The 2009 EU Directive on the geological storage of carbon dioxide ('CCS Directive') mainly regulates the storage phase of the CCS process. However, there are some provisions concerning the capture and transport phases which are intended to facilitate the integration of the different phases of the CCS chain - capture, transport, and storage. Article 3 of the Directive defines the CCS transport network as 'the network of pipelines, including associated booster stations, for the transport of CO2 to the storage site'. Article 21 addresses access to that network, while Articles 22 and 24 deal with dispute settlement and trans-boundary cooperation on transport matters. Chapter 7 of the Directive then amends other EU laws, either to remove barriers to CCS transport or to bring aspects under appropriate regulation. Overall, however, the CCS Directive leaves many aspects of CCS transport to be regulated at Member States level.
What are the relevant provisions on CO2 transmission?
The Preamble of the CCS Directive highlights some guiding requirements with respect to environmental health and safety concerns related to transport of CO2, which include:
the need to manage the environmental risks of CO2 transport by means of the legislation that is already in place, and the express inclusion of the transport phase within the scope of the Environmental Impact Assessment (EIA) Directive; and
a call for restrictions on the composition of CO2 streams, to take account of the risks that contamination might pose to the safety and security of the transport and storage network, and to the environment and human health.
Access to CO2 transport network and storage sites (Article 21)
Depending on the price of CO2 emission allowances and CCS infrastructures, the Directive foresees the possibility that access to CO2 transport networks (and storage sites) could become a barrier to entry into, or competitive operation within, the internal EU electricity and heat markets. The Directive therefore requires Member States to ensure that all potential operators can obtain 'fair and open' access to the transport network. Member States are given discretion to determine the precise means of providing this access, as long as they are set in a 'transparent and non-discriminatory manner'. In doing this, Member States are required to take account of four factors:
'the transport capacity which is or can reasonably be made available' for that specific network; i.e., the physical or technical capability of the network to accept additional operators;
the Member State CO2 reduction commitments under international and EU law, and what portion of them are to be met using CCS. This can be interpreted as the 'political capacity' to allow additional operators on to the network, within the limits of the emission reduction target of the Member State concerned. This means that, in the process of allowing external operators to access the network, a Member State can consider its national emission reduction targets, and give priority to domestic reductions over global reductions;
the need to refuse access to the network due to a technical incompatibility, which cannot be 'reasonably overcome'. This requirement is relevant when different levels of purity, concentration or pressure of CO2 streams could have a harmful effect on the integrity of the network causing, for example, fractures or leakages; and
the need to respect the 'duly substantiated needs' of the holder or operator of the transport network, as well as the interests of other users of the network or related infrastructures that might be affected by further connections.
In addition to the stringent conditions applicable to Member States, the Directive states that transport network operators may refuse access 'on the grounds of lack of capacity', provided they give 'duly substantiated reasons'. In those circumstances, Member States must take the necessary measures to ensure that operators refusing access for 'lack of capacity or a lack of connection' make any necessary enhancements to the network to overcome these obstacles, provided it is economic to do so, or a potential customer is willing to pay for them, and provided also that they would not have a negative impact on the environment.
Dispute settlement mechanisms for disputes related to transport of CO2 (Article 22)
The Directive requires Member States to establish arrangements, including an authority independent of the parties with access to all relevant information, in order to resolve disputes regarding access to CO2 transport infrastructures in an 'expeditiously', taking into account the criteria established to ensure 'fair and open access'. This goal is to be achieved by means of international consultation, where appropriate, giving primary jurisdiction to the settlement arrangements of the Member State housing the transport network to which access has been refused.
Transboundary cooperation on transport of CO2 (Article 24)
In the event of transport of CO2 across the territory of a number of Member States, the Directive establishes that the competent authorities of all the Member States involved should jointly apply the provisions of the Directive and of other relevant Community legislation.
Amendments to relevant European Directives
In order to remove legal barriers to the movement of CO2 across Europe, and to facilitate the development of a dedicated transport network, some provisions included in previous EU directives are amended by the CCS Directive (see CCS Directive, Articles 31, 33, 35 and 36). The aim of these amendments is to remove unwitting legal barriers to the development of CCS.
Annex I of the Environmental Impact Assessment (EIA) Directive (Directive 85/337 EEC), concerning projects for which Member States are required to conduct an EIA, is amended to include large-diameter pipelines of more than 40km in length for the transport of CO2 streams for the purposes of geological storage (including associated booster stations). Annex II, concerning projects for which Member States can conduct a case-by-case examination as to whether to conduct an EIA, is also amended to include 'pipelines for the transport of CO2 streams for the purpose of geological storage', where they are not covered by Annex I.
The Directive on the limitation on emissions of certain pollutants into the air from large combustion plants (Directive 2001/80/EC) is amended to require Member States to ensure that operators of large combustion plants (300MW or more), which have obtained either a construction or an operating licence after the entry into force of the CCS Directive, have evaluated whether 'transport facilities are technically and economically feasible'.
The EU laws on waste (Directive 2006/12/EC) and on shipments of waste (Regulation 1013/2006) are amended to exclude from their application respectively 'carbon dioxide captured and transported for the purpose of geological storage' and 'shipments of CO2 for the purpose of geological storage'. This means that CO2 handled within the terms of the CCS Directive is not treated as a waste under the relevant EU legislation, and its transport is not regulated under the waste legislation . These provisions remove an important barrier to the deployment of full-scale CCS operations and related CO2 transport infrastructures in Europe.
Key issues concerning CCS
Although the CCS Directive provides elements of a framework for regulating the CCS transport phase, some important issues still need clarification.
Concerns seem to focus upon economic and market aspects of a new transport network, including the rules for providing fair and open third party access to the transport network. As a whole, the provisions on access are drafted along the same lines as those in the Directive concerning common rules for the internal market in natural gas (Directive 2003/55/EC). Other relevant legal issues concerning infrastructures for CO2 transport, such as health and safety standards, planning requirements or public participation, are still largely left to the Member States.
The legal meaning of 'duly substantiated reasonable needs' of the owner or operator of the network as well as the concept of 'substantiated reasons' for the operator to deny access needs to be clarified. In addition, the difference between the concept of 'lack of capacity' and 'lack of connection' also needs further explanation, including the reason why 'lack of connection' is not also mentioned within the permitted justifications for denying third party access.
Key issues such as technical standards for the design, construction, monitoring and maintenance of pipelines, as well as public participation procedures in the decision-making with respect to pipeline routing, remain outside the EU framework.
Despite references in the Directive to environmental concerns about CO2 transport, provisions to address such risks are mainly left to be dealt with under the EIA Directive and national laws, rather than within the dedicated framework of the CCS Directive.