Legal Aspects of Storing CO2 - Peace Palace Library · 2020-02-13 · frameworks. CO 2 storage demonstration projects, including Enhanced Oil Recovery (EOR) with CO 2 storage, are

LEGAL ASPECTS OF STORING CO2

INTERNATIONAL ENERGY AGENCY

LEGALASPECTS OF

STORING CO2



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 theOECD’s 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 world’s 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 Fédération, 75739 Paris Cedex 15, France.

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 atmospherewhile 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 problemsalone. 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 July2004. The event was jointly organised by the IEA's Working Party on Fossil Fuels and the CarbonSequestration 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 notfitted 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 Captureand Storage”, an extensive study on the technology's potential. “Legal Aspects of Storing CO2”paves the way for future work on creating and improving investment security in this key technology.

Claude MandilExecutive Director

FOREWORD 3

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. JacekPodkanski, 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 Pflüger, 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 theorganization 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: MondherBenHassine, Kamel Bennaceur, J. Michael Bewers, Richard Bradley, Frede Cappelen, René 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, NancyTurck, Geir Vollsæter, 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, René Coenen, Markde Figueiredo, David Irving, Barry Jones, Anhar Karimjee, Jostein Dahl-Karlsen, David Keith, ArthurLee, Cédric Philibert, Ray Purdy, Stuart Smith, Jolyon Thomson, Geir Vollsæter, 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

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Interpreting 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

HIGHLIGHTS

Modernising existing legal frameworks

� 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

� 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.

� 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

� 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 andthere 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

� 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

10 LEGAL ASPECTS OF STORING CO2

� 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.

� 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.

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

� 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.

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 andstorage (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:

� 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;

� Adopting an enabling legal and regulatory framework;

� Gaining public acceptance;

� 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 ParisWorkshop 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:

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

� a discussion on the international framework applicable to CCS (Part 2);

� a description of some national legal frameworks (Part 3);

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

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

INTRODUCTION 11

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

1. BACKGROUND INFORMATION

CCS and climate change

Fossil fuel combustion produces CO2, the main anthropogenic greenhouse gas which, if releasedinto 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 manyecosystems, 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 concentrationof CO2 and other greenhouse gases in the atmosphere and that emissions of CO2 will need to bereduced significantly below their current levels in order to stabilize the atmospheric concentrationof CO2 at a reasonable level.2

However, rapid change to non-fossil energy sources is unlikely given their cost, the disruption itwould cause to the energy supply infrastructure and the consequences it would have on theglobal economy.3

Fossil fuels will thus continue to provide a large proportion of the world's commercial energy forthe foreseeable future and the world needs a CO2 emissions reduction technology during its transitionto a fully non-fossil economy, which may take at least fifty years. CCS represents one of the bestoptions 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 beneeded because hydrogen will be produced mainly from fossil fuels.

The figure below presents an assessment of possible impact of carbon dioxide capture and storagetechnologies on CO2 emissions under the following scenarios:

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

� CO2 capture and storage technologies are available and could be deployed due to worldwideintroduction of relatively strong CO2 abatement policies (represented by a penalty US$50 perton of emitted CO2);

� 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 andenergy 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 CCStechnologies significantly increase the impact of CO2 incentives. The analysis reveals that forthe same CO2 abatement policies, annual emissions of CO2 in 2050 are 25% lower when CCStechnologies 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 approximately40% 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


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 20504G

t C

O2/y

r

70

50

30

40

20

10

0

60

CO2 incentives

introduced (USD 50/t),CCS technologiesavailable anddeployed

Business-as-usualscenario

CO2 incentives

introduced (USD 50/t),CCS technologiesnot available

2000

2010

2020

2030

2040

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 cementindustry) that amount, however, to less than four percent of the total CO2 emissions; the data do not include emissions due to deforestation.


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 mostimportant of these and their estimated storage potential are:

Sequestration Option Global Capacity

Oil and gas reservoirs 100 - 1,000 GtDeep Saline aquifers 100s - 10,000 GtCoal seams 10 - 100 Gt

Many uncertainties remain and capacity estimates and the associated methodologies usedby 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 amountof 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.

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

� 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.

� Disposal or 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.”

� Storage: storage has a temporary objective. CO2 is injected in the relevant formation with aview to be retrieved at a later stage, whether for future EOR activities or other.

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


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 involvedifferent 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 aclarification 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 difficulty lies with the injection andpost injection stages. Storage of injected CO2 occurs while injection of additional CO2 takes placein the same reservoir and until the reservoir is judged to be “full” for various subsurface technicalreasons (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 thatcapture of the CO2 is no longer necessary. Injection may thus take place over a period of severalyears 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 completelyseparate stage (the post-closure stage).

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 different 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 inhistory. Sam Holloway of the British Geologic Survey presented a paper at the October 2003 IPIECA Workshop on Carbon Dioxide Captureand 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 in1986 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.


The Weyburn Project

On 29th May 1999, PanCanadian Resources, a major Canadian oil company, broke ground atits EOR project site in southeastern Saskatchewan. This EOR project takes approximately 5000tons per day of CO2 from a coal gasification plant in North Dakota, USA, and use it torecover 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 000acres and the amount of oil in place was originally estimated at 1.3 billion barrels, with viscosity23-34o API. Use of primary production plus waterflood will eventually recover about 34% ofthe original oil in place. With EOR, this will be increased to almost 50% of the oil. The oil iscontained in carbonates at a depth of 1400 m. At this depth, miscibility can be achievedwith CO2, thereby improving oil production. Any CO2 produced with the oil will be capturedand reinjected. At the conclusion of the project, some 19 million tons of CO2 will have beensequestered in the reservoir.

This project represents a unique opportunity to monitor the storage of injected CO2, in adepleted 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 thePetroleum Technology Research Centre (PTRC) of the University of Saskatchewan with assistancefrom the IEA Greenhouse Gas R&D Programme. The monitoring programme includes all aspectsof the fate of the CO2 in the reservoir; in particular, its reactions with the formation andformation fluids, and its movement within the reservoir. This work could lead to predictionsabout what happens to CO2 in a carbonate reservoir and about optimizing CO2 storage inan 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 theNorwegian Sleipner West gas field in the North Sea, where the technical and economic viability ofthe 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 variouscountries 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, developand, as the case may be, promote CCS technologies and activities and advance the CCS legal andregulatory 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)

CO2 storage with monitoring research


The IEA is actively involved through:

� 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 industriesfrom many countries, with several linked objectives:

� to identify and evaluate technologies that could be used to reduce the emissions ofgreenhouse gases arising from the use of fossil fuels;

� to disseminate the results of those evaluations and

� to identify targets for research, development and demonstration, and promote theappropriate work.8 It was established in 1991 and since then, its main focus has beenon capture and storage of CO2. A number of other IEA Implementing Agreementscomplement 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 withhydrogen, advanced fuel cells and enhanced oil recovery.

� 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 fuelapplications. Its initiatives include communication activities (organization of conferences,publications), coordination of R&D work performed by the relevant Implementing Agreementsand cooperation with non-IEA member countries.

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


� its Secretariat, which has been actively working on carbon storage in the wider energy andclimate mitigation context. Carbon storage is included in the IEA Secretariat World EnergyOutlook for 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 (IEA2004) 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

2. THE INTERNATIONAL LEGAL FRAMEWORK 21

2. THE INTERNATIONAL LEGAL FRAMEWORK

The international legal framework is relevant primarily to offshore storage. Onshore storage issubject almost exclusively to national legal frameworks, although any activity by one State onits 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 ofthe Sea (UNCLOS), the marine environment protection framework and the climate changeframework. The latter two frameworks embody two of the main environmental objectives of theinternational community that have so far been pursued independently from one another despitesometimes overlapping scopes namely, stabilizing the atmospheric CO2 and protecting thehydrosphere 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 yetto deliver effective CO2 emission reduction obligations on contracting parties and incentives forCCS development.

How to combine the respective objectives of these frameworks in the face of technological changeand of the growing knowledge about climate change is one of the main challenges to the developmentof 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 Jurisdictions 1982 Yes

and Deep Ocean MineralResource 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 extendedthrough 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 onmost 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 UNCLOSrelevant to CCS are included in Annex I.


