Carbon Capture, Storage and Removal

To meet the climate targets of the Paris Agreement, fossil fuel use must be phased out. However, oil, gas, and coal remain primary energy sources for many countries and will likely continue to play a significant role in the coming decades. A managed transition is therefore essential, where cleaner energy sources are developed in parallel to replace the reliance on fossil fuels.

Carbon Capture, Storage and Removal: Paving a Path to Paris Agreement Goals?

During this transition, climate technologies that reduce or remove emissions will be essential. Carbon capture and storage (CCS) is a set of technologies that enables the capture of carbon dioxide (CO2) from point source (for example industrial processes), followed by its transportation and permanent storage. The IPCC has recognised the importance of CCS for reducing greenhouse gas (GHG) emissions to meet the Paris Agreement targets, not only for energy but particularly for hard-to-abate sectors such as heavy industries (e.g. cement, steel, and chemical production). As the name suggests, emissions from these industries are hard to abate, and the implementation of CCS is therefore critical to prevent these emissions from reaching the atmosphere.

Conversely, existing CO2 can also be removed from the atmosphere and stored through technologies referred to as carbon dioxide removal (CDR – for a piece focusing on CDR, see the blog post written by Cabus and forming part of this Symposium). Such technologies include, for example, capturing CO2 directly from the air or from biogenic sources for storage which can lead to negative emissions. The importance of CDR has been equally recognised by the IPCC. Captured CO2 can furthermore be used in products (CCU).

It is important to recognise that CCS is one tool in the climate mitigation toolbox – it is not a silver bullet. It should be implemented alongside other technological options, such as shifting to less carbon-intensive fuels and products, increasing energy efficiency, and the expansion of renewable energy sources.

At COP29, multiple events centered on CCS and CDR are taking place, as stakeholders work to increase recognition of the industry within the forum to support its global deployment. As a relatively new industry, new policies and legal and regulatory frameworks are being developed at national, regional, and international levels, described below. Having robust regulatory frameworks is essential to ensure environmentally safe practices, with necessary stringent standards and requirements. Indeed, without legal frameworks, CCS and CDR cannot be deployed. That said, developing fit-for-purpose frameworks may take time, and laws and regulations may need to be amended as lessons are learned and gaps are identified. In this sense, CCS and CDR represent a truly dynamic area of law, gradually finding their place in the broader framework of climate change law.

Paris Agreement Crediting Mechanism and CCS

Article 6 of the Paris Agreement provides for the voluntarily cooperation of States in the implementation of Nationally Determined Contributions (NDC). Under Article 6.2, countries may transfer carbon credits earned from the reduction or removal of GHG to help other countries meet their climate targets (NDCs). Only one country can count the emission reduction towards its NDC, this is critical so that there is no double counting and global emission reductions are not overestimated. Article 6.4 further establishes a market for the trading of such credits under the oversight of a designated Supervisory Body – this mechanism is now known as the Paris Agreement Crediting Mechanism (PACM). Through the PACM, Parties can approve registered activities which mitigate emissions, represented in the PACM registry by A6.4ERs. Article 6 refers to both emission reductions and removals – thus, by inference, CCS technologies (including negative emission applications) are covered in both Articles 6.2 and 6.4.

The Article 6.4 Supervisory Body is tasked with developing the requirements and processes needed to operationalise the PACM. While the operalisation of the mechanism and resolving open issues have been slow-moving, new standards for methodologies and carbon removals have recently been adopted, and are important pieces of the puzzle in making the PACM operational.

There are already many voluntary carbon markets and credit mechanisms in place, but these voluntary markets often suffer from shortcomings and flaws due to, for example, limited verification standards, insufficient transparency, and inadequate methodologies to manage risks like carbon reversal. Such flaws undermine the credibility of carbon credits.

If successful, PACM can, among other things, help increase investments and support the deployment of CCS and CDR. PACM, and Article 6 more broadly, will create an avenue in international climate change law in which technologies such as CCS and CDR can be relied upon by States to cooperate in their efforts to reach their climate targets under the Paris Agreement. However, it is essential to consider the broader legal framework governing such technologies, as PACM serves primarily as a mechanism for trading credits. Advanced international and regional legal instruments are in place to regulate these activities, ensuring environmentally safe practices. These frameworks provide essential structures for CCS and CDR both generally and within the PACM, and must therefore be part of the conversation.

The remainder of this paper will highlight some of these frameworks, focusing on the scenario in which CO2 is captured and stored offshore as an example. This would apply for both CCS and CDR, provided the captured CO2 is subsequently stored offshore.

London Protocol and CCS: International Rules and Standards for Offshore CCS

As of today, the 1996 Protocol (London Protocol or LP) to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention or LC) is the most advanced international legal instrument directly regulating offshore CO2 storage. The instruments were adopted under the auspices of the International Maritime Organization, and seek to protect the marine environment from pollution. The London Protocol is a stand-alone agreement that supersedes the London Convention and will eventually replace it.

