stabilize the atmospheric concentration

of CO2 at a reasonable level.2

However, rapid change to non-fossil energy sources is unlikely given their cost, the disruption it

would cause to the energy supply infrastructure and the consequences it would have on the

global economy.3

Fossil fuels will thus continue to provide a large proportion of the world's commercial energy for

the foreseeable future and the world needs a CO2 emissions reduction technology during its transition

to a fully non-fossil economy, which may take at least fifty years. CCS represents one of the best

options to continue using fossil fuels during that period with much reduced emissions of CO2.

Besides, in the early stages of a future hydrogen economy, control of CO2 emissions will still be

needed because hydrogen will be produced mainly from fossil fuels.

The figure below presents an assessment of possible impact of carbon dioxide capture and storage

technologies on CO2 emissions under the following scenarios:

G business-as-usual (no new CO2 abatement policies);

G CO2 capture and storage technologies are available and could be deployed due to worldwide

introduction of relatively strong CO2 abatement policies (represented by a penalty US$50 per

ton of emitted CO2);

G the same CO2 abatement policies are introduced but CCS technologies are not available.

The CO2 abatement policies, if based only on fuel switching, nuclear energy, renewables and

energy efficiency measures, and without CCS in the technology portfolio, may not be enough toachieve sufficient reductions in CO2 emissions. Data in the figure below indicate that CCS

technologies significantly increase the impact of CO2 incentives. The analysis reveals that for

the same CO2 abatement policies, annual emissions of CO2 in 2050 are 25% lower when CCS

technologies are available.

1. BACKGROUND INFORMATION 13

2. For instance, under IPCC scenario B1 in its Climate Change 2001 report, emissions of CO2 will have to be reduced by approximately

40% by 2100 in order to stabilize the atmospheric concentration of CO2 at no more than 50% above its current level (http://www.ipcc.ch).

3. See IEA, World Energy Investment Outlook 2003


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The CCS technologies

The CCS process involves capture, transportation, injection and storage technologies.

Capture of CO2 is best carried out at large point sources of emissions, such as power stations aswell as other large industrial production plants. There exist a number of CO2 capture technologiesin use or under development. Some of them have been fully operational and commercial for decades,such as those used by the chemical industry for ammonia production and in natural gas production.

After capture, CO2 is usually compressed to form a supercritical or dense fluid and is generallytransported by high pressure pipeline to the storage site.

Injection of CO2 into deep geologic formations uses the same technology that has been developedand applied successfully for more than twenty-five years by the oil and gas industry in conductingenhanced oil recovery operations. Computer simulations of all fluids' behaviors in geologic reservoirs,the systematic planning in the siting of injection and production wells, and conventional well drillingtechnology and completion of wells are all adaptable readily from CO2 enhanced oil recoveryoperations to CO2 storage applications. Further, the technology of CO2 injection will have similaritiesto underground natural gas injection and storage activities in many parts of the world, particularlythe extensive natural gas storage activities in the United States and parts of Europe. There are alsosimilarities to acid-gas injection, which has a 30-year history in Western Canada.

Assessment of CO2 emissions until 20504

GtCO2/yr

70

50

30

40

20

10

0

60

CO2incentives

introduced (USD 50/t),

CCS technologies

available and

deployed

Business-as-usual

scenario

CO2incentives

introduced (USD 50/t),

CCS technologies

not available

200

0

201

0

202

0

2030

204

0

2050

Source: The Prospects for CO2 Capture and Storage, IEA 2004

4. These data apply to the power and manufacturing sectors and include some non-fossil fuel related emissions (such as in the cement

industry) that amount, however, to less than four percent of the total CO2

emissions; the data do not include emissions due to deforestation.


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Once on site, the carbon dioxide may be stored in several ways: in deep saline aquifers (on- andoffshore), in depleted oil or gas fields (on- and offshore), in active oil or gas fields for enhancedoil or gas production (on- and offshore), in coal seams (onshore), or by direct injection into thewater (offshore).

CO2 storage capacities of geological formations

Potentially, huge quantities of CO2 could be stored in several types of formation. The most

important of these and their estimated storage potential are:

Sequestration Option Global Capacity

Oil and gas reservoirs 100 - 1,000 Gt Deep Saline aquifers 100s - 10,000 Gt Coal seams 10 - 100 Gt

Many uncertainties remain and capacity estimates and the associated methodologies used

by researchers vary significantly. But these formations have the potential to store all energyrelated CO2 emitted within next decades. During the period 2000-2010, the average amount

of CO2 emitted worldwide would be close to 30 Gigatonnes (Gt) per year.

Relevant to the various debates about CCS are the relative potential onshore and offshore storagecapacities, and their geographical location. For some countries such as those located within the EU,offshore storage represents the main large-scale option. For some others such as the United States,Canada or Australia, onshore storage is currently the preferred option.

Various categories of CCS

Carbon dioxide capture and storage activities may be conducted for various purposes, which arerelevant when thinking about legal framework(s). The four categories described below are providedto the reader as an analytical tool for thinking about legal issues raised in this publication.These categories may overlap in some cases and do not necessarily correspond to discrete practicesor scientific categories.

G Experimental: experimental projects are carried out to test some hypothesis or study the effectsof some activities or technologies.

G CO2 Enhanced Resource Recovery: In enhanced oil recovery (EOR) CO2 is injected into operationaloil reservoirs in order to increase the mobility of the oil. CO2 is often purchased for this purpose.Much of the CO2 remains trapped in the reservoir. Enhanced coalbed methane recovery (ECBM)and enhanced gas recovery (EGR) can also use CO2 to push and extract gas available in geologicalformations.

G Disposalor Permanent Storage: disposal implies permanence of the storage. CO2 is injected inthe relevant formation and abandoned there permanently. Disposal in this context is not intendedto have any implication on whether CO2 is to be treated as a waste or pollutant.

G Storage: storage has a temporary objective. CO2 is injected in the relevant formation with a

view to be retrieved at a later stage, whether for future EOR activities or other.