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 seasTerri

toria

l sea

200 milesExclusive economic zone

Deep seabed

12miles

12. Other notable regional agreements are outlined and discussed in Bewers, Review of International Conventions HavingImplications for the Storage of Carbon Dioxide in the Ocean and Beneath the Seabed, IEA Greenhouse Gas Research andDevelopment Programme, Report # PH4/16


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 Protocol adopted in 1997 andeffective 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 ofthe 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 ofHazardous Wastes and their Disposal may apply to CCS activities depending on the nature of theproject involved.13 These 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 LegalIssues, Tyndall Centre for Climate Change Research.

The relevance of the London Convention to carbon storage is limited as it only applies to storageconducted from aircraft and vessels and platforms in the water column. Consequently, it does notapply 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 activitiesin 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 subjectto debate and clarification. Some discussions on carbon storage were held within the LondonConvention a couple of years ago, but without definitive conclusions, including to the question ofwhether CO2 is an industrial waste or not. The Scientific Group established under the LondonConvention 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


The London Convention also requires Contracting Parties to be guided by a precautionary approachto environmental protection in the implementation of their obligations under the Convention.According to this approach, appropriate preventive measures must be taken when there is reasonto believe that substances or energy introduced in the marine environment are likely to causeharm even when there is no conclusive evidence to prove a causal relation between inputs andtheir 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 yetwhether storage with impermeable caps would be considered as more likely to cause harm to themarine environment.

No definitive legal position has been adopted on this issue, either by the Consultative Meeting ofContracting Parties, the International Court of Justice or any other international entity havingjurisdiction 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 Conventionconsidered the challenge of stabilizing greenhouse gas concentrations in the atmosphere andrecognized that CO2 capture and storage in geological structures might offer important possibilitiesfor 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 programmeand to focus initially on sequestration of CO2 in geological structures. Several activities were plannedfor the intersessional period to examine the legal, scientific and technical issues involved (…). The27th Consultative Meeting (24-28 October 2005) will review the progress and give guidance onwhat 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 allsources of pollution and take effective measures to prevent, reduce and where practicable eliminatepollution 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 Conventionas dumping applies to both:

� the deliberate disposal at sea (which includes both the water and the sea-bed and subsoilthereof) of wastes loaded on board a vessel, and

� 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 listdoes not specifically include CO2.

Sea dumping under the Protocol does not include pipeline discharges from land, operationaldischarges from vessels or offshore installations or placement for a purpose other than the meredisposal 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 EnvironmentDivision 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.


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. CO2 would also definitely fall within its scope because it applies to the introductionin 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.

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:

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

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

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

� Offshore activities:

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

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

� 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 ofCO2 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 CO2 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 areaother than for the purpose of offshore activities (“non-offshore installations”). This latter possibility raises a number of unansweredquestions: can an offshore installation become a non-offshore installation? Can a non-offshore installation be located on an offshoreinstallation? What is the status of a non offshore installation without a pipeline link to the land (e.g. an offshore power station)? Regardingthis latter question, the OSPAR Secretariat representative at the Paris Workshop recognized that there might be boundary problems betweenvessels, non-offshore installations (i.e., land-based sources) and offshore installations.


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 directly or 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.25 Two 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

� 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;

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

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

� 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?

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

� 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?

� Should CO2 be considered a waste?

� 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 theordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context includesany agreement made between all or some of the parties in connection with the conclusion of the treaty as well as any subsequent agreementbetween the parties, any subsequent practice in the application of the treaty or any relevant rules of international law applicable in therelations between the parties.

27. In its opinion in Botswana (2000) the International Court of Justice noted that as a supplementary basis for interpretation, the ViennaConvention on the Law of Treaties does not proscribe taking scientific developments into account.


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 maintainproject configurations that would be favourable under specific legal interpretations.

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 isgoverned 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.29 There 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 NGOsare suing the EPA on the ground that CO2 and other greenhouse gases are air pollutants subject to regulation under the Clean Air Act.


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 applyto certain carbon storage activities. Whether or not the substance being injected has a commercialvalue 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. Siteownership issues also fall under the jurisdiction of State laws, which vary considerably from oneState to another.

Given this institutional structure, regulating CCS in the United States will not be a “one stopshop”. Some powers might be vested with the Federal government, but others will be vestedwith the States.

Whichever mix is eventually chosen, there is already a substantial body of federal and statelaws relevant to CCS activities and thinking about how they apply to carbon capture and storagehas begun. Whether regulatory oversight will come from individual States, the Federal Governmentor a combination will depend largely on how existing federal laws are interpreted, including theClean Air Act. Should it be decided that federal laws do not apply, there maybe more room forStates to act.

The United Kingdom

There is a significant body of regulations applicable to on-shore CCS activities in the UnitedKingdom,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 Act andthe 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 intoconsideration capture and transport activities is not expected to raise particular problems. Injectionand 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 thatCO2 would be a waste for permanent storage (i.e. “disposal” in the classification contained inPart 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 deliveredCO2. If CO2 is a waste, its storage is governed by applicable EU regulations as transposed in theUK 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 theinternational frameworks described in Part II above as well as regulations specifically applicable to offshore activities under the jurisdiction ofthe Crown Estate.

The most important gaps identified were regarding the status of CCS with the market basedand regulatory framework to address CO2 abatement, in particular the emission trading system,and the long term monitoring and ownership issues associated thereto. Emissions data fromoffshore 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 existingframework 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 NagaokaCity, Niigata Prefecture, this project is operational since July 2003 and is expected to be completedin 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 CO2 iscarried 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, the Agricultural Land Law, the Water Control Pollution Law and 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 conductedunder existing laws because it is experimental and small in size. Additional regulation wouldhave 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 issuesare 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 maybe coming up in Alberta in the coming years. Although there are no incentives in the marketto encourage private operators to engage in long-term storage, the Canadian government isstrongly encouraging any CO2 EOR initiative as well as any longer term storage and monitoringinitiatives. A federal CO2 capture and storage incentive program and an Alberta royalty creditprogram 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)


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 CO2 sequestration projects in the world. The development willbe based on the Gorgon gas field which is one of the world's premier hydrocarbon resources. The gas field is situated 130 km off thenorth-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.

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 WasteMaterials (1999/31), the Environmental Impact Assessments Directive (85/337 as amended byDirective 97/11) and the Framework Directive on Water (2000/60/EG).34 These 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 forthe 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.37 The 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 apollutant as “the direct or indirect introduction, as a result of human activity, of substances or heat into the air, water or land which may beharmful to human health or the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems which resultin damage to material property, or which impair or interfere with amenities and other legitimate uses of the environment.” CO2 is not on theDirective's lists of pollutants or dangerous substances, but potential triggers include whether CO2 injection and storage has potential impactto ground and surface waters

35. 0.76 Øre 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 Snøhvit Field, the first offshore gas field found in theBarents 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 surfaceof 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 forinjection 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


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:

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

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

� 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.

4. BUILDING A LEGAL AND REGULATORYFRAMEWORK FOR CO2 STORAGE

A number of issues relevant to the development of a legal framework for CCS have been identifiedin the previous sections. The purpose of this section is to summarize the main legal and regulatoryissues distinguishing definitional and policy issues from process issues.

Definitional and policy issues

Balancing the various objectivesof the international communityCarbon capture and storage policies should be designed taking into consideration the priorityobjectives of the international community, including:� Environmental protection, biodiversity protection and climate change mitigation;� Sustainable economic development and poverty reduction;� Energy security for all nations.

Policy makers must engage in a comprehensive analytical exercise to combine these various objectivesin an optimum way, assessing the costs and benefits of each course of action (including maintainingthe status quo). In particular, the assessment of the costs and benefits of carbon capture and storageneeds to be done taking into consideration the prominent role that fossil fuels will continue toplay in the foreseeable CO2 emissions constrained future and how that situation will impact thevarious objectives identified above.

