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CCS and issues of post-injection liability

This article explores the issue of post-injection liability for CO2 storage sites and the legal responses in the EU and the Netherlands. It discusses the duty to pay for corrective measures and compensation for harm to the environment, personal injury, and damage to business interests. The article proposes channelling post-injection liability to a single entity for more legal certainty and to transfer site responsibility to the competent authority. It also highlights the need for clarity in the EU Directive on CCS regarding post-injection liability for closed CO2 storage sites.

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CCS and issues of post-injection liability

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  1. CCS and issues of post-injection liability Mark Wissink m.h.wissink@rug.nl

  2. Post-injection liability • Liability for harm caused during geological storage of CO2 for an indefinite period of time • A worst case scenario • What if x years after closure of site leakages of CO2 cause • harm to the environment • personal injury • damage to business interests • “Fraction retained in appropriately selected and managed geological reservoirs is • very likely to exceed 99% over 100 years, and • likely to exceed 99% over 1000 years” (IPCC Special Report on Carbon dioxide Capture and Storage (2005))

  3. Legal responses in EU and the Netherlands 1. A duty to (take and) pay for corrective measures to stop leakages • Proposal for an EU Directive on CCS 2. A duty to (take and) pay for corrective measures regarding harm to the environment • EU Directive on environmental liability 3. A duty to compensate for damage of persons/business interests • depends on different national laws • existing rules are not tested for a CO2 leakage-scenario =>

  4. A duty to compensate for damage: The Netherlands • General fault based liability (e.g. infringement of permit rules) • Special risk based liability rules in articles 6:175-177 Civil Code • for dangerous substances -> is CO2 dangerous? • for waste disposal sites -> is CO2 site a waste disposal site? • for mining activities -> is leakage of CO2 a blow out?

  5. A special risk based liability rule for CO2 storage sites, channeling liability to one entity • creates more legal certainty • may be tailored to meet needs • may allocate costs (why should victims bear the financial burden of unforeseeable events?) • might provide (former) operator with clear risk horizon • might provide potential claimants with identifiable & financially strong defendant • would fit in with idea of transferring site responsibility to competent authority

  6. Proposal for an EU Directive on CCS, Article 18: • After closure of the site and if certain conditions are met `the responsibility for the closed site, including all ensuing legal obligations, shall be transferred to the competent authority’ • Operator remains liable for pre-transfer events towards third parties? • Competent authority becomes liable for post-transfer events towards third parties? • Can national law determine liability towards third parties?

  7. The way forward I. The EU Proposal should make clear whether/to what extent it covers post-injection liability for closed CO2 storage sites II. Post-injection liability should be channeled (in the law of the Netherlands) to a single entity

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