Source: The Prospects for CO2 Capture and Storage, IEA 2004


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As is further described in Parts 2 and 3 below, CCS experimental and also EOR activities raisedifferent legal challenges from those raised by disposal or storage activities. In the EOR context,for example, CO2 is often purchased from a natural source of CO2 or a gas processing facility thatproduces natural gas and CO2, which has different legal implications for treating CO2 as a commodity,a waste, or pollutant, or a fluid in a storage experiment. Experimental and EOR projects involve

different quantity and time scales. They often can be carried out under existing legal frameworksand are already subject to abundant regulations in some jurisdictions. By contrast, storage andespecially disposal of carbon dioxide do not easily fit in existing frameworks and, when they do,may face significant impediments. There is also a fine line between these activities, particularlybetween EOR and disposal of CO2 in depleted oil fields, that needs to be taken into account whenthinking about a CCS framework.

Finally, the terms storage, placement and disposal are often used indiscriminately, which createsconfusion. The word storage in the expression Carbon Capture and Storage may thus referalternatively to EOR, storage or disposal situations. We may also use the term storage indiscriminatelyin this paper, unless otherwise specified in order to illustrate a specific point or to attempt a

clarification of these issues.

The CCS time line

Understanding the time line of CCS activities is also relevant when thinking about the legaland regulatory aspects of CCS. The simple diagram below shows the time line of the differentstages of CCS.

As far as a storage site is concerned, the main conceptual diff iculty lies with the injection and

post injection stages. Storage of injected CO2 occurs while injection of additional CO2 takes place

in the same reservoir and until the reservoir is judged to be full for various subsurface technical

reasons (e.g., CO2 injectivity at the wells are no longer at an acceptable level, or that migrationof CO2 in the subsurface layers is predicted to reach a fault that can allow for leaks) or that

capture of the CO2 is no longer necessary. Injection may thus take place over a period of several

years or decades with storage taking place at the same time. It is only when injection in therelevant reservoir is completed and the reservoir is sealed that storage becomes a completely

separate stage (the post-closure stage).


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One of the specificities of CCS is that while capture, transport and injection of CO2 occur over a numberof years or decades, the necessary storage timeframe is hundreds or perhaps a thousand years. 5

On-going relevant CCS experiences

(EOR, RD&D, commercial)

A number of CCS projects are currently being carried out at dif ferent stages around the world.The two maps below show the location of the main carbon dioxide capture projects and carbondioxide storage monitoring projects.

There are around 80 CO2 EOR sites currently in use around the world, all operated by major oilcompanies; the majority is in North America where approximately twenty to thirty million metrictons of CO2 are injected annually. Others are planned or already operating in the United ArabEmirates, China and parts of Europe. However, the focus of these projects is not on storage andthey usually only have minimal long-term storage and monitoring components.6

Capturing CO2 for injection


5. We need to put into context what one thousand years mean in history and especially in the context of the technological changes in

history. Sam Holloway of the British Geologic Survey presented a paper at the October 2003 IPIECA Workshop on Carbon Dioxide Capture

and Storage in which he reminded the audience that approximately 1000 years ago was the Norman Conquest of Britain.

6. That is not to say that these projects are not also storing CO2. For example, the EOR operations at Rangely, Colorado, USA began in

1986 and it has been estimated that more than 22 million metric tons of CO2 are being stored at the geologic formations at the site.

(source: communication with A. Lee, ChevronTexaco)

Source: IEA GHG R&D Programme

Note: EOR projects are not included in the figure above.


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The Weyburn Project

On 29th May 1999, PanCanadian Resources, a major Canadian oil company, broke ground at

its EOR project site in southeastern Saskatchewan. This EOR project takes approximately 5000

tons per day of CO2 from a coal gasification plant in North Dakota, USA, and use it to

recover incremental oil. A 330 km pipeline from North Dakota has been constructed. Thefirst CO2 was injected in the first quarter of the year 2001. The field covers some 50 000

acres and the amount of oil in place was originally estimated at 1.3 billion barrels, with viscosity

23-34oAPI. Use of primary production plus waterflood will eventually recover about 34% of

the original oil in place. With EOR, this will be increased to almost 50% of the oil. The oil is

contained in carbonates at a depth of 1400 m. At this depth, miscibility can be achieved

with CO2, thereby improving oil production. Any CO2 produced with the oil will be captured

and reinjected. At the conclusion of the project, some 19 million tons of CO2 will have been

sequestered in the reservoir.

This project represents a unique opportunity to monitor the storage of injected CO2, in a

depleted oil reservoir as part of a CO2-EOR operation. A project to carry out this monitoringhas been developed by Saskatchewan Energy and Mines, PanCanadian Resources and the

Petroleum Technology Research Centre (PTRC) of the University of Saskatchewan with assistance

from the IEA Greenhouse Gas R&D Programme. The monitoring programme includes all aspects

of the fate of the CO2 in the reservoir; in particular, its reactions with the formation and

formation fluids, and its movement within the reservoir. This work could lead to predictions

about what happens to CO2 in a carbonate reservoir and about optimizing CO2 storage in

an oil reservoir as opposed to optimizing oil production.

Source: from Greenhouse Issues" Number 43, July 1999 and IEA GHG R&D Programme (http://www.co2captureandstorage.info)

A number of RD&D projects are also investigating the use of deep saline aquifers in North America,

China, Japan and parts of Europe. A major demonstration project in Europe is underway in the

Norwegian Sleipner West gas field in the North Sea, where the technical and economic viability of

the process is being confirmed by the injection of approx 1 Mt/y of CO2 into an undersea aquifer.

It is the first commercial-scale CO2 storage in an aquifer.7

Apart from these commercial projects, there are also a number of R&D programmes in various

countries examining different issues linked to reservoir characteristics and long term storage aspects,

including monitoring, leakage etc.

On-going international cooperation on CCS

A number of initiatives have been launched by both the public and private sector to study, develop

and, as the case may be, promote CCS technologies and activities and advance the CCS legal and

regulatory framework.

7. Source: CO2 Capture and Storage in Geological Formations, IEA WPFF, 2003 (http://www.iea.org/dbtw-wpd/

textbase/papers/2003/CO2_Storage_Fossil_Fuels.pdf)


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CO2 storage with monitoring research


The IEA is actively involved through:I its Implementing Agreements including in particular the IEA Greenhouse Gas R&D Programme

(IEA GHG). The IEA GHG is an international collaboration of governments and industries

from many countries, with several linked objectives:

G to identify and evaluate technologies that could be used to reduce the emissions of

greenhouse gases arising from the use of fossil fuels;

G to disseminate the results of those evaluations and

G to identify targets for research, development and demonstration, and promote the

appropriate work.8 It was established in 1991 and since then, its main focus has been

on capture and storage of CO2. A number of other IEA Implementing Agreements

complement the activities of the IEA GHG Programme in the area of CCS. They include,among others, the IEA Clean Coal Center and Implementing Agreements dealing with

hydrogen, advanced fuel cells and enhanced oil recovery.

