Carbon sequestration is the process of capturing, storing and removing CO2 from the atmosphere to mitigate the harmful effects of global warming. There is data to suggest that carbon sequestration may be a feasible and scalable technology to reduce emissions, however, no country has yet implemented comprehensive policy frameworks limiting investments and activity. This article introduces various regulatory frameworks and legal and policy issues involved.
Introduction
Carbon dioxide (“CO2”) is a primary contributor to climate change,[1] due to its ability to trap heat in the atmosphere.[2]Carbon sequestration is the process of capturing, storing and removing CO2 from the atmosphere to mitigate the harmful effects of global warming.[3] Carbon sequestering technology is more suited for large sources of emission. Imagine, iron and steel plants, power plants and refineries.[4] Broadly, it involves the following four stages:
- Capturing: The preliminary stage of a carbon capture and storage (“CCS”) project involves capturing the CO2 at its source i.e., fossil fuel or any manufacturing facilities.[5] Capture also involves separating CO2 from other gases.[6]
- Transporting: Capturing of carbon gas is followed by transporting the gas to a storage facility.[7] To make possible transporting large quantities, the gas is compressed.[8] Usually, it is transported through pipelines. Most countries regulate CO2 pipelines in the same fashion as that of natural gas pipelines.[9]
- Storing: Captured CO2 is stored away for a long period of time.[10] CO2 storage must meet the twin criteria of capacity to store massive quantities, and longevity.[11] There are four different types of geological storage sites where it can be stored – depleted oil and gas reservoirs, coal beds, salt caverns and deep-saline formations.[12]
- Post-closure: This marks the final stage which encompasses the main task of monitoring the controlled behaviour of the stored gas and to making sure that there is no leakage.
There is data to suggest that carbon sequestration may be a feasible and scalable technology to reduce emissions, however, no country has yet implemented comprehensive policy frameworks limiting investments and activity. This article introduces various regulatory frameworks available for carbon sequestration in the world, and highlights key legal and policy issues involved in CCS. We also introduce some recent (relevant) developments in India.
Different Regulatory Frameworks for CCS
I. Kyoto Protocol
The UN Framework Convention on Climate Change stated that its main objective is “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.[13] In 1997, this framework convention was operationalised through the adoption of the Kyoto Protocol, which finally took effect in 2005.[14] The Protocol provided for various market-based mechanisms to help countries meet their climate commitments like the Clean Development Mechanism, International Emissions Trading, and Joint Implementation projects.[15]The Protocol also requires parties to engage in the research, promotion and development of CO2 sequestration technologies and other innovative “environmentally sound” technologies.[16]
In order to limit the greenhouse gas emission by treaty states, the Protocol has assigned a “monetary value to the earth’s shared atmosphere.”[17] Through this, the Protocol increases focus on cost-effective measures to reduce emissions.[18] Along with CCS infrastructure, the Protocol also nudged the establishment of carbon or emissions trading mechanisms across the world, which was later carried into the Paris Agreement as well. Carbon trading systems will also bring economic incentive to the growth of innovative technologies like CCS, and pave the way for more investment and financing.
