Deploying Carbon Capture and Storage 'Safely': The Scope for Member States of the EU to Adopt More Stringent CO2 Stream-Purity Criteria Under EU Law

Abstract

In several European countries, recent initiatives to launch carbon capture and storage demonstration projects faced strong local opposition over perceived health, environmental, and property risks, putting policy makers under pressure to provide additional safety guarantees. One way to increase safety standards is to strengthen the criteria in Article 12 of Directive 2009/31/EC on the geological storage of CO2, which is based on the London Protocol and OSPAR Convention requirements on the purity of the captured CO2 stream. The German and the Dutch draft legislation implementing Directive 2009/31/EC both provide for the possibility to impose additional CO2 stream-purity requirements. The paper examines the scope for EU Member States to adopt stricter CO2 stream-purity criteria under EU law. Based on an analysis of the relevant case law of the European Court of Justice and the content of Directive 2009/31/EC, it concludes that the scope for EU Member States to adopt stricter CO2 stream-purity criteria under EU law is likely to be narrow. The room for non-EU parties to the London Protocol and OSPAR Convention to adopt such stricter requirements might likewise be limited.

Keywords: climate change, carbon capture and storage, CCS, CO2 stream purity criteria, CO2 stream purity, Directive 2009/31/EC, CCS directive, minimum harmonization, Article 193 TFEU, exhaustion, EU environmental law