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«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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Options and Proposals for the International Governance of Geoengineering the objective of the Directive to limit SO2 emissions (Article 1) 411 and the duty to adopt national programmes for the progressive reduction of national emissions (Article 6), but on strictly legal terms, it is permissible as long as it does not substantially contribute to exceeding the national emission ceiling. As already stated in the context of public international law (see section 5.1.3), this depends on the amount of SO2 injected into the stratosphere. If sulfate aerosol injection would indeed substantially contribute to exceeding the national emission ceiling, it may be forbidden or restricted as part of the policies and measures to be included in the national programmes mentioned above. Accordingly, sulfate injection may also be permitted under the 39th Federal Immission Control Ordinance which transposed the Directive into German law. 412 The applicability of Directive 2001/81/EC does not exclude the application of EU legislation regulating SO2 emissions from specific sources, as evidenced by recital 19 of the Directive. The IPPC Directive and the succeeding IE Directive 413 list SO2 and other sulphur compounds as pollutants for which emission limit values shall be fixed. 414 However, neither airplanes nor installations for injection of substances into the atmosphere on planes, ships or on the ground are listed in the categories of installations enumerated in Annex I of both directives. Under German law they may, however, be subject to the Federal Immission Control Act as installations not subject to licensing, if they correspond to the definition of ‘installation’ in section 3 (5) Federal Immission Control Act. According to section 1 (1) of this Act, the atmosphere is protected, which also contains the outer layers, e.g. the stratosphere with the ozone layer. 415 While installations on planes, ships or on the ground may be considered as installations according to section 3 (5) Federal Immission Control Act without any problem, the same applies to planes only if they are not used for passanger traffic, but e.g. as transport means for a plant or as working tool. 416 According to section 22 of the Federal Immission Control Act, installations not subject to licensing shall be constructed and operated in such a way that harmful effects on the environment are, with the use of the best available techniques, prevented or kept to minimum if unavoidable. According to point 1 (5) of the Technical Instructions on Air Quality Control, the immission limit values in point 4.4.1 for SO2 may be used as basis for determining whether the requirements of section 22 Federal Immission Control Act are complied with. It has to be pointed to the fact, though, that the regulations of the Federal Immission Control Act are devised for emissions as side-effects of certain activities, not for emissions as main intention of an activity in order to influence the composition of the atmosphere. This may be an argument for regulation going beyond a mere amendment of that Act.

Finally, the injection of sulfate aerosols into the stratosphere by airplanes is generally forbidden by section 7 (1) of the Federal Air Traffic Ordinance, according to which it is not permissible to

–  –  –

dump or discharge objects or substances out of or from aircraft. However, the competent authority may allow for exceptions if any danger for human safety or property is excluded. 417 5.2.4 Carbon Capture and Storage (CCS) In the context of geoengineering, CCS is of special interest. First, there is divergence of opinion on CCS as a form of geoengineering (see above); second, it is more developed, both technically and legally, than other CDR techniques. 418 Turning to the legal development of CCS, the EU established a CCS framework in Directive 2009/31/EC (`CCS Directive´) as part of the Climate and Energy Package in 2009. The CCS Directive primarily establishes a legal framework for the environmentally safe geological storage of CO2, to contribute to the fight against climate change (Art. 1 (1)). It requires the

following main elements to provide for safe storage:

• Storage permit: The operation of a storage site is not allowed without a storage permit.

The competent authority will only issue such a permit if, after consideration of the assessment of the expected security of the storage, she is convinced that there is no risk of leakage

• Reporting and inspections: The operator has to carry out monitoring at least once a year, and the competent authority has to carry out routine inspections at least once a year and non-routine inspections under certain conditions

• Corrective measures: In case of leakage or significant irregularities, the operator and the competent authority shall take the necessary corrective measures

• Closure and post-closure obligations: The operator remains responsible for monitoring, reporting and corrective measures after the storage site has been closed, on the basis of a post-closure plan

• Financial security: As part of the application for the storage permit, the operator has to present financial security in order to ensure that all obligations arising under the permit can be met

• Liability provisions: For the operation of the storage site, the operator is liable according to the Directive on Environmental Liability (2004/35/EC), which for that aim has been amended





• Transfer of responsibility: After a minimum period of at least 20 years and after the site has been sealed and the injection facilities removed, the competent authority shall take over responsibility of the site, if all available evidence indicates that the stored CO2 will be completely and permanently contained.

According to Article 2 (2), the Directive does not apply to geological storage of CO2 with a total intended storage below 100 kilotonnes, undertaken for research, development or testing of new products and process. Furthermore, the storage of CO2 in the water column is not permitted (Article 2 (4)). In cases of transboundary storage sites or complexes (as well as transboundary transport of CO2), the competent authorities of the Member States concerned Accordingly Czarnecki (2008), p. 136, for the ‘vaxination’ of clouds.

Srivastava (2011), p. 190.

