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1 1 1 1 13 33 32 2 (2008) 20 ELM : THE LONG-TERM STEWARDSHIP OF CARBON DIOXIDE STORAGE SITES : EVERS
activity covered by the EU ETS, and the existing the fight against climate change. However, it should not
monitoring and reporting rules do not allow installations be deployed without adequate legal safeguards being put
in the scheme to deduct captured and stored CO from in place to provide remedies in the event of CCS activities
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their reportable emissions. However, as mentioned above, giving rise to environmental damage. That said, decisions
under Article 24 of the Emissions Trading Directive, need to be made about the types of environmental damage
Member States can choose to ‘opt-in’ CCS activities during that the law should provide relief for. The common law
Phase II of the EU ETS (1 January 2008 to 31 December already provides remedies for local damage to health and
2012) and accordingly develop monitoring and reporting property (although somewhat unpredictably and
guidelines that take into account captured and stored unreliably). The EU has legislated in the form of the
CO . Environmental Liability Directive to provide for a regime
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According to the Commission’s proposal, CCS for the remediation of local environmental damage, and
installations will be included in the EU ETS from 2013. 33 in the UK statute may cover certain types of damage to
More specifically, provided in each case that the capture, the unowned environment. Finally, the extension of the
transport and storage activities relate to storage sites EU ETS to CO storage sites should provide a mechanism
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permitted under the Draft CCS Directive, participation for addressing the issue of leakages from closed CO
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in the EU ETS will be compulsory for: storage sites.
Although the law may now be extending itself to
(a) installations to capture greenhouse gases regulate the long-term storage of CO , the real issue is
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(b) pipelines for the transport of greenhouse gases who should bear the liability for the long-term stewardship
(c) storage sites for the geological storage of greenhouse of closed CO storage sites. The ‘polluter pays’ principle
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gases. is not easily applied to an activity which is meant to last
indefinitely, so state liability as proposed by the European
In accordance with the usual EU ETS rules, the operators Commission would appear to be the most pragmatic
of these CCS activities would need to monitor and report solution. Whether future generations should pay for the
their greenhouse gas emissions, and surrender EU remediation of current generations’ activities is a complex
allowances equivalent to their emissions. The Commission moral question, but the creation of a strict regulatory
proposes that there will be no free allocation of allowances regime which ensures that CO storage sites are properly
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for the capture, transport or storage of greenhouse gas selected, closed and decommissioned, backed up by ring-
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emissions (that is, allowances to cover emissions will fenced funds providing a financial resource to cover the
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need to be purchased). Allowances would not need to cost of any subsequent remediation minimises the risk of
be surrendered for greenhouse gases that are captured inter-generational inequity.
and stored. Obligations to surrender allowances would,
however, apply to leakage: ‘emissions trading allowances
must be surrendered for any leaked CO , to compensate
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for the fact that the stored emissions were credited under
the [EU ETS] as not emitted when they left the source’. 37
This could potentially give rise to liabilities for Member
States to surrender allowances for any greenhouse gases
which leak from closed CO storage sites once liability for
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those sites has transferred to the Member State.

Conclusions
The issue of who should bear liability for the long-term
stewardship of closed CO storage sites requires a careful
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balancing exercise between the interests of storage site
operators, government, regulators, taxpayers and the
environment. Whatever the moral, political and
environmental arguments for and against it, CCS does
remain one of the more promising mitigation measures in

however, is proposing that two allowances should be given under the
EU ETS for each tonne of CO2 captured and stored, in order to
incentivise CCS.
37 MEMO/08/36 ‘Questions and Answers on the Proposal for a Directive
on the Geological Storage of Carbon Dioxide’ (available at: http://
europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/36).

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