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

Applications in Process
11000MWe of approved applications:
– 7390 MWe CCGT
– 3690 MWe renewables
8000
7000
6000
5000
4000
3000
2000
1000
0
2006 2007 2008 Total
Approved applications
8000
6000
4000
2000
0
2006 2008
CCGT wind bio & other
CCGT wind bio & other
10000MWe of applications being processed
- 7500MWe CCGT
- 2500MWe renewables
Source: BERR

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
2005 - 27 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. 2006 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 2008 - 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
• www.ucl.ac.uk/cclp