I its Working Parties, including in particular the IEA Working Party on Fossil Fuels (IEA WPFF).The IEA WPFF focuses on advancing R&D on Zero Emissions Technologies for fossil fuel

applications. Its initiatives include communication activities (organization of conferences,

publications), coordination of R&D work performed by the relevant Implementing Agreements

and cooperation with non-IEA member countries.

8. http://www.ieagreen.org.uk



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I itsSecretariat, which has been actively working on carbon storage in the wider energy andclimate mitigation context. Carbon storage is included in the IEA SecretariatWorld EnergyOutlookfor 2003 and 2004. The Secretariat is also actively involved in studies, conferencesand workshops organization such as the Paris Workshop and this study. Of particular relevance,the IEA Secretariat published a book on the Prospects for CO2 Capture and Storage (IEA

2004) in a new series Energy Technology Analysis.

The Carbon Sequestration Leadership Forum (CSLF)9 is an international initiative under the auspicesof the Government of the United States bringing together 16 countries and the European Commission.The purpose of the CSLF is to:10

Facilitate the development of improved cost-effective technologies for the separation and captureof carbon dioxide for its transport and long-term safe storage; to make these technologiesbroadly available internationally; and to identify and address wider issues relating to carboncapture and storage. This could include promoting the appropriate technical, political, andregulatory environments for the development of such technology.

The CSLF Legal and Regulatory Taskforce was created in 2003 to promote a legal and regulatoryframework for CCS activities. Among other activities, the CSLF legal and regulatory taskforce organizeda meeting in London on July 14-16 2004 designed as a follow up to the Paris Workshop.

The Intergovernmental Panel on Climate Change (IPCC) has prepared a special assessment reporton CO2 capture and storage technologies (to be released in 2005).

In the private sector, the CO2 Capture Project11 was created by eight leading energy companieswith a view to reduce the cost of CO2 capture from combustion sources. Its Policy & IncentivesTeam works on national and global policies, regulations and legislation, incentives and any otherexternal developments that may impact or benefit the technology program being developed bythe CO2 Capture Project.

These various initiatives, among others, have all contributed to the understanding of the existinginternational and national legal frameworks applicable to CCS, identifying legal and regulatorygaps in these frameworks and formulating recommendations for regulating CCS.


9. http://www.cslforum.org/

10. The charter of the Carbon Sequestration Leadership Forum is available at www.cslforum.org.

11. http://www.co2captureproject.org


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2. THE INTERNATIONAL LEGAL FRAMEWORK 21

2. THE INTERNATIONAL LEGAL FRAMEWORK

The international legal framework is relevant primarily to offshore storage. Onshore storage is

subject almost exclusively to national legal frameworks, although any activity by one State on

its territory which has an adverse effect on the territory of another will engage rules of customaryinternational law.

The main international legal frameworks relevant for carbon storage activities are the Law of

the Sea (UNCLOS), the marine environment protection framework and the climate change

framework. The latter two frameworks embody two of the main environmental objectives of the

international community that have so far been pursued independently from one another despite

sometimes overlapping scopes namely, stabilizing the atmospheric CO2 and protecting the

hydrosphere and its environment.

The marine protection framework was established before the emergence of CCS as a major CO2

emissions reduction option. It is not clear if, or to what extent, this framework contains constraintson offshore carbon storage activities. The climate change framework on the other hand has yet

to deliver effective CO2 emission reduction obligations on contracting parties and incentives for

CCS development.

How to combine the respective objectives of these frameworks in the face of technological change

and of the growing knowledge about climate change is one of the main challenges to the development

of an enabling international legal framework for CCS activities.

Main international conventions discussed in this paper

Convention Subject Signature Entry into Force

UNCLOS Overall framework:

Marine Jurisdictions1982 Yes

and Deep Ocean Mineral

Resource Exploitation

London Convention Marine Environmental Protection 1972 Yes

London Protocol Marine Environmental Protection 1996 No

OSPAR Convention Marine Environmental Protection 1992 Yes

UNFCCC Climate Change 1992 Yes

Kyoto Protocol Climate Change 1997 Yes

Marine Protection

International marine environment protection was established in 1972 with the London Conventionto regulate the dumping of wastes and other matter at sea. In 1982, this field was extended

through the adoption of the United Nations Convention on the Law of the Seas (UNCLOS).Being an overarching construction, UNCLOS does not contain detailed operative provisions on

most maritime issues; rather, it provides a framework for all areas, including marine protection,

and allows other, more targeted treaties to fill in the gaps. The main provisions of UNCLOS

relevant to CCS are included in Annex I.


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With regard to marine pollution, global standards are set by the Convention on the Preventionof Marine Pollution by Dumping of Wastes and other Matter, signed in London in 1972 and knownas the London Convention 1972. Beneath the London Convention, indeed encouraged by it,exist several regional agreements that cover specific areas of the ocean - the most widely knownof these is OSPAR, the Convention for the Protection of the Marine Environment of the North-

East Atlantic.12 OSPAR is also notable as its regulations on marine pollution are markedlystricter than those of the London Convention, and, unusually, its decisions are legally as opposedto politically binding on its Contracting Parties

UNCLOS and the legal Zones of the Sea

The conditions of application of the various international maritime agreements to carbonstorage depends on location of the storage sites within one or the other of the specific legalzones of the sea defined by UNCLOS: the territorial sea, the Exclusive Economic Zone and thehigh seas. A country's territorial sea constitutes the band of ocean stretching up to twelvemiles from its shores. Within this area, nations' sovereignty over the territorial sea is exercisedsubject to ... rules of international law. A nation's Exclusive Economic Zone (EEZ) extendsfrom the end of the Territorial Sea out to 200 miles from a country's coast (i.e. 188 milesfrom the end of the territorial sea). Coastal states have sovereign rights to explore and exploitthe natural resources of the sea bed and subsoil of the continental shelf [land which isusually contained within the EEZ]. Beyond this area stretch the high seas. The high seas areopen to all states, however, the states may also complain if activities of others cause undueharm to their interests.

