CCS legal and policy - Nov / Dec 2011

2011-12-06 10:03 by Anja Reitz

EU Directives are pieces of European legislation that set out results to be achieved rather than specific rules. It is for each Member State to decide how the results required by the Directive should best be obtained within its territory and to pass national laws to do this. This process is known as transposition and the methodological latitude provided for by the purposive nature of Directives means that the national laws which transpose their intentions can vary significantly from state to state.

A Directive must be transposed by a date specified within its text (normally around two years after the Directive comes into force) and the transposition must be in conformity with the requirements of the Directive. Failure to transpose a Directive in a conforming manner within the specified deadline is an infringement of EU law for which the European Commission can, if its preliminary attempts to resolve the issue fail, bring infringement proceedings before the European courts. The courts may, in turn, apply various penalties and fines on the infringing Member State. Infringement proceedings are not unusual (there were over 450 open infringement proceedings in 2009 in the area of environmental law alone) and the vast majority are settled without reference to the courts; nevertheless, the threat of court sanctions exist.

With regard to the Directive on the Storage of Carbon Dioxide (the ‘Directive’), the UK has not completed its transposition and is not alone. Of the 27 EU member states only two, Spain and Romania, claim to have transposed the Directive completely and it is yet to be seen whether their efforts are considered satisfactory by the Commission. 15 member states have not communicated any transposition at all to the Commission and the remaining ten (including the UK) have communicated only partial transposition. Accordingly, infringement procedures related to failure to transpose the Directive were launched by the Commission on 18 July against 25 out of the 27 European member states. This is less than encouraging.

One possible contributing factor to the UK having yet to completely transpose the Directive is that it has chosen to carry out the task in a piecemeal fashion rather than by producing a single piece of legislation that transposes the entire Directive in one fell swoop. The Carbon Dioxide (Access to Infrastructure) Regulations (the ‘TPA Regs’), for example, transposes only the third party access requirements included in Chapter 5 of the Directive. In addition, wherever possible, the UK’s transposing instruments replicate or amend existing legislative frameworks or provisions; again, by way of example, the TPA Regs are closely based upon the existing, and well tried and tested, regulatory framework covering third party access to offshore oil and gas infrastructure. As a result of this transposition methodology there are now, in addition to the CCS related provisions included in the Energy Act 2008, a number of ‘Storage of Carbon Dioxide Regulations’ either in force or moving through the legislative process.

Source: Feature Articles, Nov  20  2011 (Carbon Capture Journal); Calum Hughes, Yellow Wood Energy


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