Date faculty of lawgroningen centre of energy law CCS and issues of post- injection liability Mark Wissink

Date faculty of lawgroningen centre of energy law >Post-injection liability  Liability for harm caused during geological storage of CO 2 for an indefinite period of time >A worst case scenario  What if x years after closure of site leakages of CO 2 cause - harm to the environment - personal injury - damage to business interests  “Fraction retained in appropriately selected and managed geological reservoirs is - very likely to exceed 99% over 100 years, and - likely to exceed 99% over 1000 years” (IPCC Special Report on Carbon dioxide Capture and Storage (2005))

Date faculty of lawgroningen centre of energy law Legal responses in EU and the Netherlands 1. A duty to (take and) pay for corrective measures to stop leakages  Proposal for an EU Directive on CCS 2. A duty to (take and) pay for corrective measures regarding harm to the environment  EU Directive on environmental liability 3. A duty to compensate for damage of persons/business interests  depends on different national laws  existing rules are not tested for a CO 2 leakage-scenario =>

Date faculty of lawgroningen centre of energy law A duty to compensate for damage: The Netherlands >General fault based liability (e.g. infringement of permit rules) >Special risk based liability rules in articles 6: Civil Code  for dangerous substances -> is CO 2 dangerous?  for waste disposal sites -> is CO 2 site a waste disposal site?  for mining activities -> is leakage of CO 2 a blow out?

Date faculty of lawgroningen centre of energy law A special risk based liability rule for CO 2 storage sites, channeling liability to one entity  creates more legal certainty  may be tailored to meet needs  may allocate costs (why should victims bear the financial burden of unforeseeable events?)  might provide (former) operator with clear risk horizon  might provide potential claimants with identifiable & financially strong defendant  would fit in with idea of transferring site responsibility to competent authority

Date faculty of lawgroningen centre of energy law Proposal for an EU Directive on CCS, Article 18: >After closure of the site and if certain conditions are met `the responsibility for the closed site, including all ensuing legal obligations, shall be transferred to the competent authority’ >Operator remains liable for pre-transfer events towards third parties? >Competent authority becomes liable for post-transfer events towards third parties? >Can national law determine liability towards third parties?

Date faculty of lawgroningen centre of energy law > The way forward I. The EU Proposal should make clear whether/to what extent it covers post-injection liability for closed CO 2 storage sites II. Post-injection liability should be channeled (in the law of the Netherlands) to a single entity