Is CO2 a waste?In most jurisdictions, waste classification triggers the application of a set of rules that have beendesigned for other substances and might therefore not be appropriate to CO2. There are at themoment many definitions and categories of waste in the various applicable instruments but thewaste classification always has a strong influence on public acceptability. A comprehensive approachis necessary to determine whether CO2 should be classified as a waste and, if the answer is in theaffirmative, which type of waste best reflects the characteristics of CO2. The degree of purity of thestored CO2 - in particular the concentration of contaminants of public and policy concern - is likelyto have a strong influence on such classification.

Storage site selection and ownershipOne of the main gaps identified is the establishment of criteria for site selection. Such criteria wouldhave to include specification of a site's storage potential, its likely integrity relative to leakage andits ability to store CO2 over long time periods without incurring reservoir damage and deterioration.

The ownership rights framework varies from one country to another. In some countries, like theUnited States, the land including its sub-soil at any depth can be privately owned. In others, suchas the United Kingdom, geological resources remain the ownership of the Crown, which grants

4. BUILDING A LEGAL AND REGULATORY FRAMEWORK FOR CO2 STORAGE 37


licenses to exploit them. Whatever the specific features of any national property framework, it isimportant for CCS development that rights to the storage site (whether ownership, lease or others- including access rights) are clearly defined and predictable, taking into consideration the longterm aspects of carbon storage.

Monitoring Establishing an adequate monitoring system is critical to meeting the challenges of carbon storage.

Extensive monitoring initiatives such as the Weyburn project described above have been playing acritical role for learning about carbon storage. They improve the understanding of what baselinedata is required and how monitoring should be conducted. According to a speaker from Canadaat the Paris Workshop, great progress have been made in Weyburn with regard to qualitative data,but more work needs to be done on quantitative aspects.

Additional monitoring experiences are required to improve scientific knowledge of carbon storageand, on that basis, determine the level of monitoring that will be required from commercial operators.Some of the main issues that will have to be addressed are the level of monitoring that will berequired over the long-term, record keeping requirements, the identity of the entity in charge of suchmonitoring and the responsibility for the costs thereof.

Long term liabilityThe long-term liability framework will be one of the keystones of the success of any CCS legal andregulatory framework. It will impact the cost of carbon storage activities and will be critical for thepublic acceptance of the technology.

Operational liability issues for transport and injection of carbon are relatively similar to otherissues in the oil and gas industry and should therefore not raise particular problems.

In situ liability, which refers to liability associated with leakage and migration of carbon dioxidefrom a geologic formation, and resulting public health impact and damage to environment andecosystems, is challenging given the time frame of carbon storage. Given this specificity, anyframework should ensure the continuous existence of a liable entity. Speakers at the Paris Workshophave expressed different preferences regarding whether long-term liability should ultimately restwith a public or a private entity.

Other challenges that need to be addressed include whether guarantees (insurance, special fund,financial guarantees) and caps will need to be put in place to cover potential liabilities. Someforms of short-term liability exemptions or limitations might also be necessary incentives to promotethe development of demonstration projects.

Precautionary approach/principleAdditional work needs to be done on the application of the precautionary approach/principle to carboncapture and storage. The likelihood test contained in some instruments39 will have to be applied inlight of the growing scientific data available. The risks associated with the status quo (not capturingand storing CO2 emissions), even when using more carbon efficient technologies, should be taken intoconsideration when analyzing countries' or actors' obligations under various instruments.

39. This test usually asks whether it is more likely or not that some consequences will occur.

CCS as climate mitigation technology

One of the most common gaps identified in international and national frameworks is the need tocreate a level playing field between carbon capture and storage and other climate change mitigationoptions. This would mean allowing it explicitly in various kinds of mitigation mechanisms andreaching an agreement on CO2 accounting procedures. As a result, CCS technologies would competewith other mitigation options contributing to the least-cost solution to the greenhouse gas problem.

Process issues

Need for additional empirical data

The need for additional empirical information about carbon storage was one of the most recurringissues throughout the Paris Workshop. The lack of quality data limits the ability of stakeholders tocarry out their risk analysis and prevents policy makers from deciding on many of the issues raisedin this paper.

Gaining additional information is thus one of the key priorities for moving forward in establishinga legal and regulatory framework for CCS.

What type of framework?

The Paris Workshop revealed a number of possible ways of thinking about how to build a legaland regulatory framework for CCS. The diversity in countries' institutional structures and policyprocesses prevents the adoption of a one-size-fits-all recommended framework. The analyticalcategories discussed below are not mutually exclusive and are only provided here to frame the policydebate:

� Existing framework v. new framework: many issues raised by CCS are common to activities inthe oil and gas industry. A lot of CCS technologies are already well known (particularly thoserelated to capture, transport and injection of CO2) and some countries already have in place alegal framework that appropriately regulates them. Many of these countries have indicatedthat these frameworks could easily be adapted to cover issues specific to carbon storage withoutthe need to create a new framework exclusively for CCS. Time efficiency and simplicity havebeen identified as some of the advantages of using existing frameworks. However, the use ofexisting legislation should be accompanied by an adequate consultation and informationcampaign to avoid potential lack of transparency associated with using existing legal frameworks.

� National v. international framework: policy makers need obviously be concerned both by thenational and the international framework applicable to carbon storage. However, the legal andregulatory process will be mostly national and/or provincial/state level for countriescontemplating mostly onshore storage, and both international and national for thosecontemplating offshore storage.

� Demonstration v. general approach: given the inadequacy of empirical knowledge about carbonstorage and the need for more demonstration projects, countries may wish to put in place aframework to permit demonstration projects in a first stage. A more general framework couldthen be established in a second stage on the basis of the progress achieved with thesedemonstration projects.

4. BUILDING A LEGAL AND REGULATORY FRAMEWORK FOR CO2 STORAGE 39


� General v. activity-specific framework: given some of the uncertainties in the internationallegal framework applicable to offshore storage of carbon and taking into consideration thelack of empirical knowledge regarding some CCS activities, some policy makers have indicateda preference for adopting an activity-specific framework (e.g., applicable to some demonstrationprojects, EOR projects, onshore projects or any particular technology or activity) rather than ageneral framework intended to govern all issues related to carbon storage. An activity-specificapproach might thus allow policy makers to move forward efficiently in some areas while notjeopardizing opportunities for future legal and regulatory developments in other domains.

5. PRIORITY ISSUES FOR FUTURE WORK

The joint IEA/CSLF workshop held in Paris on July 12-13, 2004 represents an important step inimproving the understanding of the legal aspects of storing carbon dioxide. A number of legal andregulatory gaps and uncertainties have been identified and the participants have expressed theirdesire for additional cooperation.

There is an urgent need to increase the quantity and pace of work on CCS given the trends andconsequences of climate change. However, further investment in carbon capture and storage -even for demonstration projects - is currently impeded by the absence of an enabling legal andregulatory framework and low public awareness relative to the stakes and pace of climate change.

The first challenge facing CCS development today is to carry out the scientific trials, demonstrationand monitoring that are necessary for further legal and regulatory development and for gainingpublic acceptance.

Five priority areas of work were identified at the Paris Workshop:

� Increase the number of CO2 storage demonstration projects, including CO2 EOR, focusingon long-term storage and monitoring aspects in order to establish criteria for optimal siting,verify the results and assess environmental impact of carbon storage, establish monitoringbenchmarks and risk management practices. Increase public-private partnerships to achievethese goals.

� In the short-term, governments should ensure that there is an appropriate national legaland regulatory framework for more storage demonstration projects. In the interest of time,and given the diversity of institutional setups and policy processes between States, workingat the national and/or provincial/state level using existing legal frameworks might be thepreferred route. Longer term national frameworks should be formulated on the basis ofadequate empirical knowledge about the conditions and risks of long-term storage.

� Contracting parties to international instruments should take a proactive approach toclarifying the legal status of carbon storage in the marine environment protectioninstruments, taking into consideration not only their marine environment protection objectives,but also their objectives regarding climate change mitigation, energy security, sustainableeconomic development and poverty reduction.

� Governments should create a level-playing field for CCS with other climate changemitigation technologies in the various climate change mitigation instruments, includingmarket-oriented emission trading schemes.

� Both the public and private sectors should increase public awareness and work on gainingpublic acceptance of CCS by increasing the transparency of their activities and makinginformation about on-going projects available to the public.

