Capítulo 2. Realidad, identidad, comunicación e imagen institucionales
2.1 Pilares fundamentales del concepto de empresa
Harbour porpoise Phocoena phocoena Bottlenose dolphin Tursiops truncatus Common (or harbour) seal Phoca vitulina Grey seal Halichoerus grypus
Loggerhead Turtle Caretta caretta Lamprey Petromyzon marinus Sturgeon Acipenser sturio
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It is possible that CO2 storage may impact on the marine eco-system as a result of injections
into the seabed, or the laying of pipelines and other seabed infrastructure used during operations. The possibility of CO2 escaping and its effects on biodiversity will also require closer scientific
consideration. The most foreseeable impact on habitats and species will be dependent on the location of the platforms and storage sites, as well as the routes followed by pipelines (if they are the method of transportation). The question therefore is whether these habitats or species that are present in these areas are likely to be affected by licensing CO2 storage. Clearly if they are not, then
they are unlikely to be protected as special areas of conservation. Even if an area has been designated as a special area of conservation, and none have as yet in UK’s offshore waters, this still does not provide absolute protection against interference - only restrictions. The Directive states that in the absence of alternative solutions, Member States may permit interference for ‘imperative reasons of overriding public interest’ – which expressly include social or economic interests. If Member States rely on this clause then appropriate compensatory measures must be provided to preserve the coherence of Community habitats. ‘Priority’ habitat types, however, generally may only be interfered with for environmental, human health or public safety reasons. Other reasons of overriding public importance may only be invoked ‘further to an opinion from the Commission’. It is possible that one might argue that CO2 storage is in the ‘overriding public interest’, and/or they
are interfering with the site for ‘environmental, human health or public safety reasons’.
A further example of the limitations of the Habitats Directive, can be seen in the case brought by Greenpeace in 1999152
. Greenpeace argued that reefs fell within Annex I of the Directive and the oil and gas licences issued by the United Kingdom Government would have an adverse effect on these. The Directive requires Member States to establish ‘a system of strict protection of animals listed in the Directive’153. The Directive also prohibits the following activities, (i) all forms of deliberate capture or killing of specimens of the species in the wild, (ii) deliberate disturbance of the species especially during breeding seasons, (iii) deterioration or destruction of breeding sites. Greenpeace argued that these prohibited activities were merely illustrative of the overarching requirement to establish a strict system of protection. But the court agreed with the Government and the oil companies that they are not an exhaustive list of the means of protection. The court then considered the meaning of the word ‘deliberate’ which qualified the prohibition on capture, killing and disturbance of species. The word is not defined in the Directive, and, as the court noted, it is not a concept normally used in UK law. Greenpeace argued that when an oil company conducted operations which they knew were likely or possible to result in killing or disturbance, that was a deliberate act which fell within the Directives prohibition. Again the court agreed with the Government and the oil companies and did not think it was deliberate disturbance. But the prohibited act covering the deterioration or destruction of breeding sites – is not qualified by the word ‘deliberate’. The question in the Greenpeace case then was whether this was an absolute prohibition, which was therefore incompatible with the general defence under the UK regulations which related to incidental actions. The judge found that whilst the Directive requires a prohibition, it did not follow that it obliged Member States to create criminal offences.
5.7 Conclusions
Increasingly, geological carbon dioxide storage has been gaining attention as a potential technological solution to climate change, both in the United Kingdom and internationally. At national and international level there has also been growing discussion as to whether the storage of CO2 in this manner is consistent with existing international laws, but there has been no consensus as
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R v Secretary of State ex parte Greenpeace, Queens Bench Division, 5 November 1999 CO/1336/99.
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yet. This is because the current legal framework is often ambiguous because laws were not drafted with this mitigation option and its technologies in mind.