Continental shelf

Continentalslope

Continental rise

Mainland

High seasTerritorialsea

200 miles

Exclusive economic zone

Deep seabed

12miles

12. Other notable regional agreements are outlined and discussed in Bewers, Review of International Conventions Having

Implications for the Storage of Carbon Dioxide in the Ocean and Beneath the Seabed, IEA Greenhouse Gas Research and

Development Programme, Report # PH4/16



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Atmosphere stabilization

The climate change framework was established in the early 1990s to restrain man-made emissionsof greenhouse gases. It consists primarily of the United Nations Framework Convention on ClimateChange (UNFCCC) signed in 1992 and effective since 1994, its Kyoto Protocoladopted in 1997 and

effective from February 2005 and regional and national policies to reduce emissions. The mainprovisions of the UNFCCC and the Kyoto Protocol relevant to CCS are included in Annexes II and III.

The main objective of the climate change framework is to stabilize the concentration of greenhousegases, including CO2, in the atmosphere through the reduction of their emissions. The UNFCCCdoes not create binding obligations upon States to reduce CO2 emissions. The Kyoto Protocol createsbinding obligations on developed countries that ratified it to reduce their net CO2 emissions by anaverage of 5.2% below 1990 levels through a system of emission quotas.

Neither the UNFCCC nor the Protocol expressly include or exclude CCS as an encouraged or permittedemission reduction device giving rise to emission credits. The status of CCS under the Kyoto Protocolhas to be clarified in order for CCS to enjoy the benefits provided thereby, in particular those of

the emissions trading system. Key greenhouse gas accounting issues must be addressed beforeCO2 capture and storage activities can be included in the portfolio of climate change mitigationmechanisms. They are discussed in the IEA paper CCS Issues - Accounting and Baselines underthe UNFCCC, IEA 2004.

Other relevant international instruments

Beyond these two overarching frameworks, other environmental agreements, such as the Conventionon Environmental Impact Assessment in a Trans-boundary Context (ESPOO), the European UnionEnvironmental Impact Assessment Directive, further habitat protection conventions and the BaselProtocol on Liability and Compensation for Damage Resulting from Transboundary Movement of

Hazardous Wastes and their Disposalmay apply to CCS activities depending on the nature of theproject involved.13These instruments, although relevant, represent less of a challenge to CCSdevelopment and are therefore not addressed in this paper

In summary, beside the potential role that climate change instruments may play in the future, themost relevant international treaties for CCS activities are those governing the marine environment.The London Convention, its 1996 Protocol and the OSPAR Convention are the most relevantmarine environment protection treaties. It is not clear if, or to what extent, this framework imposesconstraints on offshore carbon storage. They were therefore specifically covered during the ParisWorkshop and are discussed in greater detail below.

The London Convention Framework

The London Convention framework comprises the London Convention itself and its 1996 Protocol(known as the London Protocol).

The London Convention is one of the oldest global conventions to protect the marine environmentfrom human activities. It has been in force since 1975 and has 80 contracting parties. Its directrelevance to offshore carbon storage is however limited as it primarily applies to the water column


13. For an overview of all of these treaties, see R. Purdy, R. Macrory (2004), Geological Carbon Sequestration: Critical Legal

Issues, Tyndall Centre for Climate Change Research.


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The relevance of the London Convention to carbon storage is limited as it only applies to storage

conducted from aircraft and vessels and platforms in the water column. Consequently, it does not

apply to storage in the ocean seabed or its subsoil or from a land-based pipeline (one might argue,

however, that the purpose of the Convention is not to protect the sea but also the sea-bed if activities

in the sea-bed have the potential to harm the sea). In addition, the London Convention only prohibitscarbon storage in the water column if CO2 is considered as industrial waste, which remains subject

to debate and clarification. Some discussions on carbon storage were held within the London

Convention a couple of years ago, but without definitive conclusions, including to the question of

whether CO2 is an industrial waste or not. The Scientific Group established under the London

Convention has a watching brief on the issue.


and not to the seabed and its subsoil. In contrast, the London Protocol, which was developed inthe 1990s to modernize and eventually replace the London Convention, is much more relevant tocarbon storage. However, only twenty of the required twenty six States are Parties to the Protocolas of July 200414, and the Protocol has therefore not entered into force yet.

The London ConventionThe London Convention objective is to promote the effective control of all sources of pollutionof the marine environment and to take all practicable steps to prevent the pollution of the seaby the dumping of waste and other matter that is liable to create hazards to human health, toharm living resources and marine life, to damage amenities or to interfere with other legitimateuses of the sea.15

14. The 20 Contracting Parties as of August 2004 are: Angola, Australia, Canada, Denmark, Egypt, France, Georgia, Germany, Iceland,

Ireland, New Zealand, Norway, South Africa, Spain, Sweden, Switzerland, Tonga, Trinidad and Tobago, United Kingdom, Vanuatu.

15. For more information on the London Convention: http://www.londonconvention.org/London_Convention.htm


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The London Convention also requires Contracting Parties to be guided by a precautionary approach

to environmental protection in the implementation of their obligations under the Convention.

According to this approach, appropriate preventive measures must be taken when there is reason

to believe that substances or energy introduced in the marine environment are likely to cause

harm even when there is no conclusive evidence to prove a causal relation between inputs and

their effects.16 It has been argued that this principle would prevent ocean carbon storage even ifCO2 is not considered an industrial waste. However, it has also been claimed that it is not clear yet

whether storage with impermeable caps would be considered as more likely to cause harm to the

marine environment.

No definitive legal position has been adopted on this issue, either by the Consultative Meeting of

Contracting Parties, the International Court of Justice or any other international entity having

jurisdiction over the matter.

The main provisions of the London Convention relevant to CCS are included in Annex IV.

In November 2004, the 26th Consultative Meeting of Contracting Parties to the London Convention

considered the challenge of stabilizing greenhouse gas concentrations in the atmosphere and

recognized that CO2 capture and storage in geological structures might offer important possibilities

for making fossil fuel use more compatible with climate change mitigation policies. In this context,

the Meeting agreed that the issue of CO2 sequestration should be included in its work programme

and to focus initially on sequestration of CO2 in geological structures. Several activities were planned

for the intersessional period to examine the legal, scientific and technical issues involved (). The

27th Consultative Meeting (24-28 October 2005) will review the progress and give guidance on

what further work should be done to establish a clear position.17

The London Protocol

The objective of the London Protocol is to protect and preserve the marine environment from all

sources of pollution and take effective measures to prevent, reduce and where practicable eliminate

pollution caused by dumping or incineration at sea of wastes or other matter.