II. Europe
Carbon sequestration in the EU is governed by the Directive on the geological storage of CO2, 2009.[19] The Directive is a flexible measure[20] that largely focuses on the storage of CO2 in member states, the continental shelf and exclusive economic zones.[21] It governs the authorisation of storage sites, monitoring their operation, post-closure responsibilities and remedies in case of damage caused by operations.[22] It allows geological storage of CO2 only with a permit,[23] and allows member states to deny permits for CO2 storage in their territories.[24] These storage sites are subject to a stringent prior review mechanism to ensure that there is no substantial risk of leakage, harm to human health or the environment under the conditions of usage.[25]
Storage operators can also benefit under the EU’s Emissions Trading System. Participants in this system are awarded pollution allowances for their emissions, and where a participant emits more than its allowance, it must purchase additional allowances from other participants who have emitted less than their allowance. Where CO2 storage projects suffer leakages, it would account towards their available allowance; [26] however, where CO2 is safely captured, transported and stored, it would not count towards emissions, and thus would not deplete the pollution allowance available with the emitter.[27]
III. UK
The Energy Act, 2008 provides the framework for CO2 import and storage in the territory, and from the existing 12 nautical mile limit of the UK’s territorial sea to a maximum of 188 nautical miles within the UK Continental Shelf.[28] The Government has prescribed Regulations under the Act to allow licensing for the offshore storage of CO2 as well, along with permits for exploring storage sites, and obligations of storage operators, among others.[29] The focus on offshore storage is a result of the massive potential of the North Sea for storing CO2 emitted in Europe.[30] The Regulations also impose obligations on persons seeking to construct coal-fired power plants to mandatorily include CCS for their emission capacities.[31]
IV. Canada
Canada’s existing regulatory framework is accommodative of CCS projects, with Alberta being at the forefront.[32] In 2009, Canada enacted the Carbon Capture and Storage Funding Act, aimed at upscaling and encouraging CCS activities in Alberta.[33] It empowered the Minister of Energy to authorise grants under the Act for expenses to advance CCS.[34] Subsequently, the Carbon Sequestration Tenure Regulation, 2011 was enacted under the Mines and Minerals Act.[35] The regulation applies to agreements entered into by the Minister for the sequestration of captured CO2 in Alberta.[36] These agreements are in the form of permits, which grant a party the right to evaluate the properties of a geological site and its suitability for carbon sequestration.[37] The Regulation also governs the terms and conditions of these permits.[38] .
Key Legal Issues
Carbon sequestration technologies involve several legal issues. Primarily, they pertain to the health and safety concerns arising from the compressed CO2 stream. This section discusses the most common issues that CCS regulatory frameworks need to address to encourage growth and innovation in the field.
I. Liability issues in case of leakages
CO2 storage facilities may suffer leaks. So far, there are no documented incidents of such leakage; however, the possibility cannot be ruled out, and the potential harm to human life and the environment cannot be ignored.[39] Two types of liability may attach to such projects in the event of a leak. First, the liability from harm inflicted on humans and the environment due to leakage. Second, liability arising from a national or international greenhouse gas regime. Typically operators shif liability on to others through contractual terms, such as indemnity agreements.
II. The Legal Characterization of CO2 and CCS activities
Several stakeholders have advocated for treating CO2 as a commodity, rather than just a pollutant, owing to its commercial applications.[40] It is used in products such as carbonated drinks, fire extinguishers, and others.[41] Different countries have taken different regulatory approaches. The Canadian Environmental Protection Act, 1999, for instance, treats CO2 as a toxic substance,[42] whereas the Environmental Protection Agency in the USA has been hesitant to list CO2 as a toxic substance under the Clean Air Act. The Basel Convention, also does not consider atmospheric CO2 as a waste.[43] The intention behind categorising CO2 as a commodity is to reduce operator liability in case of a leak,[44] and foster more investments from the private sector.[45]
III. Ownership of Pore Space
Pore space simply refers to the empty space between layers of rock under the surface.[46] The ownership and control of this space where CO2 would be “sequestered” is contentious.[47] Answering this question would involve looking at the property interest in geological formations.[48] Typically, the rights to pore space would involve the rights to the surface, and the components underneath, such as coal, oil and natural gas, among other things.[49] This becomes a key issue for companies looking to utilise pore space for CCS activities – ambiguous categorisation of these rights would hamper CCS operations.[50]The issue can be clarified either by enacting new legislation, or through adjudicating disputes conclusively.