5. PRIORITY ISSUES FOR FUTURE WORK 41

ANNEX I - SELECTION OF RELEVANTPROVISIONS UNDER UNCLOS(concluded in 1982, in force since 1994)

PART I INTRODUCTION

Article 1Use of terms and scope1. For the purposes of this Convention:

(1) "Area" means the seabed and ocean floor and subsoil thereof, beyond the limits ofnational jurisdiction;

(2) "Authority" means the International Seabed Authority;

(3) "activities in the Area" means all activities of exploration for, and exploitation of, theresources of the Area;

(4) "pollution of the marine environment" means the introduction by man, directly or indirectly,of substances or energy into the marine environment, including estuaries, which results oris likely to result in such deleterious effects as harm to living resources and marine life, hazardsto human health, hindrance to marine activities, including fishing and other legitimate usesof the sea, impairment of quality for use of sea water and reduction of amenities;

(5) (a) "dumping" means:

(i) any deliberate disposal of wastes or other matter from vessels, aircraft, platformsor other man-made structures at sea;

(ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structuresat sea;

(b) "dumping" does not include:

(i) the disposal of wastes or other matter incidental to, or derived from the normaloperations of vessels, aircraft, platforms or other man-made structures at sea andtheir equipment, other than wastes or other matter transported by or to vessels,aircraft, platforms or other man-made structures at sea, operating for the purposeof disposal of such matter or derived from the treatment of such wastes or othermatter on such vessels, aircraft, platforms or structures;

(ii) placement of matter for a purpose other than the mere disposal thereof, providedthat such placement is not contrary to the aims of this Convention.

SECTION 2. PRINCIPLES GOVERNING THE AREA

Article 136 Common heritage of mankindThe Area and its resources are the common heritage of mankind.

Article 145 Protection of the marine environmentNecessary measures shall be taken in accordance with this Convention with respect to activities inthe Area to ensure effective protection for the marine environment from harmful effects whichmay arise from such activities. To this end the Authority shall adopt appropriate rules, regulationsand procedures for inter alia:

ANNEX 1. SELECTION OF RELEVANT PROVISIONS UNDER UNCLOS 43


(a) the prevention, reduction and control of pollution and other hazards to the marineenvironment, including the coastline, and of interference with the ecological balance of themarine environment, particular attention being paid to the need for protection from harmfuleffects of such activities as drilling, dredging, excavation, disposal of waste, constructionand operation or maintenance of installations, pipelines and other devices related to suchactivities;

(b) the protection and conservation of the natural resources of the Area and the preventionof damage to the flora and fauna of the marine environment.

PART XII - PROTECTION AND PRESERVATION OFTHE MARINE ENVIRONMENT

SECTION 1. GENERAL PROVISIONS

Article 192 General obligationStates have the obligation to protect and preserve the marine environment.

Article 193 Sovereign right of States to exploit their natural resourcesStates have the sovereign right to exploit their natural resources pursuant to their environmentalpolicies and in accordance with their duty to protect and preserve the marine environment.

Article 194 Measures to prevent, reduce and control pollutionof the marine environment1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention

that are necessary to prevent, reduce and control pollution of the marine environment from anysource, using for this purpose the best practicable means at their disposal and in accordancewith their capabilities, and they shall endeavor to harmonize their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their jurisdiction orcontrol are so conducted as not to cause damage by pollution to other States and theirenvironment, and that pollution arising from incidents or activities under their jurisdiction orcontrol does not spread beyond the areas where they exercise sovereign rights in accordancewith this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marineenvironment. These measures shall include, inter alia, those designed to minimize to the fullestpossible extent:

(a) the release of toxic, harmful or noxious substances, especially those which are persistent,from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing withemergencies, ensuring the safety of operations at sea, preventing intentional andunintentional discharges, and regulating the design, construction, equipment, operationand manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation of the naturalresources of the seabed and subsoil, in particular measures for preventing accidents anddealing with emergencies, ensuring the safety of operations at sea, and regulating thedesign, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, inparticular measures for preventing accidents and dealing with emergencies, ensuring thesafety of operations at sea, and regulating the design, construction, equipment, operationand manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, Statesshall refrain from unjustifiable interference with activities carried out by other States in theexercise of their rights and in pursuance of their duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those necessary to protect andpreserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangeredspecies and other forms of marine life.

Article 195 Duty not to transfer damage or hazards or transform one type ofpollution into anotherIn taking measures to prevent, reduce and control pollution of the marine environment, Statesshall act so as not to transfer, directly or indirectly, damage or hazards from one area to anotheror transform one type of pollution into another.

SECTION 2. GLOBAL AND REGIONAL COOPERATION

Article 197 Cooperation on a global or regional basisStates shall cooperate on a global basis and, as appropriate, on a regional basis, directly or throughcompetent international organizations, in formulating and elaborating international rules, standardsand recommended practices and procedures consistent with this Convention, for the protectionand preservation of the marine environment, taking into account characteristic regional features.

SECTION 5. INTERNATIONAL RULES AND NATIONALLEGISLATION TO PREVENT, REDUCE AND CONTROLPOLLUTION OF THE MARINE ENVIRONMENT

Article 207 Pollution from land-based sources1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine

environment from land-based sources, including rivers, estuaries, pipelines and outfallstructures, taking into account internationally agreed rules, standards and recommendedpractices and procedures.

2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3. States shall endeavor to harmonize their policies in this connection at the appropriate regionallevel.

4. States, acting especially through competent international organizations or diplomatic conference,shall endeavor to establish global and regional rules, standards and recommended practicesand procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity ofdeveloping States and their need for economic development. Such rules, standards andrecommended practices and procedures shall be re-examined from time to time as necessary.

5. Laws, regulations, measures, rules, standards and recommended practices and procedures referredto in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fullest extentpossible, the release of toxic, harmful or noxious substances, especially those which are persistent,into the marine environment.



Article 208 Pollution from seabed activities subject to national jurisdiction1 Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the

marine environment arising from or in connection with seabed activities subject to theirjurisdiction and from artificial islands, installations and structures under their jurisdiction,pursuant to articles 60 and 80.

2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3. Such laws, regulations and measures shall be no less effective than international rules, standardsand recommended practices and procedures.

4. States shall endeavor to harmonize their policies in this connection at the appropriateregional level.

5. States, acting especially through competent international organizations or diplomatic conference,shall establish global and regional rules, standards and recommended practices and proceduresto prevent, reduce and control pollution of the marine environment referred to in paragraph l.Such rules, standards and recommended practices and procedures shall be re-examined fromtime to time as necessary.

Article 209 Pollution from activities in the Area1. International rules, regulations and procedures shall be established in accordance with Part XI

to prevent, reduce and control pollution of the marine environment from activities in the Area.Such rules, regulations and procedures shall be re-examined from time to time as necessary.

2. Subject to the relevant provisions of this section, States shall adopt laws and regulations toprevent, reduce and control pollution of the marine environment from activities in the Areaundertaken by vessels, installations, structures and other devices flying their flag or of theirregistry or operating under their authority, as the case may be. The requirements of such lawsand regulations shall be no less effective than the international rules, regulations and proceduresreferred to in paragraph 1.

Article 210 Pollution by dumping1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine

environment by dumping.

2. States shall take other measures as may be necessary to prevent, reduce and control suchpollution.

3. Such laws, regulations and measures shall ensure that dumping is not carried out without thepermission of the competent authorities of States.

4. States, acting especially through competent international organizations or diplomatic conference,shall endeavor to establish global and regional rules, standards and recommended practicesand procedures to prevent, reduce and control such pollution. Such rules, standards andrecommended practices and procedures shall be re-examined from time to time as necessary.

5. Dumping within the territorial sea and the exclusive economic zone or onto the continentalshelf shall not be carried out without the express prior approval of the coastal State, whichhas the right to permit, regulate and control such dumping after due consideration of thematter with other States which by reason of their geographical situation may be adverselyaffected thereby.

6. National laws, regulations and measures shall be no less effective in preventing, reducing andcontrolling such pollution than the global rules and standards.