The Protocol adopts a much more extensive approach to dumping at sea than the London Convention

as dumping applies to both:

G the deliberate disposal at sea (which includes both the water and the sea-bed and subsoil

thereof) of wastes loaded on board a vessel, and

G any storage of wastes in the sea-bed and the subsoil thereof.

In addition, the London Protocol circumvents the industrial waste definition question by prohibitingall dumping except for acceptable candidate wastes contained in a "reverse list". This reverse list

does not specifically include CO2.

Sea dumping under the Protocol does not include pipeline discharges from land, operational

discharges from vessels or offshore installations or placement for a purpose other than the mere

disposal thereof, if not contrary to the aims of the protocol.18

16. Resolution LDC.44(14), 1991

17. This paragraph is an excerpt from a letter issued in January 2005 by Mr. Jean-Claude Sainlos, Director of the Marine Environment

Division of the International Maritime Organization, to Mr. Claude Mandil, Executive Director of the International Energy Agency

18. Whether carbon storage may constitute such a placement is still an open question.


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Subject to these exceptions, the London Protocol will therefore prohibit without distinction thestorage of CO2 both in the water column and in sub-seabed repositories.

The Protocol also contains a stricter precautionary approach formulation than the London Conventionas it requires its Contracting Parties to apply it, instead of being guided by it as in the LondonConvention. CO

2would also definitely fall within its scope because it applies to the introduction

in the marine environment of wastes or other matter. However, whether or not CO2 storage wouldfail the likelihood test19 remains an open question.

The future of the Protocol is unclear, as it is still pending six ratifications to enter into force. Somecountries might be waiting for the issue of carbon storage to be clarified before proceeding withratification. In this respect, the member from the London Convention Secretariat at the Paris Workshoppointed out that should contracting parties decide that controlled storage of CO2 in geologicalstructures is acceptable, the Protocol would have to be amended (e.g., to include CO2 on thereverse list of acceptable wastes). The main provisions of the London Protocol relevant to CCS areincluded in Annex V.

The OSPAR Convention

The OSPAR Convention, established in 1992 by 15 Northern European member States and theEuropean Community,20 is considered as the most comprehensive and strict legal framework governingthe marine environment. Because it is not drafted with carbon storage in mind it is not clear if,and to what extent, this Convention contains constraints on offshore carbon storage activities.

19. Is it more likely than not to cause damage to the marine environment?

20. It is also used as guidelines for marine environment protection by non OSPAR contracting parties.


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In 2002, the OSPAR Commission decided to establish as soon as possible an agreed position onwhether placing of carbon dioxide in the sea was consistent with the OSPAR Convention andcommissioned a study by the Jurists and Linguists Group (JL Group) of the OSPAR Convention. Thefinal report of the JL Group was accepted, endorsed and authorized for publication by the OSPARCommission in 2004.21

According to this report, which is only an initial opinion and may be subject to subsequentmodification, the OSPAR Convention already provides a complex framework allowing or prohibitingcertain activities depending on the source of the material (land-based, from a vessel or from offshoreactivities) and the nature of the placement (scientific experiment, facilitating oil or gas productionor other mere disposal, which includes placement for the purpose of mitigating climate change).The main features of the regime are:

I Land-Based Sources regime: discharges into the maritime area22 from land-based sources23

are not prohibited, but must be strictly regulated or authorized;

I Dumping (from a vessel): any carbon placement classified as dumping from a vessel isprohibited (scientific research is not dumping)

I Offshore activities:

G placement of CO2 arising from the operation of an offshore installation (offshore arisings)is not prohibited but must be authorized or regulated;

G placement of offshore arisings for scientific research is not prohibited but must be inaccordance with the Convention;

G placement of non offshore arisings brought to an offshore installation is authorized toenhance hydrocarbon production, but is otherwise treated as dumping.

The report of the JL Group was welcomed by many participants at the Paris Workshop as clarifyinga complex area.

Nevertheless, the OSPAR framework constitutes a complex legal arrangement under which placementwith different environmental effects may be treated the same and placements with the sameenvironmental effects are treated differently. For instance, like the London Protocol, the OSPARConvention does not distinguish between storage in the water column and off-shore geologicalstorage despite their significant differences in terms of environmental effects. According to theOSPAR JL Group, further thought is needed on the interrelations between the current legal report,possible physical impacts and the appropriate regulatory approach. Some participants in the JLGroup noted that the possible effect on the marine environment from placement directly into thewater column and from placement into geological structures in the subsoil will be basically different.Hence, these participants drew attention to the argument that, to the extent that placement of

CO2 into the maritime area does not result in "pollution" as defined in the Convention, there isno prohibition on such placement under Annexes I, II or III, and that, if CO 2 is injected into a


21. Available on-line at www.ospar.org in Meetings and documents/Download Summary Records/meeting cycle 2003/2004/

OSPAR 2004/Annex 12

22. Which covers the sea (from the tidal limit), the seabed and its underground strata

23. Land based sources include tunnel, pipeline as well as sources associated with man made structures placed in the maritime area

other than for the purpose of offshore activities (non-offshore installations). This latter possibility raises a number of unanswered

questions: can an offshore installation become a non-offshore installation? Can a non-offshore installation be located on an offshore

installation? What is the status of a non offshore installation without a pipeline link to the land (e.g. an offshore power station)? Regarding

this latter question, the OSPAR Secretariat representative at the Paris Workshop recognized that there might be boundary problems between

vessels, non-offshore installations (i.e., land-based sources) and offshore installations.


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geological structure in the subsoil in such a manner that it is unlikely to escape, such an injectionwill therefore fall outside the scope of these Annexes. Other participants considered that there isa prohibition in general on the dumping of wastes and other matter, and that therefore, irrespectiveof whether there is pollution as defined in the Convention or not, these activities fall within thescope of Annex II.24

One additional issue raised during the Paris Workshop, and which is alluded to in the JL paper,regarded the impact on the marine environment of CO2 released to the atmosphere. The OSPARprecautionary principle provides that preventive measures are to be taken when there are reasonablegrounds for concern that substance or energy introduced directlyor indirectly into the marineenvironment may bring about hazards to human health, harm living resources and marine ecosystems[]. CO2 released to the atmosphere is eventually absorbed to a large extent by the oceans andis therefore indirectly introduced in the marine environment. How the OSPAR precautionary principleapplies to this situation needs to be clarified and taken into consideration when addressing theissue of offshore geological carbon storage.