For instance, in Texas, conflicting court decisions have left unclear the question of who would need to be approached to obtain underground storage rights to open a carbon storage facility.[51] In the case of Mapco v. Carter,[52] the mineral estate owner had brought an action to partition the mineral estate against Mapco (the surface estate owner). Mapco had created an underground cavern to store natural gas and other hydrocarbons. The Texas Appellate Court awarded the mineral estate owner with the ownership right to underground formations (which presumably includes pore spaces) as against the owner of the surface estate.[53]
However, the U.S. Court of Claims (Texas) gave a conflicting decision in Emeny v. United States,[54] where it held that the surface estate owner owns the associated underground formations, although that ownership right must bow to the right of reasonable use by any productive oil and gas lessee.[55] The Mapco case follows the “English rule” (where the mineral owner owns pore space), whereas Emeny followed the “American rule” (where the surface owner owns pore space).[56] Most courts in the US have preferred the American rule.[57] This is a largely unsettled issue across jurisdictions.
Carbon Sequestration in India
India was one of the earliest signatories of the United Nations Framework Convention on Climate Change. In its Second Biennial Update Report submitted to the framework convention in 2018, India identified the importance of CCUS technologies in reducing emissions from the coal and energy sector.[58] India ratified the Kyoto Protocol in 2002 and the Paris Agreement in 2016.[59] India is also a member of the Carbon Sequestration Leadership Forum and hosted the fifth forum meeting in Delhi in April 2006.[60]
India’s National Action Plan on Climate Change includes development of clean coal and clean carbon technology to minimize CO2 emissions.[61] More recently, in August 2020, the Department of Science and Technology announced a call for pre-proposals in the area of Accelerating Carbon Capture, Utilisation, and Storage Technologies.[62] The call for full proposals was supposed to culminate in March, 2021.[63] The aim of this project is to encourage “translational funding” of projects aimed at CCUS. Accelerating CCS Technologies (ACT) is currently operating with 16 member countries/provinces/regions to fund research and development in the field.[64]
Challenges to implement carbon sequestration in India
The main challenges to the effective implementation of carbon sequestration in India are:
- Lack of regulatory framework: this is essential to clarify the liability of storage operators’ liabilities such that risk can be priced better by private investors.
- Availability of data: Studies have also shown that India has not sufficiently assessed its storage potential for CO2.[65]
- Geological storage capacity: Several of the large emission sources are located far away from available storage facilities.[66] This has a significant bearing on whether a jurisdiction can effectively implement CCS, based on the availability of infrastructure for transporting to long distances.
- Cost: This has been a primary reason for delayed implementation of CCS in India.[67]
These challenges can be mitigated by introducing a well-designed regulatory framework, fostering investment into CCS activities and comprehensive assessments of potential storage facilities. Several CCS projects in the US have taken off with the help of grant funding and debt financing.[68] Banks and lenders in India perceive such projects to be high-risk, and so the government needs to step up by granting funds, concessional loans, loan guarantees and other incentives to attract private players.[69] The government will have to play a key role in financing these projects initially. Well-developed storage sites and transportation options are needed.[70] This is another area of focus for the government.[71]
Current developments in CCS projects in India
Carbon sequestration is not alien to India – facilities have emerged, and some of the biggest industries have taken this plunge. The National Aluminium Company was the first company in India to set up carbon sequestration facilities in its captive power plant.[72] The unique project sought to reduce carbon emissions by “harnessing special strains of algae”,[73] and was awarded by the State Pollution Control Board, Odisha in 2015 for its efforts.[74]
Another small scale carbon capture and utilisation plant is operational in Thoothukudi, Kerala. The plant captures CO2 from its own coal-powered broiler, and uses it to make baking soda.[75] This plant was the first unsubsidised project in India, which focused not only on CO2 capture but also utilisation.[76] The project managed operating without cost subsidies by utilising a new CO2 separation chemical, and is seen as a win against the cost-challenge to effectively implementing CCS in India.[77]
