Overview - Why is transport of CO2 relevant to CCS?
Transport of CO2 is necessary when a suitable storage site is not located in close proximity to the capture installation. During the transport phase, international law is relevant when CO2 crosses the territory of different states in order to reach the storage site, both addressing the conditions for permitting such a transport and any transboundary impact of it, even when the transport in question did not cross a border. The recent amendment of Article 6 of the London Protocol, although still not in force, is the first example of an international legal instrument that specifically allows the movement of CO2 across the territory of different states. However, other international conventions (see below) could have an impact upon the rules applicable to onshore CO2 transport and consequently, the deployment of full-scale CCS.
How is CO2 transported?
Carbon dioxide can be transported by rail, road, ship and pipeline. At present the most likely options are shipping and pipeline. Carbon dioxide pipelines have been used for decades for Enhanced Oil Recovery (EOR) and Enhanced Gas Recovery (EGR), especially in the United States. At present, about 5600 km of CO2 pipelines operate worldwide with a throughput of over 50 million tonnes of CO2 per year. However, there is as yet no dedicated international legislation for pipelines supporting CCS operations. Some sort of legislative framework for the transport phase of CCS would help to promote wide-scale deployment of this technology.
Transport via pipeline requires that the CO2 is pressurised and converted into a dense phase or supercritical state
in order to facilitate its movement through the pipe.
Transport by ship is possible, although some have argued that its economic feasibility will depend upon specific conditions (CDM Executive Board). Some countries, such as Italy, are considering CO2 transport by pressurised road container.
Legal challenges presented by the transport of CO2
Carbon dioxide transport touches upon different areas of law. Overall, the main legal issues raised by international transport of CO2 are:
legal definition of CO2: is it a waste or a commodity? different legal consequences could stem from classifying CO2 in either of these categories;
conflicting state jurisdictions over pipeline control and management when CO2 pipelines cross national boundaries;
health and safety guidelines and procedures, which need to be established or adapted from other pipeline regimes in order to deal with potential risks to human health or the environment;
liability for harm caused by accidents or leaks from CO2 pipelines or other transport facilities;
permitting issues;
third-party access to the network, transit rights and property rights with respect to pipeline routes; and
environmental impact assessment (EIA) and planning procedures, taking into account public participation in the decision-making process and wider public perception of CCS.
In the absence of dedicated international legislation regulating CO2 transport, it may be worth reviewing other international agreements which, although not including CCS in their scope, could have an impact upon the conditions of its development.
What are the key applicable international laws?
In order to identify the international law applicable to CO2 transport, two issues need to be addressed:
how CO2 is defined under international law (and whether it is subject to specific regulation) and
what requirements must be satisfied in order to install the necessary infrastructure for CO2 transport.
These questions have not yet been properly addressed under international law. However, attention has recently been drawn to some agreements that could help to provide answers.
If carbon dioxide were to be classified as an industrial waste, potentially hazardous to human health and the environment, the regulation of CO2 transport would be subject to the provisions of international agreements on international movements of waste. The main ones are the 1989 Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), and the 1991 Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako Convention). Alternatively, CO2 could be classified as a commodity, and would then be regulated by international agreements on transport of goods. So far, the only clarifications on this point have been provided by the amendment to Article 6 of the London Protocol on the export of waste,(see discussion in the London Protocol section), and the amendments to EU waste legislation made by the EU Directive on geological storage of carbon dioxide (CCS Directive).
In the absence of dedicated international rules applicable to CO2, attention needs to be given to the regulation of transboundary pipelines and how international law regulates pipeline routes (both onshore and offshore), including matters such as health and safety requirements, EIA and public participation in decision-making. At present, pipelines seem to constitute a more viable option for onshore CO2 transport than transport by road or rail. If road or rail transport is adopted, issues will arise in relation to international agreements on the transport of dangerous goods. (For offshore CO2 transport, both pipelines and shipping are considered in the section on offshore CO2 transport.)
What is their collective effect on CCS activities?
Until there is an international consensus on the classification of CO2 for geological storage, the effect of these conventions upon CO2 transport will remain uncertain. A clarification of this point, by an amendment or interpretative note from the Contracting Parties to, for example, the Basel and Bamako Conventions, could have a significant effect upon the development of CCS.
If deemed to be a hazardous waste, the application of these conventions would impose strict information and notification requirements on the transboundary movement of CO2 for the purpose of permanent geological storage, as well as requiring the prior consent of the receiving state. These stringent permitting requirements would lengthen the timescale and increase the costs of full-scale CCS projects.
The Contracting Parties to the two conventions have not yet addressed this aspect. The Inter-governmental Panel on Climate Change (IPCC) has stated that CO2 is unlikely to fall within the scope of the provisions of Basel or Bamako, unless the CO2 is mixed with other prohibited or restricted substances. Nevertheless, in the absence of clarification on this point, there will continue to be uncertainty about the legal status of CO2 and the applicability of international agreements restricting international transport of hazardous wastes.
What is their relationship with other EU or national laws?
Multiple jurisdictions over international pipelines make the identification of the law applicable to transboundary transport of CO2 difficult. Effective international regulation of CO2 transport has to be compatible with relevant provisions within EU, national and other regional legislation, especially in relation to the legal definition of CO2, which can differ from one country to another.