REVIEW OF RELEVANT LEGAL AND REGULATORY FRAMEWORKS FOR CCS IN THE SOUTHERN AFRICAN REGION

Sachiko MoritaCounselEnvironmental and International Law Unit

June 1, 2011

A review of existing legal and regulatory frameworksInternational conventions Botswana, Mozambique, South Africa, and within the

regional electricity network, the Southern African Power Pool (SAPP)

Objectives : to try to identify gaps that may prevent the development of cross-boundary and national CCS projects, and to suggest approaches to address the identified gaps to remove the regulatory and legal barriers to CCS deployment.

REVIEW OF KEY LEGAL ISSUES

REVIEW OF KEY LEGAL ISSUESCovers eight key legal issues:

Classification and legal definition of carbon dioxide and its legal definition;

Jurisdiction over pipelines and reservoirs; Proprietary rights to cross-boundary sites and facilities; Regulatory and/or licensing (permitting) scheme; Long term management and liability issues arising out of

accidents or leaks in domestic and cross-boundary CCS projects; Third-party access rights to transportation networks, transit rights

and land rights with regard to pipeline routes; Regulatory compliance and enforcement schemes; and EIA and public participation and consultation.

INTERNATIONAL LEGAL FRAMEWORKS At present there is no international convention dealing specifically

with CCS. Certain conventions are of general relevance to the CCS context,

while other even regulate certain aspects of CCS. These conventions are related to climate change and maritime

environment. The table below shows whether or not Botswana, Mozambique and South Africa are parties to these agreements.

INTERNATIONAL LEGAL FRAMEWORKInternational Conventions

Status of ratificationBotswana Mozambique South Africa

United Nations Framework Convention on Climate Change (UNFCCC)

Kyoto Protocol

Non-Annex I Party

Party

Non-Annex I Party

Party

Non-Annex I Party

PartyUnited Nations Convention on the Law of the Sea (UNCLOS)

Not a party Party Party

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention)

London Protocol

Not a party

Not a party

Not a party

Not a party

Party

Party

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

Party Party Party

UNFCCC AND THE KYOTO PROTOCOL At COP 16 in Cancun, Mexico, in 2010, Decision-/CMP. 6

was adopted which decided that CCS in geological formations may be eligible as project activities under the Kyoto CDM, provided that the issues identified in Decision 2/CMP.5, paragraph 29, are addressed and resolved by the Subsidiary Body for Scientific and Technical Advice (SBSTA) in a satisfactory manner.

The next step is that the SBSTA is to prepare modalities and procedures for the inclusion of CCS in geological formations as project activities under the CDM, ready for the COP 17 in South Africa in 2011.

All three countries are parties to both UNFCCC and Kyoto Protocol

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA requires states “not to transfer, directly or indirectly, damage or

hazards from one area to another” (Article 195). No conclusive opinion as to whether CO2 constitutes a pollutant, nor whether it is considered a hazardous substance under UNCLOS. If CO2 is defined as a hazardous substance, it may prevent states from transporting CO2

from the capture site to an offshore storage site. UNCLOS does not address CO2 pipelines specifically, but it does

regulate the laying of pipelines in general terms and these rules could be extended to CO2 pipelines. The right to lay pipelines is subject to different conditions and different jurisdictions can apply depending on the area of the sea where the pipeline is laid. Transport by ship could also fall under the provisions of the Convention.

Mozambique and South Africa are parties to UNCLOS, but Botswana is not.

CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER 1972, (LONDON CONVENTION)

one of the first global conventions to protect the marine environment from human activities and has been in force since 1975

1996, the London Protocol to modernise the Convention. 2006, London Protocol amendments to regulate storage of CO2 in geological formations under the seabed.

Carbon dioxide streams may only be considered for dumping, if: disposal is into a sub-seabed geological formation; and they consist overwhelmingly of carbon dioxide; and no wastes or other matter are added for the purpose of disposing

of those wastes or other matter. An important step towards addressing the legal uncertainty surrounding

CCS and is in fact the first international law explicitly addressing carbon sequestration in international waters.