The main provisions of the OSPAR Convention relevant to CCS are included in Annex VI.

Interpreting and amending international treaties

As indicated in the previous sections, the need for the international community to carry out additionalwork regarding the conditions of application of international conventions to carbon storage was arecurring issue during the Paris Workshop.

One general feature of the marine environment protection framework is that it was establishedbefore CCS became a serious environmental policy option and before greenhouse gas reductionbecame a priority environmental objective of the international community. Accordingly, these treatieswere not designed with offshore carbon storage in mind and their application to CCS depends onthe interpretation of their general provisions. As acknowledged in the case of OSPAR, suchinterpretation may result in a somewhat inconsistent framework where placements with differentenvironmental effects could be treated the same and placements with the same environmentaleffects could be treated differently.

Beyond these issues of interpretation and consistency, the necessity for any legal framework to beregularly updated to take into consideration scientific and technological progress as well as anynew objective of the international community must be kept in mind when contemplating a frameworkapplicable to CCS.

Should the Contracting Parties conclude that carbon storage is not permitted under the currentwording of these conventions, contracting parties must take a proactive role in deciding whetheror not they want to amend international conventions in order to allow for some forms of controlledcarbon storage. Necessary amendments might include putting CO2 on the reverse list of the1996 Protocol of the London Convention, after its entry into force.

The amendment procedures for the London Convention, the London Protocol and the OSPARConvention were described in detail at the Paris Workshop.25Two common features are particularlyrelevant for this paper:

24. JL-report paragraph 9, ref also paragraph 30.

25. Jolyon Thomson's presentation at http://www.iea.org/Textbase/work/2004/storing_carbon/agenda.htm


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G any amendment of these instruments will be a relatively lengthy process as it requires approvaland ratification by a specified majority or unanimity of contracting parties;

G amendments will only bind the contracting parties that have ratified them.

Given these constraints, and given the room for interpretation provided by the significant uncertainties

existing under the current wording of these conventions, the Contracting Parties must work onrefining the interpretation of these instruments, taking into consideration the specificities of carbonstorage. The interpretation of the existing body of international conventions must be made in thelight not only of the objective prevailing at the time of the drafting of the relevant convention, 26

but also in the light of the new environmental concerns within the international community andthe technological progress accomplished.27

Since the UNFCCC (1992), atmospheric greenhouse gas stabilization is a clear environmentalconcern of the international community, even for those countries that have not signed or ratifiedthe Kyoto Protocol.

Atmospheric stabilization inevitably involves the Contracting Parties to the marine conventionsand therefore it is an issue of importance and some urgency to be considered in the context ofthe interpretation of, and any amendments to, the provisions of the marine environmentalprotection conventions.

These considerations lead to a number of questions regarding the interpretation of the abovementioned international conventions:

G How should the general objective of protection of the marine environment be interpreted inthe light of the inevitable acidification of the oceans through absorption of carbon dioxidefrom the atmosphere should CO2 emissions not be curbed?

G How should the notion of placement and mere disposal be interpreted given the purpose ofcarbon storage?

G How should the precautionary principle/approach be interpreted given the likelihood of harmresulting from the absorption of carbon dioxide from the atmosphere through wholly naturalexchange processes?

G Should CO2 be considered a waste?

G Is scientific knowledge regarding carbon storage issues sufficient to bring the necessaryclarification to the prevailing international conventions?

In conclusion, contracting parties to the London Convention, the 1996 Protocol and the OSPARConvention should take a proactive approach towards interpreting, clarifying and, as warranted,modifying these instruments if they want a coherent international framework for carbon storageto be developed.


26. The Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context includes

any agreement made between all or some of the parties in connection with the conclusion of the treaty as well as any subsequent agreement

between the parties, any subsequent practice in the application of the treaty or any relevant rules of international law applicable in the

relations between the parties.

27. In its opinion in Botswana (2000) the International Court of Justice noted that as a supplementary basis for interpretation, the Vienna

Convention on the Law of Treaties does not proscribe taking scientific developments into account.


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This approach will have to take into consideration the various objectives of contracting parties,including their climate change mitigation objectives and relevant scientific progress. Shouldinterpretation and clarification fail to create an enabling framework for CCS, contracting partieswill need to consider amending some provisions of these conventions.

If they fail to take such a proactive approach, broad deployment of offshore carbon storagedevelopment could likely be stalled by the legal uncertainties currently existing under the LondonProtocol and OSPAR.28 Furthermore, contracting parties' ability to influence the debate at a laterstage might be jeopardized, particularly if they let decisions on these instruments and the overallframework be made by others at a different level or in different forums.

28. Commercial oil and gas projects such as Snovhit or Gullfaks may still continue under such legal uncertainties but will likely maintain

project configurations that would be favourable under specific legal interpretations.


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3. NATIONAL FRAMEWORKS

In contrast to offshore storage, which falls within the scope of the international legal frameworkdescribed above, onshore CCS activities are mostly governed by individual national legal frameworks.

Legal and regulatory situations vary considerably from one country to another depending on eachcountry's resources for CCS activities (onshore/offshore), how advanced countries are with carbonstorage technologies and obtaining public acceptance. Countries with large exploited oil and gasresources tend to have much more experience of CCS activities (through CO2 EOR) than those withno such resources.

At the Paris Workshop, five countries (the United States, the United Kingdom, Japan, Canada andAustralia) presented their national experience of CCS and the relevant framework applicable to them.

These countries all have in common that at least some CCS activities are conducted on their territoryin the absence of a CCS-specific legal and regulatory framework. Each of these various activities is

governed by existing laws, such as those governing oil and gas activities, mining, pipelines, transport,environmental impact assessment, property or liability. CCS activities thus potentially fall withinthe scope of a myriad of regulations and carrying out a comprehensive due diligence of the applicableframework can be an expensive exercise.

These countries have already identified various gaps in their existing legal and regulatory frameworksthat need to be addressed in order to allow more widespread carbon storage activities. Overall, theirexisting frameworks are better suited to the capture and transport stages of CCS than to the injectionand storage stages. Generally, the preferred route to cover existing gaps is the amendment of existinglegislation rather than the adoption of comprehensive legislation specific to CCS.

The largest gaps identified lie in the issues associated with long-term storage (i.e., site characterization,

monitoring and liability). Most countries indicated that they lacked sufficient empirical understandingof associated risks to fully assess these gaps and thus improve their national regulatory frameworks.The other main gap is the inclusion of CCS in climate change policies and mitigation mechanisms.

