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1 1 1 1 12 22 28 8 (2008) 20 ELM : THE LONG-TERM STEWARDSHIP OF CARBON DIOXIDE STORAGE SITES : EVERS
with any regime intended to regulate an activity which and/or property are damaged by CO leaking from a
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may give rise to risks to the environment and human health storage site.
and safety, it should observe the ‘polluter pays’ principle.
Second, it should not distort competition between Local environmental damage
potential operators. However, any regime which satisfies
these criteria (in particular the first) will necessarily impose At EU level, local environmental damage is covered by
potential liabilities on operators, which may in turn Directive 2004/35/CE of the European Parliament and
disincentivise potential developers of CCS projects. Given of the Council of 21 April 2004 on environmental liability
the urgent need to find methods of abating atmospheric with regard to the prevention and remedying of
CO emissions and given the potential of CCS as one such environmental damage (Environmental Liability Directive).
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method, it may not be considered desirable to According to Article 1 of the Environmental Liability
disincentivise potential developers. To stimulate CCS Directive, it aims to establish a framework of environmental
project development it may therefore be necessary to limit liability based on the ‘polluter pays’ principle to prevent
the liability of operators to a commercially acceptable level. and remedy environmental damage. Article 2(2) defines
This approach appears to have found some support in ‘damage’ as ‘a measurable adverse change in a natural
government, with the current UK Minister for Energy, resource or measurable impairment of a natural resource
Malcolm Wicks, stating, ‘I think it is just plain common service which may occur directly or indirectly’.
sense that in terms of the very long term … it would be Although the Environmental Liability Directive
unrealistic to think that a company, even a very powerful establishes strict liability for environmental damage and
st
company that was a big player in the 21 Century, may for any imminent threat of such damage, this liability is
necessarily be there to manage it three million years later’. 10 dependent on the polluter carrying out one or more of
In this respect it may also be possible to draw some various ‘occupational activities’ set out in Annex III to the
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parallels with the decommissioning of nuclear facilities and directive. These activities do not currently include the
the disposal of nuclear waste, which is discussed further geological storage of CO . However, the directive also
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below. establishes liability for damage to protected species and
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In general terms it is possible to divide the liabilities natural habitats, and for any imminent threat of such
arising from a release of CO from a storage site into three damage caused by activities other than those listed in
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categories: Annex III, where the operator has been at fault or
negligent. 14
• liability for local damage to human health and Of particular relevance to CO storage sites is Article
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property; this could arise as a result of asphyxiation 8(4) of the Environmental Liability Directive, which
and/or damage to structures enables Member States to waive the requirement for
• liability for damage to the environment in the vicinity operators to bear the cost of remedial action if
of the storage site, such as damage to ecosystems environmental damage is caused by an emission or event
arising from the acidification of water resources expressly authorised in a permit or by an emission or
• liability for damage to the global environment as a activity or manner of using a product which was not
result of the leakage of CO into the atmosphere and considered likely to cause environmental damage
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the exacerbation of climate change. according to the state of scientific and technical
knowledge at the time when the emission was released. In
If they materialise at all, these liabilities may not do so for the case of a CO storage site, when is that test applied?
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hundreds, if not thousands, of years. Is it when the CO is injected into the site, or is it when
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the CO subsequently leaks? If the former, it is unlikely
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Local damage to health and property that a storage site operator could be fixed with liability
given the current state of knowledge about CO storage
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The regulation of liability for local damage to human health technologies. However, the state of scientific knowledge
and property is not generally an area of competence for regarding CO storage sites is likely to evolve considerably
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the EU, so remedies for damage to health and property in the next few hundred years, so if a site leaks after several
will need to be sought under national law. In England and hundred years, can the responsible person rely on this
Wales the law of tort will therefore be relevant, with causes ‘state of the art’ defence? As we shall see below, the
of action potentially arising in nuisance, trespass, responsible person may well be the state, so this raises
negligence and under the rule in Rylands v Fletcher. 11 the issue of whether the state can waive its own obligations
Irrespective of the difficulties involved in bringing civil to remediate.
claims in respect of environmental damage there is, in Article 3 and Annex III of the Environmental Liability
theory, no reason why the common law should not afford Directive do not make it clear whether a closed CO
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a cause of action and a remedy to a claimant whose health storage site constitutes an ‘occupational activity’ as

10 House of Commons Select Committee on Science and Technology, 13 Article 3(1)(b).
Minutes of Evidence 14 December 2005 Q314. 14 Article 3(1)(b).
11 (1868) LR 3 HL 330.
12 Article 3(1)(a).
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