In 2021, Indian Oil Corporation Limited initiated India’s largest carbon capture and utilisation project in partnership with Texas-based Dastur Energy, with funding from the United States Trade and Development Agency.[78] The project envisages capturing over 5000 tonnes of CO2 per day for large scale enhanced oil recovery activities at ONGC’s refinery in Gujarat.[79]IOCL and ONGC’s Memorandum of Understanding from 2019 allowed the public-sector giants to cooperate on carbon capture and EOR – where the CO2 captured at IOCL’s refinery in Koyali, Gujarat will be transported through a pipeline to ONGC’s Gandhar (Gujarat) oil field.[80] IOCL also signed a similar MoU with Oil India Limited to transport captured CO2 from IOCL’s Digboi refinery in Assam for EOR activities at OIL’s Naharkatiya and Dikom (Assam) oil fields.[81]
Alternate usages for captured CO2 are also being explored to enhance economic feasibility of the project, such as selling food-grade CO2 to food and beverage companies.[82] R&D Director for Indian Oil S.S.V. Ramakumar said, “We are happy that Dastur Energy along with Air Liquide and the UT Austin, Bureau of Economic Geology will help us analyse and design not only a state-of-the-art commercial-scale capture system but also an economically viable model of carbon capture that can be a fore runner for CCUS in India.”[83]
Recently, the Minister of Petroleum and Natural Gas said that technology from this project will also be used to power buses using blue hydrogen – saying, “One of such projects is underway at our Gujarat refinery of Indian Oil wherein the combination of hydrogen production through natural gas and its hyphenation with the carbon capture technology will result in the production of blue hydrogen. Multiple buses powered by fuel cells will be covering various iconic routes. Efforts are underway to leverage the vast CNG pipeline infrastructure to reduce the transportation cost of hydrogen.”.[84] CCUS technology in India is slowly picking up with large-scale projects, and political will is also leaning in favour of harnessing innovative technology to meet climate change and renewable energy targets. The kinks need to be ironed out. Let us start with a policy in place.
This article has been authored by Akshay Nair and Sanjana L.B., during their internship with inputs from Anirudh Rastogi, Managing Partner at Ikigai Law.
For more on the topic, please get in touch at contact@ikigailaw.com
Image Credits: Freepik
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[5] Bert Metz et al. (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage, UNEP-WMO (2005), https://www.ipcc.ch/site/assets/uploads/2018/03/srccs_wholereport-1.pdf, p. 66.
[6] Bert Metz et al. (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage, UNEP-WMO (2005), https://www.ipcc.ch/site/assets/uploads/2018/03/srccs_wholereport-1.pdf, p. 66.
[7] Bert Metz et al. (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage, UNEP-WMO (2005), https://www.ipcc.ch/site/assets/uploads/2018/03/srccs_wholereport-1.pdf, p. 70.
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[23] Article 6(1), Directive 2009/31/EC of the European Parliament and of the Council.
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[32] Government of Canada, Carbon Capture and Storage: Canada’s Technology Demonstration Leadership, Dec. 18, 2015, https://www.nrcan.gc.ca/energy/publications/16226. See also, Burgess Langshaw Power, Canada’s latest climate plan bets on expensive and unproven carbon capture technologies, DownToEarth, Nov. 26, 2020, https://www.downtoearth.org.in/blog/climate-change/canada-s-latest-climate-plan-bets-on-expensive-and-unproven-carbon-capture-technologies-74409.
[33] Nadia Conforti , Arnold Olyan and Garth Parker, Carbon Capture And Storage – An Alberta Perspective, Jul. 17, 2012, https://www.mondaq.com/canada/chemicals/186770/carbon-capture-and-storage–an-alberta-perspective.
[34] Sections 2, 3 of the Carbon Capture and Storage Funding Act, 2009, https://www.qp.alberta.ca/1266.cfm?page=C02P5.cfm&leg_type=Acts&isbncln=9780779773602.
[35] Carbon Sequestration Tenure Regulation, 2011: https://qp.alberta.ca/documents/Regs/2011_068.pdf.
[36] Section 2, Carbon Sequestration Tenure Regulation, 2011.
[37] Section 115, Mines and Minerals Act, 2000 (Alberta), https://www.qp.alberta.ca/documents/Acts/m17.pdf. See also, Regulation 3, Carbon Sequestration Tenure Regulation, 2011, https://qp.alberta.ca/documents/Regs/2011_068.pdf.