The main features of each national presentation are described in the following sub-sections.

The last sub-section provides some information about legal and regulatory frameworks in countriesfor which no dedicated presentation was given at the Paris Workshop, but which were discussedduring this workshop or during the London follow-up meeting.

The United States

There are two levels of legal and regulatory framework in the United States in accordance with theallocation of powers between the Federal Government and the States.

At the Federal level, the Environmental Protection Agency (EPA) currently considers that CO2, andother greenhouse gas emissions, are not air pollutants subject to regulation under the federal CleanAir Act for purposes of climate change.29There are also no federal laws explicitly governing eachstage of CCS, i.e. capture, transport, injection and post-injection.

3. THE NATIONAL FRAMEWORKS 31

29. However, at the time of writing this paper, this issue is being litigated in Federal Court, where a number of States and environmental NGOs

are suing the EPA on the ground that CO2

and other greenhouse gases are air pollutants subject to regulation under the Clean Air Act.


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There is however a large body of existing federal laws governing interstate pipeline activities,

hazardous wastes, and underground injection wells and their controls, some of which may apply

to certain carbon storage activities. Whether or not the substance being injected has a commercial

value might have a bearing on the determination of the future framework for carbon storage.

At the State level, there is a significant body of regulations governing capture, transport and injectionthat has been developed for the oil and gas industries and wide range of injection activities. Site

ownership issues also fall under the jurisdiction of State laws, which vary considerably from one

State to another.

Given this institutional structure, regulating CCS in the United States will not be a one stop

shop. Some powers might be vested with the Federal government, but others will be vested

with the States.

Whichever mix is eventually chosen, there is already a substantial body of federal and state

laws relevant to CCS activities and thinking about how they apply to carbon capture and storage

has begun. Whether regulatory oversight will come from individual States, the Federal Government

or a combination will depend largely on how existing federal laws are interpreted, including the

Clean Air Act. Should it be decided that federal laws do not apply, there maybe more room for

States to act.

The United Kingdom

There is a signif icant body of regulations applicable to on-shore CCS activities in the United

Kingdom,30 although these regulations were generally not designed with CCS activities in mind.

Regulations applicable or potentially applicable to on-shore storage include the Petroleum Act,the Pollution Control Act, the Planning and Building Act, the Chemical Regulations, the dangerousgoods legislation, the health and safety legislation, the Regulations to the Petroleum Actandthe Major Accident Hazards Regulations. In addition, any CO2 storage activity will have to be incompliance with the provisions of applicable EU regulations, including the Water FrameworkDirective, which is described below (footnote 34). There is no existing case law on carbonstorage in the UK, but there are precedents on gas storage.

Overall, the existing framework is not likely to prohibit carbon storage. Adapting it to take into

consideration capture and transport activities is not expected to raise particular problems. Injection

and storage activities on the other hand raise more difficult issues that will have to be addressed.

According to a study carried out for the British Government, there seems to be little doubt that

CO2 would be a waste for permanent storage (i.e. disposal in the classification contained in

Part 1 above) because CO2 has no value and there is no intention to recover it at a later stage.

For CO2 EOR/ECBM, the classification of CO2 may depend on the value placed on the delivered

CO2. If CO2 is a waste, its storage is governed by applicable EU regulations as transposed in the

UK law, i.e. the Waste Framework Directive and the Directive on Dumping of Waste Materials.

30. Given its oil and gas resources, the United Kingdom is however more interested in offshore storage, which falls within the scope of the

international frameworks described in Part II above as well as regulations specifically applicable to offshore activities under the jurisdiction of

the Crown Estate.


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The most important gaps identified were regarding the status of CCS with the market based

and regulatory framework to address CO2 abatement, in particular the emission trading system,

and the long term monitoring and ownership issues associated thereto. Emissions data from

offshore injection would have to be provided to the UK Greenhouse Gas inventory.

According to one of the speakers from the UK at the Paris Workshop, the UK needs moreinformation and research and development on carbon storage in order to adapt the existing

framework and fill in gaps that have been identified.

Japan

There is no legal or regulatory framework explicitly applicable to carbon storage in Japan.

As of July 2004, there is only one field experiment being conducted in Japan. Located in Nagaoka

City, Niigata Prefecture, this project is operational since July 2003 and is expected to be completed

in November 2004. 20 to 40 tons of CO2 are injected daily in an aquifer (i.e., a total of 10,000tons) with a view to verify a risk analysis code for carbon storage. Transportation of the CO 2 is

carried out by tank lorry.

The research institute responsible for this experiment is acting under the existing legal framework,

i.e., mainly the Road Traffic Law, the High Pressure Gas Safety Law, the Mining Law, the MiningSafety Law, theAgricultural Land Law, the Water Control Pollution Lawand the Waste DisposalLaw. All responsibilities for the project lie with the research institute.

According to the speaker from Japan at the Paris Workshop, this project can be conducted

under existing laws because it is experimental and small in size. Additional regulation would

have to be adopted for larger projects.

Canada

The Federal Government and the Provinces of Canada have different jurisdictions over CCS activities.

Resource ownership and development are under the jurisdiction of the Provincial Governments.

The Federal Government has jurisdiction when transboundary or trade and environmental issues

are involved.

There are currently two on-going CO2 EOR projects in Canada31 and almost fifty acid gas (H2S)injection schemes for disposal and containment. Four additional demonstration projects may

be coming up in Alberta in the coming years. Although there are no incentives in the market

to encourage private operators to engage in long-term storage, the Canadian government is

strongly encouraging any CO2 EOR initiative as well as any longer term storage and monitoring

initiatives. A federal CO2 capture and storage incentive program and an Alberta royalty credit

program have been initiated to further stimulate commercial demonstration projects in CO2 -

based resource recovery.


31. A small scale project in Alberta and the Weyburn project, which is interprovincial and international (see box on Weyburn in Part 1 above)


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Federal and Provincial frameworks that may apply include legislation governing land administration,the land-lease, explosives and dangerous goods, petroleum safety, pipelines, mineral resourcesdevelopment, occupational health and safety, planning, coal mining safety, the environment andoff-shore activities. None of these frameworks were specifically designed to address CCS.

