The Legal Framework for Development of CCS

The Legal Framework forDevelopment of CCSGordon McCreathPartner, Planning & EnvironmentIPA CCS Conference – 1 September 2011

The evolving legal framework..in a flash• A busy year!• An overview of Scotland and England,putting principal regimes together• Gaps in the framework? Issues stillrequiring work...• ...and thoughts on solutions, drawing onexperience consenting other majorinfrastructure projects

A busy year!• Storage Licensing Regs: in force 1 October 2010• Consultation on third party access: December 2010• EMR consultation: December 2010• Energy Act CO 2 Storage Scotland Regs: 1 April 2011• Storage Licensing Scotland Regs: 1 April 2011• EIA Scotland Regs: 1 June 2011• OSPAR Decision ratified: 23 June 2011• Env’l Liability Amendment Scotland Regs: 25 June 2011• EMR White Paper: 12 July 2011• EIA Regs: 24 August 2011• Environmental Permitting Amendment Regs: 1 Oct 11• PPC Scotland Amendment Regs: 4 October 2011• Commission Guidance Docs on implementation of CCSD• And there’s more...

International• London Convention 1972 on Prevention of Dumping ofWaste at Sea and Protocol – Feb 2007– Injection: Amendment to annex therefore no need forratification– Transboundary transport: body, so ratificationrequired. 27 out of 40 states required.• OSPAR for Protection of the Marine EnvironmentConvention decision – June 2007– Ratification by 7 states on 23 June – Denmark

Europe• CCS Directive: 25 June transposition• EU ETS Directive• PPC Directive• Waste Framework Directive• Marine Strategy Directive• Water Framework Directive

UK - capture• Readiness – s36 guidance, NPSs,Scottish policy• Capture:– Electricity Act s.36/PlanningAct 2008– PPC ScotlandRegs/Environmental Permitting– SMs/IPC– SEPA/EA

UK – onshore transport• Planning: 1997 and 1990 Acts– Local authority– For change of use from Gas Acts pipeline• Pipeline Act 1962/Planning Act 2008– >10 miles: onshore pipeline construction authorisation– SMs/IPC• PPC/EPRs: compressor site– SEPA/EA

UK – offshore transport• Petroleum Act 1998– pipeline works authorisation required for constructionand/or use of pipeline in territorial sea and continentalshelf– DECC/SMs in STWs• Navigation dealt with under EA08, not marine licences• Marine planning and conservation• Crown Estate: pipeline lease• Transport: Storage of CO 2 (Access to Infrastructure)Regulations 2011: laid, to be considered on Monday

UK - exploration and storage• Energy Act 2008/EA08(Storage of CO 2 )(S) Regs 2011– Licence required for offshore temporary and permanent storageand exploration for appropriate sites– UK Territorial waters and STWs: 0-12nm– Gas Importation and Storage Zone: 12-200nm– SMs for STWs only; DECC for the rest (Wales and NI)• Storage of CO 2 (Licensing etc.) Regs 2010• Storage of CO 2 (Licensing etc.) (Scotland) Regs 2011• Crown Estate: Agreement for Lease and Lease

UK – other offshore regimes• All applied to offshore CCS activitiesby Energy Act 2008 (ConsequentialModifications) (Offshore Env’l Prot’n)Order 2010 e.g.– Environmental permitting– EU ETS– EIA– Habitats– Discharges to sea and pollutionincidents– REACH

UK – decommissioning and transfer• Decommissioning: Energy Act 2008– Petroleum Act decommissioning provisions apply to CO 2storage installations• Transfer of responsibility: CCS Directive– Financial security covers til transfer of responsibility– Monitored on annual basis– Transfer with financial contribution– Storage of CO 2 (Termination of Licences) Regulations2011 transpose

Some issues...• Streamlining of consents and regulators:– No time to streamline in short to medium if UK and EUcompetition timescales are to be met– Some multiples are inevitable with a pipeline project...– Fit for purpose? Detailed testing required– Is a verbal commitment by regulators to co-operateenough? One stop shop and guidance required cf IPC?– We will soon find out

Some issues...• Monitoring board:– Quarterly meetings– Agreed consenting timeline– Monitoring for and remedying slippage: enforcement?• Considering single ES– Do you have the choice?• Considering effective community engagement• Lessons to be learnt from other jurisdictions

Pinsent Masons - consenting majorprojects• Olympics Delivery Authority – London 2012 Olympics– >50 applications• Earls Court• Local authorities – Hinkley Point C New Nuclear build– Early works, port, accommodation, road upgrades,complex section 106 package, DCO• Nu-Generation: Sellafield New Nuclear Build• Offshore wind– 10 projects, inc Walney Extension 750MW• Thermal generation project under IPC• Plus other confidential projects

Some issues• Is CO 2 waste?• Oil and gas interaction• Financial security and financial contribution– not a good experience thus far– annual monitoring – a good thing– types of instrument– width of scope– how to quantify both?

Some issues• Transfer of liability– Criteria– All heads of liability?– Only if no fault• Includes negligence, deceit or a failure to exercisedue diligence• But not expressly ‘cases of deficient data’ fromCCSD

Conclusions• The framework is there• Now the gaps need to be filled and the framework testedin detail – learning by doing• For Scotland, that requires involving the right people andlooking to right places for best practice on consentingmajor projects, including close to home

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