Legal challenges with cross border transportation of CO2

According to the report “Climate Change 2022: Mitigation of Climate Change”, published 4 April 2022, carbon capture and storage (CCS) is essential in order to reduce carbon dioxide (CO2) emissions and reach the 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 “London Dumping Regime”, especially the London Protocol.

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 at 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 may collect and store liquid CO₂ from other industry actors, including from those outside Norway.

Northern Lights, which is responsible for developing and operating the transport and storage facilities in the Longship-project, and Cory, a UK waste management and recycling company, announced on 13 May 2022 that they have entered into a Memorandum of Understanding (MoU) to explore the opportunity to ship carbon from Cory’s energy from waste operations in London to Northern Lights’ carbon storage facilities in 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. This includes 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 often collectively are referred to as the “London Dumping Regime”. The objective of the London Dumping Regime is to prevent marine pollution by dumping of wastes. This article focuses on giving 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.

Agreements or arrangements must be notified to the International Maritime Organization (“IMO”), and shall 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 today’s date, the amendment has not been ratified, and it is therefore formally not 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 (Resolution LP.5(14) on the Provisional Application of the 2009 Amendment to Article 6 of London Protocol).

The above-mentioned 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 today, no agreements or arrangements have been produced. However, on 5 April 2022, the Norwegian government issued a press release stating that the Norwegian and Swedish prime ministers have agreed to put in place an agreement between the two countries as soon as possible. Due to the recent entering into of the MoU between Northern Lights and Cory, it is also likely that Norway and the United Kingdom soon will start to work on a bilateral agreement or arrangement.

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 an unified international solution remains a key challenge. In this relation, it is also worth noting that the London Protocol only has been ratified by 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 (UNCLOS).

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 in itself as it is not sufficient for countries to simply ratify the 2009 amendment and/or deposit the declaration for its provisional application. We await with interest further developments from the contracting parties as CCS-projects continue to mature.

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