Like other countries reviewed in the previous sections, existing frameworks cover adequately orcould be modified to cover adequately the injection, transport and possibly injection stages of CCS.There are serious gaps regarding long-term storage issues such as monitoring and liability. There isalso no framework governing the valuation of CO2 stored, emissions reduction and emission permits.

The speaker from Canada at the Paris Workshop indicated a preference to work with existing legalframeworks where appropriate. There might however be a need to create new frameworks for longterm monitoring and liability, as well as valuation and ownership issues. While it is unlikely thatFederal and Provincial frameworks would be combined, there is clearly a need for complementarityand consistency among these frameworks.

Australia

The Federal Government and the States of Australia have different jurisdictions over CCS activities.There is no legal and regulatory framework specific to CCS activities in Australia, except for oneproject-specific legislation for the Gorgon Project in West Australia.32 Applicable legislationincludes legislation governing occupational health and safety, the environment, petroleumactivities, mineral resources, dangerous goods, coal mining safety and health, offshore activities,land lease, land administration, explosives and dangerous goods, pipeline and planning. Inaddition, offshore geo-sequestration might be considered as dumping under the Dumping Act.

Australia recognizes the existence of legal and regulatory gaps for CCS. Accordingly, it has beenagreed that the Federal and State governments will work together to develop a common andconsistent national framework to cover all aspects of CCS regulation in the country.

The approach taken has been to prepare a draft set of non-binding regulatory principles thatwill be submitted to a ministerial council for endorsement.33 Each individual jurisdiction wouldthen decide whether, when and how to implement them. Because many of the issues involvedwith CCS are already covered by existing legislation, it is expected that implementation of theseprinciples would mostly be accomplished through amendment of such existing legislation. Accessand property rights as well as long-term liabilities are considered to be the issues on which mostwork still needs to be done. Community consultations to raise community awareness are consideredparamount and have started in some areas.

32. ChevronTexaco (as operator) is planning one of the largest geological CO2sequestration projects in the world. The development will

be based on the Gorgon gas field which is one of the world's premier hydrocarbon resources. The gas field is situated 130 km off the

north-west coast of Western Australia (source: IEA GHG R&D programme (http://www.co2captureandstorage.info)).

33. This draft has been prepared by a regulatory reference group involving all sectors from governmental to private and the civil society.


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Other countries

The EU: As indicated above, there are several EU directives that are potentially applicable to CCS,the Framework Directive on Waste Materials (75/442), the Directive on Dumping of Waste

Materials (1999/31), the Environmental Impact Assessments Directive (85/337 as amended byDirective 97/11) and the Framework Directive on Water(2000/60/EG).34These directives werenot designed with CCS in mind and, as of the date of writing this paper, no CCS legislation isbeing made in Brussels. The applicability of these Directives to CCS will therefore be determinedby each EU member State separately, on the basis of their various implementation instruments(see for instance the case of the Netherlands below).

Also relevant in the European Union is the EU Emissions Trading Scheme (ETS) that allows CCSsubject to the establishment of satisfactory monitoring and reporting guidelines.

Norway: Norway is probably the most advanced European country regarding CCS. It has anemission tax on carbon of ca 300 NOK35 per ton of carbon, which has provided incentive for

the development of a number of commercial and demonstration projects, including the Sleipnerproject described above and a new LNG related commercial storage project. 36 Norway is alsoworking on a strategy to develop gas-fired power generation with CO2 capture and storage.

CCS in Norway is not subject to a CCS specific legal framework. On-going projects are mostlycarried out under the petroleum legislation. Other applicable legislation includes pollution control,health and safety and environmental legislation. Under this framework, the four stages of CCSare quite comprehensively regulated for petroleum projects. Gaps include adjusting the nationalgreenhouse gas inventory. For non-petroleum projects, a framework might have to be set up oradapted (possibly under the electricity legislation in the case of CCS for power plants).

The Netherlands: The Netherlands have taken a proactive approach to CCS by examining issuesleading to the creation of an underground CO2 buffer facility, capable of providing subsequentlythe stored CO2 for commercial application such as EOR. The initial stage in the project was thecarrying out of a feasibility study addressing inter alia the legal aspects of the project, includinga provisional analysis of the permit and environmental impact assessment, and the concessionstatus of the envisaged buffer manager.37The legal taskforce set up for this purpose completedits report in 2001.38 It concluded that the relevant framework was both that set up by MiningAct 2001 and relevant Dutch law taken in implementation of the various above mentioned EUDirectives. The scope of the Mining Law includes underground storage of substances, matters


34 The Framework Directive on Water aims to maintain and improve the aquatic environment in the Community. The Directive defines a

pollutant as the direct or indirect introduction, as a result of human activity, of substances or heat into the air, water or land which may be

harmful to human health or the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems which result

in damage to material property, or which impair or interfere with amenities and other legitimate uses of the environment. CO2 is not on the

Directive's lists of pollutants or dangerous substances, but potential triggers include whether CO2 injection and storage has potential impact

to ground and surface waters

35. 0.76 re Sm3 fuel gas or liter liquid fuel - Norwegian Ministry of Finance 2004.

36. In October 2001, Statoil and its partners filed a formal development plan for the Snhvit Field, the first offshore gas field found in the

Barents Sea and the point of supply for Europe's first LNG export project. Ultimately, a total of 21 production wells will be drilled in the field,

along with a single CO2 injection well. All of the facilities associated with the operation of the production plant will be beneath the surface

of the sea, connected to the shore via a 160 km long pipeline. CO2 will be removed from the gas stream, and then piped back to the field for

injection through the dedicated well. (http://www.co2sequestration.info)

37. http://www.co2captureandstorage.info

38. Legal Taskforce CRUST (2001), Legal aspect of underground CO2

buffer storage report, CRUST, available on line at http://www.crust.nl


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relating to deep underground such as soil subsidence and (the extraction of) geothermal energy.Geographically, it applies to the territorial waters and the Dutch part of the Continental Shelf.The legal taskforce report concluded that:

G CO2 falls under the jurisdiction of the Framework Directive on Waste Materials, but CO2 isnot a dangerous waste material;

G Injection of CO2 in the deep underground does not fall under the jurisdiction of the Directiveon Dumping of Waste Materials;

G Underground buffer storage of CO2 is treated as an installation for the processing of wastefor which a declaration of no objections will have to be issued by the Minister of Housing,Spatial Planning and the Environment. The Minister of Economic Affairs is the competentauthority for granting a permit for mining works.

Documents

Aspectos Legales Almacenaje CO2