What legal framework must be considered for CO2 storage in the subsurface of the German North Sea?
The sea and the seabed (including the deeper subsurface) are divided into legal areas with different competences. The further one moves away from the coast towards the high seas, the less authority (sovereign rights) the state has. While internal waters (the marine waters located landward of the baseline) and territorial sea (the first twelve nautical miles of the sea measured from the baseline) belong to the national territory and are therefore subject to state sovereignty, the Federal Republic of Germany may, by international law, exercise only individual sovereign rights and sovereign powers in the Exclusive Economic Zone (EEZ) extending up to 200 nautical miles from the baselines and on the continental shelf (i.e., the submarine extension of the land territory).
These relate primarily to the management and exploitation and living and non-living resources, but also to the construction and operation of facilities and structures, and to marine environmental protection. Within Germany, the division of legislative and administrative responsibilities is governed by the system of competences laid down in the Basic Law. There is no schematic allocation of corresponding powers to the Länder (with regard to internal waters and the territorial sea) or the Federal Government (with regard to the EEZ and the continental shelf). Notwithstanding this, the legislative responsibilities fall predominantly within the sphere of the federal government. On the basis of a federal authorization in the form of the Carbon Dioxide Storage Act (KSpG), the northern German coastal states have prohibited the storage of CO2 in the subsurface of the inner waters and the territorial sea – also for research, testing and demonstration of technologies. For the German EEZ, the situation is currently characterized by legal uncertainty.
The GEOSTOR project will first examine and analyze international legal requirements that must be considered for the underground storage of CO2 in the German EEZ or on the German continental shelf. In a next step, the European and national legal requirements for CO2 storage in the EEZ are examined, taking into account the relevant EU directives. The KSpG plays a decisive role in this process. This law was originally only applicable to demonstration projects, which were to be approved by 2016. Since the deadline for applications for CO2 storage projects has expired, it is currently unclear whether and, if so, on what legal basis future projects could be approved.
According to the KSpG (Section 7 (1) No. 7), a permit required for the “investigation of the subsurface for its suitability for the construction of CO2 storage facilities” will only be granted if the marine environment, shipping, fishing, the operation of offshore infrastructure (e.g., submarine cables, pipelines), and marine research will not be affected more than is unavoidable under the circumstances. The terminology of this provision originates from federal mining law and is also related to the planning of marine protected areas. In addition to protecting the marine environment, the purpose of Section 7 (1) No. 7 KSpG is to avoid conflicts between the testing and demonstration of CO2 storage on the one hand and other uses of the North Sea on the other.
Further requirements and conditions from the KSpG, which concern CO2 storage in general, are also to be applied to storage facilities in the subsurface of the North Sea. These include, among others, the requirements for CO2 storage facilities, their exploration and monitoring, or the handling of existing wells. How these requirements can be met is still unclear due to a lack of precision and legal regulations. Criteria are mentioned in the appendices of the law. However, methods and their geotechnical application are not regulated by law. There are proposals for this, which have been developed by international committees or in research projects. In the GEOSTOR project, the legal requirements for storage are to be compared with such concepts and proposals in order to examine the suitability of the currently available geotechnical technology for the application of the KSpG in the marine sector and, if necessary, to derive need for action and recommendations. GEOSTOR research results in the areas of geology, environment, monitoring, costs, and spatial planning will be considered.
Alexander Proelß (UHH)
Franz May (BGR)
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