Dr Meredith Gibbs, prominent environment Partner at HWL Ebsworth, has undertaken significant research to identify the key features of an effective enforcement regime for the underground storage of carbon dioxide (CO2). A copy of her report, Effective enforcement of underground storage of carbon dioxide is now available here.
This issue is important because the perception of an effective enforcement regime that ensures the safe and secure storage of carbon dioxide will be crucial in increasing public and industry confidence in carbon capture and storage (CCS) as an important technology for a low-carbon future.
Dr Gibbs’ study was the result of research she undertook as the inaugural Legal Fellow (Asia-Pacific) of the Global CCS Institute over the first half of 2016. Her study concluded that an effective enforcement regime for underground storage of CO2 has the following characteristics:
- Comprehensive obligations that address the key risks of underground storage of CO2;
- Comprehensive monitoring and verification (M&V) requirements;
- Enforcement mechanisms that are risk-based, layered and flexible, and which are grounded in science and fact-based decision making; and
- A clear allocation of roles and responsibilities.
Dr Gibbs assessed the extent to which five legal jurisdictions within Asia Pacific met these key characteristics: the Commonwealth of Australia (offshore), the State of Victoria (onshore), Japan (offshore), Malaysia (offshore) and China (onshore) and concluded:
- Australian and Japanese legislators have covered the most ground on developing effective enforcement regimes within their CCS-specific regulatory frameworks; and
- China and Malaysia, while currently possessing a strong foundation of relevant environmental and energy legislation, have further opportunity to develop CCS-specific legislation, and in particular effective enforcement of underground CO2 storage, to help accelerate the deployment of CCS projects.
Dr Gibbs said, “Even in the well developed regimes of Australia and Victoria, some critical issues around monitoring and verification (M&V) of stored CO2 remain unresolved.
My research revealed strong concerns about the ability of early-mover projects to meet the prescriptive M&V requirements set out in the Australian and Victorian regimes but also concern that industry may be subject to unwarranted enforcement action due to inadequate monitoring.
There is a need to ensure that M&V obligations match technical capabilities and are cost-effective. Regional baseline environmental assessments could assist in areas where multiple storage sites could be developed in the future.
Ultimately if potential investors and operators are not confident that regulatory requirements can be met, the legislation itself may act as a barrier to development of the CCS industry.”
In her report, Dr Gibbs makes a number of recommendations to address these concerns and to improve the enforcement regimes in countries studied.
“A balance must be struck between achieving the certainty necessary for investor and operator confidence in CCS and enforcement consistency on the one hand”, Dr Gibbs explains, “and the flexibility required to respond to changing circumstances and technical advances, particularly given the long timeframes that CO2 will be stored.
It is crucial that the public have confidence that effective enforcement mechanisms are available and can be used effectively and appropriately, based on scientific evidence.”
If your organisation requires environmental law advice on any matter, Meredith and her team would be pleased to assist.