The London Protocol establishes criteria for offshore CO2 storage and rules for cross-border CO2 transportation. Numerous guidance documents have also been published to promote safe, long-term geological storage under the Protocol. For cross-border collaboration, the Protocol mandates that specific criteria be met before CO2 can be exported, including a formal arrangement or agreement between the involved states (see 2009 amendment and 2019 resolution for details). If a Contracting Party exports CO2 to a non-Contracting Party, the Contracting Party has to make sure that the receiving country has a national framework in place that provides the same level of environmental protection as the Protocol (this is a due diligence obligation). This requirement prevents Contracting Parties from circumventing their obligations by exporting CO2 to countries with less stringent standards.

Many countries which are developing national frameworks for CCS are drawing on the London Protocol as building blocks. While current or future Contracting Parties have a duty to implement the provisions at a national level, it is noteworthy that there is an increasing trend of non-Contracting Parties which may arguably never accede to the Protocol, are aligning their CCS frameworks with the rules and standards set forth in the London Protocol. This reinforces the status of the latter as the most advanced international legal instrument regulating offshore storage of CO2 and providing key learnings and standards in this respect. Furthermore, an alignment with the London Protocol enables non-Contracting Parties to receive CO2 from Contracting Parties, which would streamline project development and the due diligence process for the Contracting Party. Thereby, the London Protocol has established globally accepted rules and standards for offshore CCS.

Regional Developments and CCS: The OSPAR Convention and the EU CCS Regime

The 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) is a regional sea convention that also regulates offshore storage of CO2 for the Contracting Parties in the North-East Atlantic. The OSPAR Convention was amended in 2007 to allow for storage and effectively copied the legal criteria developed in the London Protocol. Other regional sea conventions aimed at controlling sources of pollution are also increasingly reviewed to assess their role in regulating and facilitating the storage of CO2. The London Protocol and these conventions were originally not adopted with storage of CO2 in mind (as offshore CCS was not a developed industry at that time), and because of this, may contain language that restricts storage of CO2 or represent unintentional ambiguities.

In the EU, actors and Member States benefit from an advanced legal framework for CCS. The EU’s CCS regime comprises, inter alia, the 2009 CCS Directive (which establishes a framework for environmentally safe geological storage of CO2), the emissions trading system (EU ETS), associated monitoring, reporting and verification rules, a framework for environmental liability, and requirements of environmental impact assessment. While the framework is advanced, it is continually reviewed and revised to address gaps that become apparent as more projects are developed. Moreover, the CCS Directive was conceived to be in compliance with the London Protocol. As such, for countries that are EU/EEA Member States, parties to the OSPAR Convention and the London Protocol are subject to a harmonised criteria for offshore storage.

National Developments and CCS: Enabling CCS Deployment and Collaboration

An increasing number of National Energy and Climate Plans (NECP) and NDCs now refer to CCS and CDR. Many of these countries are collaborating through various forums to deploy these technologies in their region. For example, several cross-border CCS initiatives and collaborations in Asia have commenced, where, inter alia, accounting, certification, and verification of CO2 reductions and removals between states are key. For example, the Carbon Certification for Cross-Border CCS Study launched by the Asia Natural Gas & Energy Association in 2023 aims to build a regional framework that will guide how CO2 emissions reductions are accredited and certified for cross-border CCS projects. It will be interesting to see how this develops in parallel with PACM, and whether PACM could provide methodologies, learnings, and standards that could be used for this purpose.

Conclusion

These developments collectively demonstrate efforts to integrate decarbonisation technologies into the wider international climate change regime as viable and important climate mitigation tools. The PACM can facilitate country-to-country trading of emissions reduction or removal credits, providing a market pathway in which CCS and CDR technologies can be used to reach NDCs. Parties to the Paris Agreement that are also Parties to the London Protocol are further bound by an advanced legal framework that provides criteria relevant to the deployment of the industry. The success of CCS and CDR within PACM is dependent on supporting robust legal frameworks that enable these activities and must therefore be looked at together. While this may be particularly true for Contracting Parties to the London Protocol, it is clear that the Protocol is increasingly being recognsied as the global standard for offshore storage of CO2 and cross-border transport. Its influence extends beyond these Parties, with an increasing number of non-Contracting Parties looking to the Protocol for inspiration when developing their national framework for CCS. Similarly, other environmental treaties and regional sea conventions have implemented the criteria from the Protocol. This fosters an important global and harmonised approach to the issue of offshore storage of CO2 and bilateral cross-border standards, ensuring that safe, long-term geological CO2 storage remains the foundation of regulatory standards.

The author is a legal advisor at IOM Law, a Norwegian boutique law firm specialising in carbon removal and reduction technologies. The views expressed in this article are solely those of the author and do not represent any institutional affiliation.