[38] Ian Havercroft, Richard Macrory, Regulating the operational and long-term liabilities associated with Carbon Capture and Storage (CCS): Approaches and lessons from Europe, Australia and Canada, Energy Procedia (2014), p. 6695, https://www.researchgate.net/publication/272380382_DKJStartDKJStartGHGT-12_Regulating_the_operational_and_long-term_liabilities_associated_with_Carbon_Capture_and_Storage_CCS_Approaches_and_lessons_from_Europe_Australia_and_Canada.
[39] S Haszeldine (2011) ‘Geological Factors in Framing Legislation to Enable and Regulate Storage of Carbon Dioxide Deep into the Ground’ in Havercroft, Macrory and Stewart Carbon Capture and Storage – Legal and Regulatory Issues , Hart Publishing, Oxford at 13
[40] Ianna Dimitriou et al., Carbon dioxide utilisation for production of transport fuels: process and economic analysis, Energy and Environmental Science (2015), https://pubs.rsc.org/en/content/articlelanding/2015/ee/c4ee04117h#!divAbstract.
[41] Henriette Naims, Economics of carbon dioxide capture and utilization—a supply and demand perspective, 23 Environmental Science and Pollution Research, p. 22226-22227 (2016), https://link.springer.com/content/pdf/10.1007/s11356-016-6810-2.pdf.
[42] See, Toxic substances list: carbon dioxide, last accessed on Apr. 28, 2021, https://www.canada.ca/en/environment-climate-change/services/management-toxic-substances/list-canadian-environmental-protection-act/carbon-dioxide.html.
[43] See, Annex I to the Basel Convention, http://archive.basel.int/pub/annexes.pdf.
[44] Interstate Oil and Gas Compact Commission (IOGCC), Carbon Capture and Storage: A Regulatory Framework for States – Summary of Recommendations 2005, online: IOGCC [IOGCC Report].
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[46] Trae Gray, Ryan Ellis, The Value And Uses Of Pore Space As A Property Right, Jun. 8, 2017, https://www.rliland.com/value-uses-pore-space-property-right/.
[47] Holly Javedan, Regulation for Underground Storage of CO2 Passed by U.S. States, MIT, https://sequestration.mit.edu/pdf/US_State_Regulations_Underground_CO2_Storage.pdf, p. 8.
[48] Chris Hendricks, M.J. Mace, Rogier Coendraas, Impacts of EU and International Law on the Implementation of Carbon Capture and Geological Storage in the European Union, Report for the European Commission (2005), p. 41, http://pdf.wri.org/ccs_impact_of_eu_law_on.pdf.
[49] Ian J. Duncan, Scott Anderson, Jean-Philippe Nicot, Pore space ownership issues for CO2 sequestration in the U.S., Energy Procedia, p. 4427, https://www.researchgate.net/publication/235686202_Pore_space_ownership_issues_for_CO2_sequestration_in_the_US.
[50] See, Alex Zapantis, Alex Townsend, Dominic Rassool, Policy Priorities to Incentivise Large Scale Deployment of CCS, April 2019, https://www.globalccsinstitute.com/wp-content/uploads/2019/04/TL-Report-Policy-prorities-to-incentivise-the-large-scale-deployment-of-CCS-digital-final-2019-1.pdf, p. 20.
[51] https://www.forbes.com/sites/uhenergy/2019/11/19/the-top-five-legal-barriers-to-carbon-capture-and-sequestration-in-texas/?sh=5681694a7508.
[52] Mapco Inc. v. Carter, 808 S.W.2d 262 (1991).
[53] David Cooney, Part 2: Analysis of Property Rights Issues Related to Underground Space Used for Geologic Storage of Carbon Dioxide,IOGCC Task Force on Carbon Capture and Geologic Storage Subgroup of State Oil and Gas Attorneys, https://cdrlaw.org/wp-content/uploads/2020/10/PropertyRights.pdf, p. 2.
