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THE LONG-TERM STEWARDSHIP OF CARBON DIOXIDE STORAGE SITES : EVERS : (2008) 20 ELM 129
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defined in Article 2(7): ‘any activity carried out in the
Global environmental damage
course of an economic activity, a business or an
undertaking, irrespectively of its private or public, profit One of the main functions of CCS is to prevent CO being
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or non-profit character’. If a closed CO storage site is emitted into the atmosphere and thereby exacerbating
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not an ‘occupational activity’ then the Environmental global climate change. It therefore follows that one of the
Liability Directive does not apply to it; if it is, then the main aims of any legal regime regulating the long-term
Environmental Liability Directive does apply. It is difficult stewardship of CO must be to prevent stored CO from
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to argue that storing CO is not an ‘occupational activity’, leaking back into the atmosphere. This is particularly the
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since if this were the case then it would be impossible to case if the operator of the storage site and/or those
fix anyone with liability under the Environmental Liability consigning their CO to the storage site have received
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Directive for environmental damage caused by any activity economic incentives for storing the CO .
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which caused the damage several years after the event. There is currently no legal regime in either the EU or
Examples would include landfill sites and gradual the UK which covers damage to the global environment
groundwater pollution arising from an industrial activity. (that is, the exacerbation of global climate change as a
On the other hand, it is arguable that the ‘economic result of increased CO concentration in the atmosphere)
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activity, business or undertaking’ of a CO storage site is arising from CO leaks from storage sites. The only EU-
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not just the injection of CO , but also its long-term level piece of legislation which could address this issue is
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stewardship so as to ensure that it does not leak and cause Directive 2003/87/EC of the European Parliament and
damage to the environment. The termination of injection of the Council of 13 October 2003 establishing a scheme
operations and the decommissioning of the site do not for greenhouse gas emission allowance trading within the
therefore amount to a termination of the economic Community and amending Council Directive 96/61/EC
activity, and the storage of the CO therefore remains an (Emissions Trading Directive), but CCS installations are
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economic activity. not currently included within its scope (although since 1
A further uncertainty in the application of the January 2008 it has been possible to ‘opt-in’ activities
Environmental Liability Directive to CO storage sites lies and installations not currently covered by the Directive
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in Article 17, which provides that the Environmental under Article 24). Proposals published earlier this year
Liability Directive shall not apply to ‘damage, if more than for amending the EU greenhouse gas emissions trading
30 years have passed since the emission, event or incident, scheme (EU ETS) are discussed below.
resulting in the damage, occurred’. If a CO storage site is
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closed in 2050 and then leaks in 2100 and causes damage The UK leads the way?
of a type covered by the Environmental Liability Directive,
what is the limitation period? Is it 2080 (that is, 30 years The UK is keen to be one of the leaders in the EU in CCS
after the storage site was closed) or is it 2130 (being the and on 19 November 2007 the Prime Minister announced
date 30 years after the leak that caused the damage)? a competition to develop a commercial-scale
There is also the issue of long-term leaks which do not demonstration CCS project involving power generation. 16
cause damage for many decades after they start. In all of In its Project Information Memorandum the Department
these cases it is not clear what is the ‘event resulting in for Business, Enterprise and Regulatory Reform (BERR)
the damage’ and what is the trigger for the sets out its approach to the long-term stewardship of CO :
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commencement of the 30-year limitation period.
English law does not generally provide any private Licensees of CO stores will be subject to a wide range
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remedies for damage to the unowned environment, so of responsibilities arising from their licence conditions,
recourse to public law would have to be made in the event such as monitoring, reporting, record-keeping and
of a leak from a CO storage site which caused local maintenance. In addition, if storage containment fails
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environmental damage. For example, if CO were to leak (eg if there is a leak or major escape of the stored
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into groundwater it may amount to ‘poisonous, noxious CO ) licensees may be exposed to a range of liabilities,
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or polluting matter’ for the purposes of sections 85, 161 which might include liabilities arising out of the
and 161A of the Water Resources Act 1991, and the Environmental Liability Directive (2004/35/EC),
Environment Agency could prosecute the site operator liability for damage caused to third parties, and the
under section 85, carry out remediation and recover the obligation to refund credits under the EU ETS.
cost under section 161 or serve a works notice under BERR accepts that it would be unreasonable for
section 161A. However, any of these actions would be at operators to retain permanent responsibility for stored
the discretion of the Environment Agency. It is hoped that CO and that it will be necessary for the state to take
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there will be greater protection for the unowned responsibility for the store once it has reached the
environment when the UK Government eventually end of its operational life.
implements the Environmental Liability Directive. 15
Commission announced that it was referring the UK to the European
Court of Justice for non-transposition, see http://europa.eu/rapid/
pressReleasesAction.do?reference=IP/08/1025&format=HTML.
15 At the time of writing Defra had conducted a second consultation 16 http://www.gnn.gov.uk/environment/fullDetail.asp?ReleaseID=331669
exercise on the transposition of the Environmental Liability Directive, &NewsAreaID=2&NavigatedFromDepartment=True.
which closed on 27 May 2008 see http://www.defra.gov.uk/corporate/ 17 Pages 38–39 s 5.6.
consult/env-liability-regs/index.htm. On 26 June 2008 the European 18 ‘Meeting the Energy Challenge: A White Paper on Nuclear Power’ CM
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