A conversation with an editor of a new book on legal and regulatory issues - part 2 of 2

This blog post is the conclusion of the interview we started last week with Professor Richard Macrory from University College London (UCL), who is one of the editors of Carbon Capture and Storage: Emerging Legal and Regulatory Issues.

You can read part 1 of the interview here.

Is there consensus developing on the conditions of transfer of liability?

Not at all! The criteria expressed in the legislation differs considerably - some, such as the EU Directive, for example, on a literal reading requires an almost unobtainable degree of certainty about non-leakage. Other laws give much more discretion to the government and use words such as 'likelihood' or 'risk.' Similarly, what liabilities are transferred differs considerably and it is clear that it will be rare that industry can absolve itself of every single liability.

The concept of transferring long term liabilities back to the state is not unknown in environmental law (it happens in Europe, for example, with closed waste landfill sites) but it remains a politically sensitive issue. My own view is that we are unlikely to see any greater harmonisation of national laws on this topic - each law reflects very much the politics of the state or region in question.

What other issues are proving significant?

For some countries the ownership of the pore space is problematic, especially where storage under land rather than the sea-bed is likely. Is it the owner of the mineral rights, the owner of the land, or the State? Case-law in mining law, for example, suggests that Canada and the United States have diametrically opposed solutions to this important question.  My own view is that this is an area where legislation has to make absolutely clear the position rather than leaving it to the uncertainties of ordinary property law. This is the approach that Alberta, for example has taken.

What about public participation?

It is clear from a number of the chapters of the book that this is an increasingly significant area for CCS.  We have already seen public controversies in a number of European countries where demonstration sites have been proposed. Law itself cannot secure public trust and confidence in new technologies, but it can play a vital role in ensuring that procedures for decision-making are as open and transparent as possible. Again, I don't think it is possible to have a common set of provisions that fits all jurisdictions, but any proposed CCS law that doesn't at least reflect on this question is likely to be defective. There are lessons to be learnt by government and industry from previous environmental controversies such as those involving waste disposal sites or GMO trials. Particularly important is not to let experts assume they know the issues the public are concerned about. 

What about emerging economies?

We commissioned chapters in our book focusing on the policy context for CCS in India and China. But it is still early days for specialised CCS legislation in those countries and others such as Brazil, South Africa and Indonesia. I am encouraged that these jurisdictions are clearly interested in legal developments today and want to learn from best practice. But at the end of the day you cannot simply 'copy and paste' into national law - the CCS legislation being developed in each jurisdiction will and should reflect, often in quite subtle ways, national regulatory practice.

And what are the key future developments for CCS law, in your view?

There is a range of important issues emerging that will need development and clarification. I have already touched on long term liability. Coupled with this is the nature of any financial security to be provided upfront by the operator. Again there are lessons to be learnt from the experience to date in areas such as waste disposal. For those countries or regions where CCS has been linked to an emissions trading system (such as the European Union), the mechanisms for ensuring recovery of any benefits gained under an emission trading system should there be a later leakage are quite complex.

A similar issue is emerging in the context of CCS and the Clean Development Mechanism. Above all, I think it will be important to ensure that there are effective legal linkages in the whole cycle of CCS law - capture (including the question of performance standards for CO₂ producing plants), transport and storage. A more integrated legal approach will be that much more robust.

But I am conscious all the time that there is a very fine balance to be drawn. Our own programme is neutral on the technology of CCS itself - as lawyers we look for a system which will not unwittingly stifle the development of new technology but at the same time will secure public confidence that concerns and risks are being adequately addressed. Equally, there are many issues in the field that law by itself cannot resolve.

Richard this book came up at a conference that the Global CCS Institute supported. Do you foresee future collaboration between your Programme and the Institute?

We were delighted that the Institute helped fund our initial conference, and even more so that the Institute wants to help in promoting core messages in the book. Frankly it has more imaginative techniques in communication and a far wider audience than most Law Faculties, including ours. We look forward to future cooperative work. At the very least I am sure that in a few years time it will be right to revisit the legal assessment we achieved for the book, and hopefully involve many more jurisdictions - I can see a second edition on the horizon!

Thanks for your time, Richard. I would like to encourage readers, especially legal experts, to share their thoughts about the book. Is there anything else in this space you really need? We could always track down bloggers to contribute content addressing gaps in knowledge.

Institute Members can buy the book at a discounted rate by following the link below.