CARBON CAPTURE and STORAGE - SOME INTERNATIONAL LEGAL PERSPECTIVES Professor Richard Macrory CBE Centre for Law and the Environment, University College London Climate Change and Its Challenges for the International Legal System, London 17 Oct 2008

UK Power Station Investments for MWe of approved applications: –7390 MWe CCGT –3690 MWe renewables 10000MWe of applications being processed MWe CCGT MWe renewables Approved applications Source: BERR Applications in Process

London Dumping Convention 1972 and London Protocol 1996 Global conventions to regulating dumping of waste at sea In March 2006 the London Protocol in force, and will eventually supersede the Convention. Both instruments continue to apply in parallel until full ratification of Protocol Significance: they deal with CCS in different ways…

London Convention Key Legal Issues Concerning CCS - I Dumping of CO2 not prohibited as such but general permit as “wastes or other matter” required Jan 1996: ‘industrial waste’ included in Annex I - dumping absolutely prohibited. Defined as waste materials generated by manufacturing or processing operations No consensus as to inclusion of CO2 within this category.

London Convention Key Legal Issues Concerning CCS - II Exceptions to definition of ‘dumping’ (Art III.1(b)) 1.Waste disposed of during ‘normal operations’ CO2 injection into seabed for Enhanced Oil Recovery permissible? 2.‘Placement’ for purposes other than mere disposal, provided not contrary to aims of Convention CO2 injected for EOR or climate change mitigation? No consensus Sub-seabed storage of CO2 in any event not covered by convention? “Sea” means all marine waters other than internal waters (Art III)

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

London Protocol Key problem concerning CCS More restrictive measures for dumping of waste: –States required to prohibit dumping of all waste save for those listed in Annex 1. –Dumping of Annex 1 materials requires permit issued in accordance with Annex 2. None of categories originally listed in Annex I allowed for CO2 storage

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

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

London Protocol Timescale and process of amendment 10 February 2007 –Amendment enters into force for all Contracting Parties to Protocol, save for those sending declaration under Article 22 regarding inability to accept amendment.

London Protocol Effect of the Amendment to Annex I To allow storage of CO2 in sub-seabed geological formations. CO2 streams from CO2 capture processes for sequestration … only if: –Into a sub-seabed geological formation –Consists “overwhelmingly” of CO2. May contain incidental associated substances derived from the source material and capture and sequestration processes used –No wastes or other matter are added for the purpose of disposal.

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

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

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

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

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

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

UCL Carbon Capture Legal Programme STERN Review calls for free exchange of information in relation to CCS Legal contribution to have a open access and freely available resource site