Article 211 Pollution from vessels1. States, acting through the competent international organization or general diplomatic conference,

shall establish international rules and standards to prevent, reduce and control pollution ofthe marine environment from vessels and promote the adoption, in the same manner, whereverappropriate, of routing systems designed to minimize the threat of accidents which might causepollution of the marine environment, including the coastline, and pollution damage to therelated interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

2. States shall adopt laws and regulations for the prevention, reduction and control of pollutionof the marine environment from vessels flying their flag or of their registry. Such laws andregulations shall at least have the same effect as that of generally accepted internationalrules and standards established through the competent international organization or generaldiplomatic conference.

3. States which establish particular requirements for the prevention, reduction and control ofpollution of the marine environment as a condition for the entry of foreign vessels into theirports or internal waters or for a call at their off-shore terminals shall give due publicity to suchrequirements and shall communicate them to the competent international organization.

Whenever such requirements are established in identical form by two or more coastal Statesin an endeavor to harmonize policy, the communication shall indicate which States areparticipating in such cooperative arrangements. Every State shall require the master of avessel flying its flag or of its registry, when navigating within the territorial sea of a Stateparticipating in such cooperative arrangements, to furnish, upon the request of that State,information as to whether it is proceeding to a State of the same region participating in suchcooperative arrangements and, if so, to indicate whether it complies with the port entryrequirements of that State. This article is without prejudice to the continued exercise by avessel of its right of innocent passage or to the application of article 25, paragraph 2.

4. Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt lawsand regulations for the prevention, reduction and control of marine pollution from foreignvessels, including vessels exercising the right of innocent passage. Such laws and regulationsshall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels.

5. Coastal States, for the purpose of enforcement as provided for in section 6, may in respect oftheir exclusive economic zones adopt laws and regulations for the prevention, reduction andcontrol of pollution from vessel conforming to and giving effect to generally accepted internationalrules and standards established through the competent international organization or generaldiplomatic conference.

6. (a) Where the international rules and standards referred to in paragraph 1 are inadequate tomeet special circumstances and coastal States have reasonable grounds for believing thata particular, clearly defined area of their respective exclusive economic zones is an areawhere the adoption of special mandatory measures for the prevention of pollution fromvessels is required for recognized technical reasons in relation to its oceanographical andecological conditions, as well as its utilization or the protection of its resources and theparticular character of its traffic, the coastal States, after appropriate consultations throughthe competent international organization with any other States concerned, may, for thatarea, direct a communication to that organization, submitting scientific and technicalevidence in support and information on necessary reception facilities. Within 12 monthsafter receiving such a communication, the organization shall determine whether theconditions in that area correspond to the requirements set out above. If the organization



so determines, the coastal States may, for that area, adopt laws and regulations for theprevention, reduction and control of pollution from vessels implementing such internationalrules and standards or navigational practices as are made applicable, through theorganization, for special areas. These laws and regulations shall not become applicable toforeign vessels until 15 months after the submission of the communication to theorganization.

(b) The coastal States shall publish the limits of any such particular, clearly defined area.

(c) If the coastal States intend to adopt additional laws and regulations for the samearea for the prevention, reduction and control of pollution from vessels, they shall, whensubmitting the aforesaid communication, at the same time notify the organizationthereof. Such additional laws and regulations may relate to discharges or navigationalpractices but shall not require foreign vessels to observe design, construction, manningor equipment standards other than generally accepted international rules and standards;they shall become applicable to foreign vessels 15 months after the submission of thecommunication to the organization, provided that the organization agrees within 12months after the submission of the communication.

7. The international rules and standards referred to in this article should include inter alia thoserelating to prompt notification to coastal States, whose coastline or related interests may beaffected by incidents, including maritime casualties, which involve discharges or probabilityof discharges.

Article 212 Pollution from or through the atmosphere1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine

environment from or through the atmosphere, applicable to the air space under their sovereigntyand to vessels flying their flag or vessels or aircraft of their registry, taking into accountinternationally agreed rules, standards and recommended practices and procedures and thesafety of air navigation.

2. States shall take other measures as may be necessary to prevent, reduce and control suchpollution.

3. States, acting especially through competent international organizations or diplomatic conference,shall endeavor to establish global and regional rules, standards and recommended practicesand procedures to prevent, reduce and control such pollution.

SECTION 11. OBLIGATIONS UNDER OTHER CONVENTIONSON THE PROTECTION AND PRESERVATION OFTHE MARINE ENVIRONMENT

Article 237 Obligations under other conventions on the protection andpreservation of the marine environment1. The provisions of this Part are without prejudice to the specific obligations assumed by States

under special conventions and agreements concluded previously which relate to the protectionand preservation of the marine environment and to agreements which may be concluded infurtherance of the general principles set forth in this Convention.

2. Specific obligations assumed by States under special conventions, with respect to the protectionand preservation of the marine environment, should be carried out in a manner consistentwith the general principles and objectives of this Convention.

ANNEX 2. SELECTION OF RELEVANT PROVISIONS UNDER THE UNFCCC 49

ANNEX II - SELECTION OF RELEVANTPROVISIONS UNDER THE UNFCCC(concluded in 1992, in force since 1994)

Article 1 Definitions For the purposes of this Convention:[…]3. "Climate system" means the totality of the atmosphere, hydrosphere, biosphere and geosphere

and their interactions.[…]

7. "Reservoir" means a component or components of the climate system where a greenhousegas or a precursor of a greenhouse gas is stored.

8. "Sink" means any process, activity or mechanism which removes a greenhouse gas, an aerosolor a precursor of a greenhouse gas from the atmosphere.

Article 2 ObjectiveThe ultimate objective of this Convention and any related legal instruments that the Conferenceof the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention,stabilization of greenhouse gas concentrations in the atmosphere at a level that would preventdangerous anthropogenic interference with the climate system. Such a level should be achievedwithin a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensurethat food production is not threatened and to enable economic development to proceed in asustainable manner.

Article 3 PrinciplesIn their actions to achieve the objective of the Convention and to implement its provisions, theParties shall be guided, inter alia, by the following:[…]3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes

of climate change and mitigate its adverse effects. Where there are threats of serious or irreversibledamage, lack of full scientific certainty should not be used as a reason for postponing suchmeasures, taking into account that policies and measures to deal with climate change shouldbe cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this,such policies and measures should take into account different socio-economic contexts, becomprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases andadaptation, and comprise all economic sectors. Efforts to address climate change may be carriedout cooperatively by interested Parties.

[…]

Article 4 Commitments1. All Parties, taking into account their common but differentiated responsibilities and their specific

national and regional development priorities, objectives and circumstances, shall:

(a) Develop, periodically update, publish and make available to the Conference of the Parties,in accordance with Article 12, national inventories of anthropogenic emissions by sourcesand removals by sinks of all greenhouse gases not controlled by the Montreal Protocol,using comparable methodologies to be agreed upon by the Conference of the Parties;


(b) Formulate, implement, publish and regularly update national and, where appropriate,regional programmes containing measures to mitigate climate change by addressinganthropogenic emissions by sources and removals by sinks of all greenhouse gases notcontrolled by the Montreal Protocol, and measures to facilitate adequate adaptation toclimate change;

[…]

(d) Promote sustainable management, and promote and cooperate in the conservation andenhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlledby the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial,coastal and marine ecosystems;

[…]

2. The developed country Parties and other Parties included in Annex I commit themselvesspecifically as provided for in the following:

(a) Each of these Parties shall adopt national1 policies and take corresponding measures onthe mitigation of climate change, by limiting its anthropogenic emissions of greenhousegases and protecting and enhancing its greenhouse gas sinks and reservoirs […].