South Africa is a party to both the Convention and the Protocol. Botswana and Mozambique are not party to either agreement.

BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL Relevant, if CO2 is classified as hazardous waste

The Convention imposes strict requirements on transboundary movements of hazardous waste, such as prior written notice by the state of export to the competent authorities of the state of import and transit, consent and tracking of waste movements.

The Convention places outright bans on the export of hazardous wastes to certain countries.

All three countries are parties to the Convention

COUNTRY ANALYSIS

Issues1. Legal Definition of CO22. Long-term liability related to CCS 3. Environmental impact assessment and public consultation

Preliminary observations No dedicated legislation at national level related to CCS No explicit reference to CCS Rely on general rules and concepts relating to the relevant

issues such as pollution control and liability

Legal Definition of CO2

LEGAL DEFINITION OF CO₂BOTSWANA Atmospheric Pollution (Prevention) Act (APA)

CO2 is not expressly included under the list of “noxious or offensive gases.” However, such gases include “any other gas, fumes or particular matter prescribed as noxious or offensive gas for the purposes of the Act.”

Waste Management Act (WMA) CO2 may be characterized as a “waste,” defined as

“undesirable or superfluous by-products, any residue or remainder of any process or activity or any gaseous, liquid or solid matter.”

LEGAL DEFINITION OF CO₂MOZAMBIQUE Regulation on Waste Management (RWM)

defines “Hazardous Waste” (HW) as containing risk characteristics due to their flammable, explosive, corrosive, toxic, infectious or radioactive nature, or due to the presence of any other characteristic that poses danger to life or health of humans and other living beings and to the quality of the environment.

Risk characteristics of HWs include, among others “substances consisting of compressed gases, liquefied or under pressure. These substances are gases which are hazardous by virtue of being compressed or liquefied, dissolved under pressure or refrigerated.”

Based on (i) the definition of HWs, and because CO2 is known to affect the quality of the environment; and (ii) the fact that CCS involves carbon compression and liquefaction, which could make it potentially dangerous, CO2 may be treated as a HW

LEGAL DEFINITION OF CO₂SOUTH AFRICA National Environmental Management: Waste

Management Act (NEM: WA) “waste” as “any substance”; “that is surplus, unwanted,

rejected, discarded, abandoned or disposed of”; “which the generator has no further use of for the purposes of production;” and, “that must be treated or disposed of.”

SANS 10228: 2006 deals with the identification and classification of dangerous

substances and goods for transport, and it classifies CO₂ as a “Class 2 dangerous good” (Division 2.2 of Class 2), which is a gas that is non-flammable and non-toxic and that is also either asphyxiants or are oxidizing.

Long-term liability related to CCS

LONG-TERM LIABILITYBOTSWANA Environmental Impact Assessment Act (EIA Act)

the person responsible for the negative environmental impact shall rehabilitate the affected environment to its normal function.

Mines and Minerals Act (MMA) the holder of a license is obliged to treat pollution or contamination of

the environment. He/she shall also rehabilitate the mining area from time to time. The holder is responsible for the maintenance of top soil during and at the end of mining operations.

Where Government carries out restoration on behalf of the holder, he/she shall reimburse the Government any costs incurred. Non-compliance with the provisions of MMA is a criminal offence with penalties.

Q: What if the responsible party cannot be identified? Is the responsibility transferred to the relevant (government) authority?

LONG-TERM LIABILITYMOZAMBIQUE Environmental Law (EL)

requires persons conducting certain activities to meet their liability obligations, including the duty to indemnify the injured parties, regardless of fault, for damages to the environment or for causing temporary or definitive interruption of economic activities.

also provides for proactive action by the State to mitigate or eliminate any serious damage to the environment. In such a case, the State is entitled to recover, from the person causing the damage, all costs incurred in the adoption of said measures.

Q: no provision on transnational liability – who is liable?

