1. Date 31.10.2008 faculty of lawgroningen centre of energy law CCS and issues of post- injection liability Mark Wissink m.h.wissink@rug.nl

2. Date 31.10.2008 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))

3. Date 31.10.2008 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 =>

4. Date 31.10.2008 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 6:175-177 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?

5. Date 31.10.2008 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

6. Date 31.10.2008 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?

7. Date 31.10.2008 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