ANNEX III - SELECTION OF RELEVANTPROVISIONS UNDER THE KYOTO PROTOCOL(concluded in 1997, in force since February 2005)

[…]

Article 21. Each Party included in Annex I, in achieving its quantified emission limitation and reduction

commitments under Article 3, in order to promote sustainable development, shall:

(a) Implement and/or further elaborate policies and measures in accordance with its nationalcircumstances, such as:

(i) Enhancement of energy efficiency in relevant sectors of the national economy;

(ii) Protection and enhancement of sinks and reservoirs of greenhouse gases not controlledby the Montreal Protocol, taking into account its commitments under relevantinternational environmental agreements; promotion of sustainable forest managementpractices, afforestation and reforestation;

(iii) Promotion of sustainable forms of agriculture in light of climate change considerations;

(iv) Research on, and promotion, development and increased use of, new and renewableforms of energy, of carbon dioxide sequestration technologies and of advanced andinnovative environmentally sound technologies;

(v) Progressive reduction or phasing out of market imperfections, fiscal incentives, taxand duty exemptions and subsidies in all greenhouse gas emitting sectors that runcounter to the objective of the Convention and application of market instruments;

(vi) Encouragement of appropriate reforms in relevant sectors aimed at promoting policiesand measures which limit or reduce emissions of greenhouse gases not controlled bythe Montreal Protocol;

(vii) Measures to limit and/or reduce emissions of greenhouse gases not controlled bythe Montreal Protocol in the transport sector;

(viii) Limitation and/or reduction of methane emissions through recovery and use inwaste management, as well as in the production, transport and distribution of energy;

[…]

Article 31. The Parties included in Annex I shall, individually or jointly, ensure that their aggregate

anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex Ado not exceed their assigned amounts, calculated pursuant to their quantified emission limitationand reduction commitments inscribed in Annex B and in accordance with the provisions of thisArticle, with a view to reducing their overall emissions of such gases by at least 5 per cent below1990 levels in the commitment period 2008 to 2012.

2. Each Party included in Annex I shall, by 2005, have made demonstrable progress in achievingits commitments under this Protocol.

3. The net changes in greenhouse gas emissions by sources and removals by sinks resulting fromdirect human-induced land-use change and forestry activities, limited to afforestation,reforestation and deforestation since 1990, measured as verifiable changes in carbon stocksin each commitment period, shall be used to meet the commitments under this Article of each

ANNEX 3. SELECTION OF RELEVANT PROVISIONS UNDER THE KYOTO PROTOCOL 51


Party included in Annex I. The greenhouse gas emissions by sources and removals by sinksassociated with those activities shall be reported in a transparent and verifiable manner andreviewed in accordance with Articles 7 and 8.

4. Prior to the first session of the Conference of the Parties serving as the meeting of the Partiesto this Protocol, each Party included in Annex I shall provide, for consideration by the SubsidiaryBody for Scientific and Technological Advice, data to establish its level of carbon stocks in 1990and to enable an estimate to be made of its changes in carbon stocks in subsequent years.The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at itsfirst session or as soon as practicable thereafter, decide upon modalities, rules and guidelinesas to how, and which, additional human-induced activities related to changes in greenhousegas emissions by sources and removals by sinks in the agricultural soils and the land-use changeand forestry categories shall be added to, or subtracted from, the assigned amounts for Partiesincluded in Annex I, taking into account uncertainties, transparency in reporting, verifiability,the methodological work of the Intergovernmental Panel on Climate Change, the advice providedby the Subsidiary Body for Scientific and Technological Advice in accordance with Article 5and the decisions of the Conference of the Parties. Such a decision shall apply in the secondand subsequent commitment periods. A Party may choose to apply such a decision on theseadditional human-induced activities for its first commitment period, provided that these activitieshave taken place since 1990.

[…]

Article 51. Each Party included in Annex I shall have in place, no later than one year prior to the start of

the first commitment period, a national system for the estimation of anthropogenic emissionsby sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol.Guidelines for such national systems, which shall incorporate the methodologies specified inparagraph 2 below, shall be decided upon by the Conference of the Parties serving as themeeting of the Parties to this Protocol at its first session.

2. G-Methodologies for estimating anthropogenic emissions by sources and removals by sinks ofall greenhouse gases not controlled by the Montreal Protocol shall be those accepted by theIntergovernmental Panel on Climate Change and agreed upon by the Conference of the Partiesat its third session. Where such methodologies are not used, appropriate adjustments shall beapplied according to methodologies agreed upon by the Conference of the Parties serving asthe meeting of the Parties to this Protocol at its first session. Based on the work of, inter alia,the Intergovernmental Panel on Climate Change and advice provided by the Subsidiary Bodyfor Scientific and Technological Advice, the Conference of the Parties serving as the meetingof the Parties to this Protocol shall regularly review and, as appropriate, revise such methodologiesand adjustments, taking fully into account any relevant decisions by the Conference of theParties. Any revision to methodologies or adjustments shall be used only for the purposes ofascertaining compliance with commitments under Article 3 in respect of any commitment periodadopted subsequent to that revision.

[…]

ANNEX IV - SELECTION OFRELEVANT PROVISIONS UNDER THELONDON CONVENTION(concluded in 1972, in force since 1975)

Article IContracting Parties shall individually and collectively promote the effective control of all sourcesof pollution of the marine environment, and pledge themselves especially to take all practicablesteps to prevent the pollution of the sea by the dumping of waste and other matter that is liableto create hazards to human health, to harm living resources and marine life, to damage amenitiesor to interfere with other legitimate uses of the sea.

Article IIContracting Parties shall, as provided for in the following articles, take effective measures individually,according to their scientific, technical and economic capabilities, and collectively, to prevent marinepollution caused by dumping and shall harmonize their policies in this regard.

Article IIIFor the purposes of this Convention:

1 (a) "Dumping" means:

(i) any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platformsor other man-made structures at sea;

(ii) any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structuresat sea.

(b) "Dumping" does not include:

(i) the disposal at sea of wastes or other matter incidental to, or derived from the normaloperations of vessels, aircraft, platforms or other man-made structures at sea and theirequipment, other than wastes or other matter transported by or to vessels, aircraft,platforms or other man-made structures at sea, operating for the purpose of disposalof such matter or derived from the treatment of such wastes or other matter on suchvessels, aircraft, platforms or structures;

(ii) placement of matter for a purpose other than the mere disposal thereof, provided thatsuch placement is not contrary to the aims of this Convention.

(c) The disposal of wastes or other matter directly arising from, or related to the exploration,exploitation and associated off-shore processing of sea-bed mineral resources will not becovered by the provisions of this Convention.

[…]

3 "Sea" means all marine waters other than the internal waters of States.

4 "Wastes or other matter" means material and substance of any kind, form or description.

[…]

Article IV1 In accordance with the provisions of this Convention Contracting Parties shall prohibit the

dumping of any wastes or other matter in whatever form or condition except as otherwisespecified below:

(a) the dumping of wastes or other matter listed in Annex I is prohibited;

ANNEX 4. SELECTION OF RELEVANT PROVISIONS UNDER THE LONDON CONVENTION 53


(b) the dumping of wastes or other matter listed in Annex II requires a prior special permit;

(c) the dumping of all other wastes or matter requires a prior general permit.

[…]

Article VIIIIn order to further the objectives of this Convention, the Contracting Parties with common intereststo protect in the marine environment in a given geographical area shall endeavor, taking intoaccount characteristic regional features, to enter into regional agreements consistent with thisConvention for the prevention of pollution, especially by dumping. The Contracting Parties to thepresent Convention shall endeavor to act consistently with the objectives and provisions of suchregional agreements, which shall be notified to them by the Organization. Contracting Partiesshall seek to co-operate with the Parties to regional agreements in order to develop harmonizedprocedures to be followed by Contracting Parties to the different conventions concerned. Specialattention shall be given to co-operation in the field of monitoring and scientific research.

[…]

ANNEX I TO THE LONDON CONVENTION[…]

11 Industrial waste as from 1 January 1996.

For the purposes of this Annex:

"Industrial waste" means waste materials generated by manufacturing or processing operationsand does not apply to:

( a) dredged material;

(b) sewage sludge;

(c) fish waste, or organic materials resulting from industrial fish processing operations;

(d) vessels and platforms or other man-made structures at sea, provided that material capableof creating floating debris or otherwise contributing to pollution of the marine environmenthas been removed to the maximum extent;

(e) uncontaminated inert geological materials the chemical constituents of which are unlikelyto be released into the marine environment;

(f) uncontaminated organic materials of natural origin.