LONG-TERM LIABILITYSOUTH AFRICA National Environmental Management Act (NEMA)

imposes a duty of care on every person who causes, has caused or may cause significant pollution or environmental degradation to take reasonable measures to prevent such pollution from occurring, continuing or recurring.

also requires that, in so far as harm to the environment is authorised by law or cannot reasonably be avoided or stopped, measures should be taken to minimise and rectify such pollution or degradation of the environment.

LONG-TERM LIABILITY SOUTH AFRICA (continued) NEM:WA

Land deemed to be contaminated may be declared a "remediation site" and a remediation order may be handed to the owner of the land. Upon receipt of such order, the landowner must take the necessary steps set out in the order to remediate the land.

These contaminated land provisions have far-reaching implications in the event that stored CO₂ leaks into land adjacent to the storage site. “Contaminated land” provisions have retrospective effect. These provisions also apply to contamination that originated on land

other than the land which becomes contaminated, arises or is likely to arise at a different time from the actual activity that caused the contamination, or arises through an act or activity of a person that results in a change to pre-existing contamination.

Environmental Impact Assessment and Public Consultation

ENVIRONMENTAL ASSESSMENT AND PUBLIC CONSULTATIONBOTSWANA EIA Act

If the Department of Environmental Affairs decides that an activity is likely to have a significant adverse environmental impact, an EIA is required and an applicant shall also submit a statement. The statement shall cover, among others: description of proposed activity and its purpose; outline of alternative sites of proposed activity; and other information. The statement submitted may be subject to public review, and public comments must be taken into consideration in the decision-making.

For an activity likely to have significant adverse environmental impact in another country, the Department is compelled to consult the Minister, who shall inform the country about the intended activity through Minister of Foreign Affairs. Q: Applicability to CCS

ENVIRONMENTAL ASSESSMENT AND PUBLIC CONSULTATIONMOZAMBIQUE EL

Requires an environmental license for any activity which may cause significant environmental impact.

Regulation on the Environmental Impact Assessment Process classification of activities into categories (A, B and C) by the potential

risk of environmental damage they present. as part of an environmental assessment, a project applicant must

conduct public consultations with all stakeholders directly or indirectly affected by the activity in question, to provide information to all stakeholders, and to collect their opinions and suggestions.

The consultation process, from the project design phase until the submission of the EIA, is the responsibility of the project applicant. Government is responsible for the said consultation from the revision of Terms of Reference until the issuance of environmental licenses.

Q: Applicability to CCS

SOUTH AFRICA NEMA

Regulates the “listed activities” that require environmental authorization prior to their being undertaken

3 lists of NEMA listed activities (published in June 2010) – different scope of assessment carried out for each list

Detailed provisions for public participations in Chapter 6 of NEMA 2010 EIA Regulations, including register of interested and affected parties and their right to comment on applications of environmental activities, as well as the requirement that comments of interested and affected parties to be recorded in reports submitted to competent authority.

Q: Applicability to CCS

ENVIRONMENTAL ASSESSMENT AND PUBLIC CONSULTATION

OBSERVATIONS AND RECOMENDATIONS Legal definition of CO2

The relevant legislation in the three countries suggests that CO₂ would most likely be classified as: “noxious or offensive gas”; or certain types of “waste”; or “a dangerous good” for the purposes of transport.

Would be helpful for applicable legal instrument to specifically define CO2 in the context of CCS activities

OBSERVATIONS AND RECOMENDATIONS Long-term liability

General environmental liability provisions already exist in each country’s legislation. Might be helpful if the existing legal frameworks could further clarify the liabilities of the different actors involved in each aspect of CCS activities

OBSERVATIONS AND RECOMENDATIONS EIA and public consultation

The relevant legislation in all three countries appears to have the basic key elements of EIA process and public consultation. However, if the countries so choose, it would be advisable that the legislation specifically regulates activities relating to the capture, transport, injection and storage of CO2

THANK YOUContact:

Sachiko Morita: smorita@worldbank.org