[54] Emeny v. United States, 412 F.2d 1319 (Ct. Cl. 1969).
[55] Emeny v. United States, at 1322, 1323.
[56] Stefanie L. Burt, Who Owns the Right to Store Gas: A Survey of Pore Space Ownership in U.S. Jurisdictions, 2016, http://www.duqlawblogs.org/joule/wp-content/uploads/2016/07/Who-Owns-the-Right-to-Store-Gas-A-Survey-of-Pore-Space-Ownership-in-U.S.-Jurisdictions-.pdf, p. 6.
[57] Robert Burford, Understanding ‘Pore Space’ Law in Oil and Gas Litigation, Jan. 20, 2021, https://burfordperry.com/understanding-pore-space-law-in-oil-and-gas-litigation/.
[58] India: Second Biennial Update Report to the United Nations Framework Convention on Climate Change, 2018, https://unfccc.int/sites/default/files/resource/INDIA%20SECOND%20BUR%20High%20Res.pdf, p. 188.
[59] UNFCCC Parties: India, https://unfccc.int/node/61082.
[60] https://cdiac.ess-dive.lbl.gov/newsletr/virtual/sections/CSequestration.html
[61] Shibani Ghosh & Navroz K. Dubash, National Climate Policies and Institutions, in Navroz K. Dubash, India in a Warming World: Integrating Climate Change and Development, Oxford Scholarship Online (2019), p. 337.
[62] Department of Science and Technology, DST encourages translational research on Carbon Capture, Utilisation & Storage, Aug. 19, 2020, https://dst.gov.in/dst-encourages-translational-research-carbon-capture-utilisation-storage.
[63] Department of Science and Technology, DST encourages translational research on Carbon Capture, Utilisation & Storage, Aug. 19, 2020, https://dst.gov.in/dst-encourages-translational-research-carbon-capture-utilisation-storage.
[64] ACT: About us, http://www.act-ccs.eu/about-us.
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[66] Bert Metz et al. (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage, UNEP-WMO (2005), https://www.ipcc.ch/site/assets/uploads/2018/03/srccs_wholereport-1.pdf, p. 35.
[67] S. Anand Giri, Nidhi Tiwari, Prospects and Challenges for CCS Technology Deployment in India, 4 International Journal of Scientific & Engineering Research (2013), p. 894, https://www.ijser.org/researchpaper/Prospects-and-Challenges-for-CCS-Technology-Deployment-in-India.pdf.
[68] See, Alex Zapantis, Alex Townsend, Dominic Rassool, Policy Priorities to Incentivise Large Scale Deployment of CCS, April 2019, https://www.globalccsinstitute.com/wp-content/uploads/2019/04/TL-Report-Policy-prorities-to-incentivise-the-large-scale-deployment-of-CCS-digital-final-2019-1.pdf, p. 21.
[69] See, Alex Zapantis, Alex Townsend, Dominic Rassool, Policy Priorities to Incentivise Large Scale Deployment of CCS, April 2019, https://www.globalccsinstitute.com/wp-content/uploads/2019/04/TL-Report-Policy-prorities-to-incentivise-the-large-scale-deployment-of-CCS-digital-final-2019-1.pdf, p. 30.
[70] See, Alex Zapantis, Alex Townsend, Dominic Rassool, Policy Priorities to Incentivise Large Scale Deployment of CCS, April 2019, https://www.globalccsinstitute.com/wp-content/uploads/2019/04/TL-Report-Policy-prorities-to-incentivise-the-large-scale-deployment-of-CCS-digital-final-2019-1.pdf, p. 6.
[71] See, Alex Zapantis, Alex Townsend, Dominic Rassool, Policy Priorities to Incentivise Large Scale Deployment of CCS, April 2019, https://www.globalccsinstitute.com/wp-content/uploads/2019/04/TL-Report-Policy-prorities-to-incentivise-the-large-scale-deployment-of-CCS-digital-final-2019-1.pdf, p. 8.
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