[…]

ANNEX V - SELECTION OFRELEVANT PROVISIONS UNDERTHE LONDON PROTOCOL(concluded in 1996, not in force yet)

Article 1 DefinitionsFor the purposes of this Protocol:

[…]

4 .1 "Dumping" means:

.1 any deliberate disposal into the sea of wastes or other matter from vessels, aircraft,platforms or other man-made structures at sea;

.2 any deliberate disposal into the sea of vessels, aircraft, platforms or other man-madestructures at sea;

.3 any storage of wastes or other matter in the seabed and the subsoil thereof from vessels,aircraft, platforms or other man-made structures at sea; and

.4 any abandonment or toppling at site of platforms or other man-made structures atsea, for the sole purpose of deliberate disposal.

.2 "Dumping" does not include:

.1 the disposal into the sea of wastes or other matter incidental to, or derived from thenormal operations of vessels, aircraft, platforms or other man-made structures at seaand their equipment, other than wastes or other matter transported by or to vessels,aircraft, platforms or other man-made structures at sea, operating for the purpose ofdisposal of such matter or derived from the treatment of such wastes or other matteron such vessels, aircraft, platforms or other man-made structures;

.2 placement of matter for a purpose other than the mere disposal thereof, provided thatsuch placement is not contrary to the aims of this Protocol; and

.3 notwithstanding paragraph 4.1.4, abandonment in the sea of matter (e.g., cables,pipelines and marine research devices) placed for a purpose other than the mere disposalthereof.

.3 The disposal or storage of wastes or other matter directly arising from, or related to theexploration, exploitation and associated off-shore processing of seabed mineral resourcesis not covered by the provisions of this Protocol.

[…]

7 "Sea" means all marine waters other than the internal waters of States, as well as the seabedand the subsoil thereof; it does not include sub-seabed repositories accessed only from land.

8 "Wastes or other matter" means material and substance of any kind, form or description.

[…]

10 "Pollution" means the introduction, directly or indirectly, by human activity, of wastes or othermatter into the sea which results or is likely to result in such deleterious effects as harm to livingresources and marine ecosystems, hazards to human health, hindrance to marine activities,including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities.

ANNEX 5. SELECTION OF RELEVANT PROVISIONS UNDER THE LONDON PROTOCOL 55


Article 2 ObjectivesContracting Parties shall individually and collectively protect and preserve the marine environmentfrom all sources of pollution and take effective measures, according to their scientific, technicaland economic capabilities, to prevent, reduce and where practicable eliminate pollution caused bydumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonizetheir policies in this regard.

Article 3 General Obligations1 In implementing this Protocol, Contracting Parties shall apply a precautionary approach to

environmental protection from dumping of wastes or other matter whereby appropriatepreventative measures are taken when there is reason to believe that wastes or other matterintroduced into the marine environment are likely to cause harm even when there is no conclusiveevidence to prove a causal relation between inputs and their effects.

2 Taking into account the approach that the polluter should, in principle, bear the cost of pollution,each Contracting Party shall endeavor to promote practices whereby those it has authorizedto engage in dumping or incineration at sea bear the cost of meeting the pollution preventionand control requirements for the authorized activities, having due regard to the public interest.

3 In implementing the provisions of this Protocol, Contracting Parties shall act so as not to transfer,directly or indirectly, damage or likelihood of damage from one part of the environment toanother or transform one type of pollution into another.

[…]

Article 4 Dumping of Wastes or Other Matter1 .1 Contracting Parties shall prohibit the dumping of any wastes or other matter with the

exception of those listed in Annex 1..2 The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting

Parties shall adopt administrative or legislative measures to ensure that issuance of permitsand permit conditions comply with provisions of Annex 2. Particular attention shall bepaid to opportunities to avoid dumping in favor of environmentally preferable alternatives.

[…]

Article 12 Regional Co-operationIn order to further the objectives of this Protocol, Contracting Parties with common interests toprotect the marine environment in a given geographical area shall endeavor, taking into accountcharacteristic regional features, to enhance regional co operation including the conclusion ofregional agreements consistent with this Protocol for the prevention, reduction and wherepracticable elimination of pollution caused by dumping or incineration at sea of wastes or othermatter. Contracting Parties shall seek to co-operate with the parties to regional agreements inorder to develop harmonized procedures to be followed by Contracting Parties to the differentconventions concerned.

[…]

Article 14 Scientific and Technical Research1 Contracting Parties shall take appropriate measures to promote and facilitate scientific and

technical research on the prevention, reduction and where practicable elimination of pollutionby dumping and other sources of marine pollution relevant to this Protocol. In particular, suchresearch should include observation, measurement, evaluation and analysis of pollution byscientific methods.

[…]

ANNEX 1 TO THE LONDON PROTOCOLWASTES OR OTHER MATTER THAT MAY BECONSIDERED FOR DUMPING1 The following wastes or other matter are those that may be considered for dumping being

mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3:

.1 dredged material;

.2 sewage sludge;

.3 fish waste, or material resulting from industrial fish processing operations;

.4 vessels and platforms or other man-made structures at sea;

.5 inert, inorganic geological material;

.6 organic material of natural origin; and

[…]

ANNEX 5. SELECTION OF RELEVANT PROVISIONS UNDER THE LONDON PROTOCOL 57

ANNEX VI - SELECTION OF RELEVANTPROVISIONS UNDER OSPAR(concluded in 1992, in force since 1998)

Article 1 DefinitionsFor the purposes of the Convention:

(a) "Maritime area" means the internal waters and the territorial seas of the Contracting Parties,the sea beyond and adjacent to the territorial sea under the jurisdiction of the coastal stateto the extent recognized by international law, and the high seas, including the bed of all thosewaters and its sub-soil, situated within the following limits […]

(b) "Internal waters" means the waters on the landward side of the baselines from which thebreadth of the territorial sea is measured, extending in the case of watercourses up to thefreshwater limit.

(c) "Freshwater limit" means the place in a watercourse where, at low tide and in a period of lowfreshwater flow, there is an appreciable increase in salinity due to the presence of seawater.

(d) "Pollution" means the introduction by man, directly or indirectly, of substances or energy intothe maritime area which results, or is likely to result, in hazards to human health, harm toliving resources and marine ecosystems, damage to amenities or interference with other legitimateuses of the sea.

(e) "Land-based sources" means point and diffuse sources on land from which substances or energyreach the maritime area by water, through the air, or directly from the coast. It includes sourcesassociated with any deliberate disposal under the sea-bed made accessible from land by tunnel,pipeline or other means and sources associated with man-made structures placed, in the maritimearea under the jurisdiction of a Contracting Party, other than for the purpose of offshore activities.

(f) "Dumping" means

(i) any deliberate disposal in the maritime area of wastes or other matter

(1) from vessels or aircraft;

(2) from offshore installations;

(ii) any deliberate disposal in the maritime area of

(1) vessels or aircraft;

(2) offshore installations and offshore pipelines.

(g) "Dumping" does not include:

(i) the disposal in accordance with the International Convention for the Prevention of Pollutionfrom Ships, 1973, as modified by the Protocol of 1978 relating thereto, or other applicableinternational law, of wastes or other matter incidental to, or derived from, the normaloperations of vessels or aircraft or offshore installations other than wastes or other mattertransported by or to vessels or aircraft or offshore installations for the purpose of disposalof such wastes or other matter or derived from the treatment of such wastes or othermatter on such vessels or aircraft or offshore installations;

(ii) placement of matter for a purpose other than the mere disposal thereof, provided that, ifthe placement is for a purpose other than that for which the matter was originally designedor constructed, it is in accordance with the relevant provisions of the Convention; and

(iii) for the purposes of Annex III, the leaving wholly or partly in place of a disused offshoreinstallation or disused offshore pipeline, provided that any such operation takes place in

ANNEX 6. SELECTION OF RELEVANT PROVISIONS UNDER OSPAR 59


accordance with any relevant provision of the Convention and with other relevantinternational law.

(j) "Offshore activities" means activities carried out in the maritime area for the purposes of theexploration, appraisal or exploitation of liquid and gaseous hydrocarbons.

(k) "Offshore sources" means offshore installations and offshore pipelines from which substancesor energy reach the maritime area.

(l) "Offshore installation" means any man-made structure, plant or vessel or parts thereof, whetherfloating or fixed to the seabed, placed within the maritime area for the purpose of offshoreactivities.

(m) "Offshore pipeline" means any pipeline which has been placed in the maritime area for thepurpose of offshore activities.