Options and Proposals for the International Governance of Geoengineering shall jointly meet the requirements of the CCS Directive and other relevant Community legislation (Article 24).

Other aspects of CCS, especially relating to capture of CO2, are regulated by other legal instruments, in particular Directive 2008/1/EC concerning integrated pollution prevention and control (IPPC Directive), Directive 2001/80/EC (Large Combustion Plant Directive) and Directive 85/337/EC on Environmental Impact Assessment (EIA Directive), which to that aim have been amended by the CCS Directive (Art. 31-37). To incentivise CCS, Article 12 (3) lit. a ETS Directive states that allowances do not have to be surrendered for emissions captured and stored according to the CCS Directive.

The IPPC Directive and its successor Directive 2010/75/EU on industrial emissions (IE Directive), which will enter into effect in 2013, lay down framework rules for the national permitting systems with regard to certain categories of large industrial installations listed in Annex I.

These rules especially comprise the fixing of emission limit values based on the best available techniques. The CCS Directive includes an amendment of Annex I to the IPPC so as to include capture of CO2 streams from installations covered by this Directive for the purpose of geological storage according to the CCS Directive. Of particular interest is Article 9a of the Large Combustion Plant Directive, corresponding to Article 36 of the IE Directive, according to which operators of plants with a rated electrical output of 300 megawatts or more must assess whether storage sites and transport facilities are available and whether CO2 capture retrofitting is feasible. If this is the case, the operator has to provide suitable space on the installation site for the equipment necessary to capture and compress CO2. Thus, large combustion plants have (already) to be constructed ‘capture-ready’, although CCS is not (yet) compulsory according to the CCS Directive.

It has to be noted that point 1 of Annex 1 of the IPPC Directive and Article 2 (2) of the IE Directive exclude research activities from their respective scope of application. Thus, geoengineering techniques would be excluded as long as they are still at the research stage.

The EIA Directive requests Member States to make an environmental impact assessment for projects which are likely to have significant environmental impact effects. Directive 2001/42/EC foresees a corresponding obligation for plans and programmes, thus for an earlier planning stage as compared to specific projects. These requirements, culminating in an environmental report, are procedural in nature and shall be taken into account in the administrative decision on the application for a permit or a plan or programme. Basically, both Directives provide for the participation or consultation of administrative bodies dealing with the protection of the environment and the possibility for the public concerned or interested to express an opinion.

As a result, the possible environmental impact of certain projects, plans and programmes are highlighted before the final decisions are taken.

Projects for which a mandatory assessment is needed are listed in Annex I, projects for which only conditional assessment is requested are listed in Annex II. In the context of CCS, pipelines for the transport of CO2 streams for the purposes of geological storage, storage sites, installations for the capture of CO2 streams for the purposes of geological storage have been included partly in Annex I, partly in Annex II. 419 Directive 2004/35/EC (Environmental Liability Directive) basically provides for the restoration of the environment where it has been damaged in a certain way by certain types of activity. As a rule, liability rests upon the polluter. There are, however, a number of limitations to the See for more details points 16, 23 and 24 of Annex I and points 3 (j), 10 (i) of Annex II.

Options and Proposals for the International Governance of Geoengineering obligation of restoration. Of importance in the context of geo engineering is the possibility for Member States to decide whether they allow the defence for development risks which intend to limit economic operator´s risk in areas of new technologies (Article 8 (4) lit.b). As already mentioned above, the operator of a storage sites according to the CCS Directive is liable for damages covered by the Environment Liability Directive (point 14 of Annex III).

Other EU legislation related to CCS of minor importance is not analysed in this study.

Until now, EU Directives on CCS have been transposed into German law only to a small extent, e.g. concerning the exclusion of CO2 storage for CCS purposes in the new Federal Closed Substance Cycle Management Act. In particular, the CCS Directive has yet to be transposed.

After the failure of a bill on CCS regulation in 2009, the Bundestag approved a CCS Act in 2011. 420 The scope of the CCS Act is limited to demonstration projects, to be applied for before the end of 2016 and allowing for annual storage capacities of an individual site not exceeding 3 million tons of CO2 per year and 8 million tons of CO2 in total. The federal states may designate areas where CCS pilot projects are allowed and areas where they are prohibited. The government shall report on the experience gained by the end of 2017, whereupon the Bundestag may decide on further legislative measures. The Bundesrat rejected the bill in September 2011, whereupon the Federal Government and the Bundesrat invoked the mediation procedure to find a compromise, also in order to avoid an infringement procedure for non-implementation of the CCS Directive. The length and uncertainty of result of this procedure has already led to the withdrawal of a CCS pilot plant planned in Jänschwalde (Brandenburg) by Vattenfall. Recently, Bundestag and Bundesrat reached a compromise, which consists in reducing the storage capacity to 1.3 million tons of CO2 per year and storage site and in enabling the Bundesländer to prevent storage sites on their territory under certain circumstances.



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