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20 Eur. Energy & Envtl. L. Rev. 108 (2011)
Environmental Liability regarding Carbon Capture and Storage (CCS) Operations in the EU

handle is hein.kluwer/eelr0020 and id is 108 raw text is: 108 European Energy and Environmental Law Review June 2011 Environmental Liability of CCS in the EU Environmental Liability Regarding Carbon Capture and Storage (CCS) Operations in the EU Monica Bergsten* I. Introduction Climate change is one of the greatest challenges that we presently face. Urgent actions are needed in order to prevent the rising of the global average temperature to a threshold that could trigger irreversible and possibly catastrophic changes for our planet. The European Union has made and continues to make efforts to reduce its contribution to global warming. The commitment made by the EU leaders to cut emissions by at least 20 per cent of 1990 levels by 2020 is being implemented through a package of binding legislation. This package represents an inte- grated approach to climate and energy policy and its core includes several pieces of complementary legisla- tion.' One of them is Directive 2009/31/EC of the European Parliament and of the Council on geological storage of carbon dioxide (CCS Dir.)2 which establishes a legal framework for the environmentally safe geological storage of carbon dioxide (C02). The directive regulates all CO2 storage in geological formations in the EU, and lays down requirements covering the entire lifetime of a storage site. Conse- quently, it includes provisions regarding liability for this type of operations. There are several types of liability regarding CCS operations.3 The present article focuses on environ- mental4 liability for storage operations as it is regulated by the CCS Directive. II. Environmental Liability during the Operation of the Storage Sites The CCS Directive amends Dir.2004/35/EC of the European Parliament and of the Council on environ- mental liability with regard to the prevention and remedying of environmental damage (ELD)5 by intro- ducing another paragraph in Annex III, namely the operation of storage sites. This means that if damage to environment is caused during the operation of a storage site, the provisions of the ELD also applies. On this regard, there are several issues that need to be examined. 2.1 Scope The CCS Directive applies to the geological storage of CO2 in the territory of the Member States, their exclusive economic zones and on their continental shelves as they are defined by the United Nation Convention of the Law of the SEA (UNCLOS).6 As for the other activities laid down in Annex III of the ELD, the operator of a storage site is strictly liable for the environmental damage caused during the operation of the storage site. The ELD defines what ''environmental damage means and includes damage to protected species and natural habitats, water damage and land damage.7 One issue that needs to be clarified in the transposi- tion and implementation processes concerns the water damage that can be caused by CCS operations. The ELD mentions that meaning of waters is provided by Dir. 2000/60/EC establishing a framework for Com- munity action in the field of water policy (WFD)8 which includes inland surface waters, transitional waters, coastal waters and groundwaters.9 In case that there is a leak of CO2 from a storage site which is located in the territorial waters of a Member State, its exclusive economic zone or its * Monica Bergsten, European Affairs Counsellor, Ministry of Environment and Sustainable Development, Romania. monicaotel@gmail.com. 1 A revised and strengthen EU Emissions Trading System (EU ETS Directive - Dir.2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC as latest amended by Dir.2009/29/EC), Decision 406/2009/EC of the European Parliament and of the Council on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020 and Dir.2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. 2 Official Journal (OJ) 5.6.2009 L140/114. 3 Mary Griffiths, Policy Option Paper - Closing the Liability Gap (2008), The Pembina Institute and Institute for Sustainable Energy, Environment and Economy, Alberta, Canada, p. 3, http://pubs.pembina.org/reports/ccs-policy- liability-gap.pdf , Mark de Figueiredo, The liability of Carbon Dioxide Storage (2007), PhD thesis, Massachusetts Institute of Technology, p. 51, http://esd.mit.edu/people/ dissertations/defigueiredo.pdf, Matt Elkington, Options for managing liability in CCS projects (June 2007), Marsh & McLennan Companies, http://www.ieaghg.org/docs/ CCS%20financing%20pdfs/N%20-%20Elkington%20- %20Managing%201iability.pdf . 4 The CCS Directive provides for two types of liability: liability for climate damage related to the leakage of C02 from storage complex and the effect on climate change and liability for environmental damage in case of damage to protected species and natural habitats, water and land. See recital 30. ' OJ 30.4.2004 L143/56. 6 Art. 2 para. 1. Art. 2 para. 1. OJ 22.12.2000 L327/1 9 Art. I of WFD.

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