(n) "Vessels or aircraft" means waterborne or airborne craft of any type whatsoever, their partsand other fittings. This expression includes air-cushion craft, floating craft whether self-propelledor not, and other man-made structures in the maritime area and their equipment, but excludesoffshore installations and offshore pipelines.

(o) "Wastes or other matter" does not include:

(i) human remains;

(ii) offshore installations;

(iii) offshore pipelines;

(iv) unprocessed fish and fish offal discarded from fishing vessels.[…]

Article 2 General Obligations1. (a) The Contracting Parties shall, in accordance with the provisions of the Convention, take all

possible steps to prevent and eliminate pollution and shall take the necessary measuresto protect the maritime area against the adverse effects of human activities so as to safeguardhuman health and to conserve marine ecosystems and, when practicable, restore marineareas which have been adversely affected.

(b) To this end Contracting Parties shall, individually and jointly, adopt programmes andmeasures and shall harmonize their policies and strategies.

2. The Contracting Parties shall apply:

(a) the precautionary principle, by virtue of which preventive measures are to be taken whenthere are reasonable grounds for concern that substances or energy introduced, directly orindirectly, into the marine environment may bring about hazards to human health, harmliving resources and marine ecosystems, damage amenities or interfere with other legitimateuses of the sea, even when there is no conclusive evidence of a causal relationship betweenthe inputs and the effects;

(b) the polluter pays principle, by virtue of which the costs of pollution prevention, controland reduction measures are to be borne by the polluter.

3. (a) In implementing the Convention, Contracting Parties shall adopt programmes and measureswhich contain, where appropriate, time limits for their completion and which take fullaccount of the use of the latest technological developments and practices designed toprevent and eliminate pollution fully.

(b) To this end they shall:

(i) taking into account the criteria set forth in Appendix 1, define with respect to programmesand measures the application of, inter alia,

- best available techniques- best environmental practiceincluding, where appropriate, clean technology;

(ii) in carrying out such programmes and measures, ensure the application of best availabletechniques and best environmental practice as so defined, including, where appropriate,clean technology.

4. The Contracting Parties shall apply the measures they adopt in such a way as to prevent anincrease in pollution of the sea outside the maritime area or in other parts of the environment.

5. No provision of the Convention shall be interpreted as preventing the Contracting Parties fromtaking, individually or jointly, more stringent measures with respect to the prevention andelimination of pollution of the maritime area or with respect to the protection of the maritimearea against the adverse effects of human activities.

[…]

Article 3 Pollution from Land Based SourcesThe Contracting Parties shall take, individually and jointly, all possible steps to prevent and eliminatepollution from land-based sources in accordance with the provisions of the Convention, in particularas provided for in Annex I.

Article 4 Pollution by Dumping or IncinerationThe Contracting Parties shall take, individually and jointly, all possible steps to prevent and eliminatepollution by dumping or incineration of wastes or other matter in accordance with the provisionsof the Convention, in particular as provided for in Annex II.

Article 5 Pollution from Offshore SourcesThe Contracting Parties shall take, individually and jointly, all possible steps to prevent and eliminatepollution from offshore sources in accordance with the provisions of the Convention, in particularas provided for in Annex III.

Article 8 Scientific and Technical Research1. To further the aims of the Convention, the Contracting Parties shall establish complementary

or joint programmes of scientific or technical research and, in accordance with a standardprocedure, to transmit to the Commission:(a) the results of such complementary, joint or other relevant research;(b) details of other relevant programmes of scientific and technical research.

2. In so doing, the Contracting Parties shall have regard to the work carried out, in these fields,by the appropriate international organizations and agencies.

ANNEX IOn the Prevention and Elimination of Pollution from Land-based Sources[…]

Article 21. Point source discharges to the maritime area, and releases into water or air which reach

and may affect the maritime area, shall be strictly subject to authorization or regulationby the competent authorities of the Contracting Parties. Such authorization or regulationshall, in particular, implement relevant decisions of the Commission which bind the relevantContracting Party.



2. The Contracting Parties shall provide for a system of regular monitoring and inspection bytheir competent authorities to assess compliance with authorizations and regulations ofreleases into water or air.

ANNEX II

On the Prevention and Elimination of Pollution by Dumping or Incineration

Article 1This Annex shall not apply to any deliberate disposal in the maritime area of:

(a) wastes or other matter from offshore installations;

(b) offshore installations and offshore pipelines.

[…]

Article 31. The dumping of all wastes or other matter is prohibited, except for those wastes or other

matter listed in paragraphs 2 and 3 of this Article.

2. The list referred to in paragraph 1 of this Article is as follows:

(a) dredged material;

(b) inert materials of natural origin, that is solid, chemically unprocessed geological materialthe chemical constituents of which are unlikely to be released into the marine environment;

(c) sewage sludge until 31st December 1998;

(d) fish waste from industrial fish processing operations;

(e) vessels or aircraft until, at the latest, 31st December 2004.

3. (a) The dumping of low and intermediate level radioactive substances, including wastes, isprohibited.

[…]

Article 5No placement of matter in the maritime area for a purpose other than that for which it was originallydesigned or constructed shall take place without authorization or regulation by the competentauthority of the relevant Contracting Party. Such authorization or regulation shall be in accordancewith the relevant applicable criteria, guidelines and procedures adopted by the Commission inaccordance with Article 6 of this Annex. This provision shall not be taken to permit the dumpingof wastes or other matter otherwise prohibited under this Annex.

ANNEX III

On the Prevention and Elimination of Pollution from Offshore Sources

Article 1This Annex shall not apply to any deliberate disposal in the maritime area of:

(a) wastes or other matter from vessels or aircraft;

(b) vessels or aircraft.

Article 21. When adopting programmes and measures for the purpose of this Annex, the Contracting Parties

shall require, either individually or jointly, the use of:

(a) best available techniques

(b) best environmental practice

including, where appropriate, clean technology.

2. When setting priorities and in assessing the nature and extent of the programmes and measuresand their time scales, the Contracting Parties shall use the criteria given in Appendix 2.

Article 31. Any dumping of wastes or other matter from offshore installations is prohibited.

2. This prohibition does not relate to discharges or emissions from offshore sources.

[…]


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What We Propose, Gorgon, http://www.gorgon.com.au/wepropose.html.

Working Party on Fossil Fuels, IEA (2003), Zero Emissions Technologies. CO2 Capture and Storagein Geological Formations, OECD/IEA, Paris.

Working Party on Fossil Fuels, IEA (2003), Zero Emissions Technologies. Organisations and MajorProgrammes, OECD/IEA, Paris.

Working Party on Fossil Fuels, IEA (2003), Zero Emissions Technologies. Policies to SupportDevelopment and Deployment, OECD/IEA, Paris.

ABBREVIATIONS AND ACRONYMS

CCS Carbon Dioxide Capture and Storage

CO2 Carbon Dioxide

CSLF Carbon Sequestration Leadership Forum

ECBM Enhanced Coalbed Methane Recovery

EEZ Exclusive Economic Zone

EGR Enhanced Gas Recovery

EOR Enhanced Oil Recovery

EPA Environmental Protection Agency (USA)

ESPOO Convention on Environmental Impact Assessment in a Transboundary Context

ETS Emissions Trading Scheme (EU)

EU European Union

GHG Greenhouse gas

Gt Gigatonne

IEA International Energy Agency

IEA GHG IEA Greenhouse Gas R&D Programme

IPIECA International Petroleum Industry Environmental Conservation Association

JL Group Jurists and Linguists Group (OSPAR)

LNG Liquefied Natural Gas

MIT Massachusetts Institute of Technology

NGO Non Governmental Organization

NOK Norwegian Kroner

OSPAR The Convention for the Protection of the Marine Environmentof the North-East Atlantic (Oslo/Paris Convention)

RD&D Research, Development and Demonstration

UIC Underground Injection Control (USA)

UK United Kingdom

UNCLOS United Nations Convention on the Law of the Sea

UNFCCC United Nations Framework Convention on Climate Change

USD United States Dollar

USDW Underground Source of Drinking Water (USA)

WPFF Working Party on Fossil Fuels

TABLE OF ABBREVIATIONS AND ACRONYMS 67

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