Introduction
Background
Cross border transport of CO2 under the London Protocol
Challenges for international CCS projects going forward
According to the report "Climate Change 2022: Mitigation of Climate Change", published 4 April 2022, carbon capture and storage (CCS) is essential to reduce carbon dioxide (CO2) emissions and reach climate goals. When establishing an international value chain for CCS, the industry will have to work within the international rules and framework. This article focuses on the restrictions on export of CO2 in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (the London Convention) and its 1996 protocol (the London Protocol), which are often collectively referred to as the "London Dumping Regime".
In an attempt to reduce CO2 emissions from plants and heavy industry, the Norwegian government and industry have for several years been working on the Longship project. This project is a full-scale CCS project. The initial focus is to capture CO2 at facilities on the eastern coast of Norway. There, the CO2 will be made into liquid form and collected by vessels, before being transported to an intermediate storage facility on the western coast of Norway. The CO2 will, upon arrival, be pumped through pipes to the Norwegian continental shelf where it will be permanently stored.
Carrying liquid CO2 by vessels is intended to be scalable, in the sense that it also may facilitate the extraction of liquid CO2 from several additional sources. The intermediate storage facility on the western coast of Norway, and the storage on the Norwegian continental shelf, also have additional capacity, and it is intended that the project will collect and store liquid CO2 from other industry actors, including from those outside Norway.
A challenge for international CCS projects is the international legal framework which applies to export and cross border transport of CO2. Many international rules and treaties are relevant in this respect, including the London Dumping Regime. The objective of the London Dumping Regime is to prevent marine pollution by dumping of wastes. This article gives a brief overview of the current status on export and cross border transport of CO2 under the London Protocol.
Cross border transport of CO2 under the London Protocol
According to article 6 of the London Protocol, "Contracting Parties shall not allow the export of wastes or other matters to other countries for dumping or incineration at sea". Hence, the London Protocol initially prohibits export of CO2 for storage as this is regarded as "incineration at sea". Previously, many have highlighted that this may cause significant difficulties for the creation of a market for international transport and storage for CO2.
The signatories to the London Protocol have also recognised this and, in 2009, an amendment to the London Protocol was proposed. The proposed amendment makes an exception to the prohibition of export of CO2, stating that "the export of carbon dioxide streams for disposal" may occur as long as "an agreement or arrangement" has been entered into by the countries concerned. Accordingly, the proposal stipulates that the countries involved in cross border transport of CO2 will have to enter into bilateral agreements or understandings.
The International Maritime Organization (IMO) must be notified of agreements or arrangements. Arrangements and agreements must also include "confirmation and allocation of permitting responsibilities" between the involved countries consistent with the London Protocol and other applicable international law. Moreover, if the CO2 is exported to a state which is not a party to the London Protocol, the agreement or arrangement shall include "provisions at a minimum equivalent to" the ones of the London Protocol.
The amendment to the London Protocol was signed by Norway in 2010. However, article 21 of the London Protocol requires a two-thirds majority vote which has not, as of yet, been obtained. As of 13 July 2022, the amendment has not been ratified, and it is not, therefore, formally in force. The lack of ratification has been sought resolved by the adoption of a proposal from Norway and the Netherlands for the provisional application of the 2009 changes.(1)
The resolution was adopted 11 October 2019 and allows for "the provisional application of the 2009 amendment pending its entry into force by those Contracting Parties which have deposited a declaration on provisional application of the 2009 amendment". Norway gave its declaration to IMO in 2020, the result being that Norway may enter into an agreement or arrangement on export of CO2.
As of 13 July 2022, no agreements or arrangements have been entered into. However, there has recently been an increased focus on facilitating for cross border CCS activities. On 5 April 2022, the Norwegian government issued a press release stating that the Norwegian and Swedish prime ministers had agreed to enter into an agreement or arrangement as soon as possible. In May 2022, the Northern Lights and the UK waste management and recycling company, Cory, also announced that they had entered into a memorandum of understanding to explore the opportunity for transport of CO2 from the United Kingdom to Norway. It is therefore also likely that Norway and the United Kingdom soon will start to work on an agreement or arrangement. Lastly, at a summit in Brussels in June 2022, the Norwegian Minister of Petroleum and Energy encouraged more countries to ratify the 2009 amendment and stated that Norway is eager to enter into bilateral agreements or arrangements in order to facilitate cross border transport.
Challenges for international CCS projects going forward
Although there are mechanisms in place which may ensure that the original prohibition in article 6 of the London Protocol is not a "show-stopper" in itself for cross border transport of CO2, the lack of a unified international solution remains a key challenge. In this relation, it is also worth noting that the London Protocol has been ratified by only 53 states, compared to the London Convention with its 87 states. Consequently, once the 2009 amendment to the London Protocol has been ratified, its application will be limited, unless it becomes regarded as generally accepted rules and regulations according to the 1982 United Nations Convention on the Law of the Sea.
In addition to the lack of a unified international solution, the requirement of bilateral agreements or arrangements may be viewed as a challenge for international CCS projects as it is not sufficient for countries to simply ratify the 2009 amendment and/or deposit the declaration for its provisional application.
For further information on this topic please contact Christian James-Olsen, Knut Magnussen or Lise Voraa at Wikborg Rein by telephone (+47 22 82 75 00) or email ([email protected], [email protected] or [email protected]). The Wikborg Rein website can be accessed at www.wr.no.
Endnotes
(1) Resolution LP.5(14) on the "Provisional Application of the 2009 Amendment to Article 6 of London Protocol".