Most of the focus on the storage of CO2 under existing international laws to date has been on
marine laws. A review of these laws does not offer definitive answers as to the correct legal position, but certain observations may be made. Firstly, it is not clear whether geological reservoirs and formations are caught under the definitions of sea, seabed or subsoil under the conventions. Secondly it is also unclear as to whether CO2 should be treated as a waste under the conventions. On
balance, the author considers that geological reservoirs and formations are probably within the remit of the conventions’ scope and that CO2 is also probably a waste. The method by which the CO2
reaches the storage site also strongly influences the legality of such projects. Under each of the marine conventions it seems likely that if CO2 is transported by ship then disposed of from an
offshore installation (such as an oil rig), this will be prohibited. In the case of a pipeline carrying CO2 to an installation, this will be prohibited under the London Convention and the 1996 Protocol.
This is not always the case under the OSPAR Convention, where the prohibition against dumping only applies to installations carrying out activities concerning hydrocarbons. Since is not a hydrocarbon it is permissible under the OSPAR Convention to pipe CO2 to offshore installations
provided they have not already been used for activities involving hydrocarbons. Under OSPAR, however, states have general environmental obligations with respect to land-based pipelines.
Recent studies into the legality of CO2 storage have tended to call for immediate reviews into
the current drafting of the marine conventions. This was a recurring theme in the recent report of the International Energy Agency; an example comment being - ‘the contracting parties to these agreements need to interpret, clarify or, as the case may be amend these treaties with a view to account for some form of controlled carbon storage. There is significant room for such interpretation and clarification under these treaties’ (IEA, 2005). The IEA thought that the contracting parties should also proactively ‘take into consideration not only their marine environment protection objectives, but also their objectives regarding climate change mitigation’, especially ‘if they want a coherent international framework for carbon storage to be developed’ (IEA, 2005). The Intergovernmental Panel on Climate Change were less forceful in their recent report, but still concluded that ‘it will be essential to resolve these [marine laws] issues if CCS [carbon capture and storage] is to become part of the portfolio of mitigation options’ (IPCC, 2005).
Although it is correct to point out that there are uncertainties under the current legal regime for marine protection, this is only because they were not drafted with the relatively new concept of CO2 storage in mind. What, in the authors’ opinion, is perhaps more important in relation to taking
geological dioxide storage as a mitigation option forward, is the status of CO2 storage under the
UNFCCC and Kyoto Protocol. At the current time it seems clear that both the UNFCCC and Kyoto Protocol allow for projects that reduce greenhouse gases at their sources and CO2 storage can in
theory be counted as an emission reduction. However, methodologies and rules for accounting of greenhouse gas reductions still need to be developed and approved. Without agreement on these, no CO2 storage projects will be undertaken, because it is unlikely that costly projects will be financed
without any incentive e.g. that they are counted as an emission reduction.
Focusing on changes to marine legislation alone is not the way forward, when greater clarification and certainty is also needed in relation to climate change legislation and rules. However, because of the slow pace of international law it is probably correct to raise all of the legal issues concerning CO2 storage projects and consider them all in advance. What is needed before the
holy grail of greater legal certainty (authors’ emphasis) is international consensus as to whether a large enough group of the international community want offshore geological CO2 storage as a
significant mitigation option. Some commentators might argue it is merely distributing pollution, whilst others consider that it is only feasible way of meeting climate targets in the short term. Other solutions including nuclear power, development of alternative energy sources, or carbon trading may also be viewed as difficult choices. The international community has to become engaged in
115 facing these difficult choices and decide which options to pursue, because business as usual scenarios will not provide a solution. Only when looking at difficult environmental choices such as climate change in the context of other international environmental laws, and considering all of the options including geological carbon dioxide storage, can politics reach a solution that can then be backed up by introducing adequate international laws.
5.8 References
Brubaker, R.D., & Christiansen, A.C. (2001), Legal Aspects of Underground CO2 Storage: Summary of Developments under the London Convention and North Sea Conference, Pre- Project Report, The Fridtjof Nansen Institute.
Cabinet Office (2002), The Energy Review, A Performance and Innovation Unit Report.
Churchill, R. (1996), ‘International Legal Issues Relating to Ocean Storage of CO2: A Focus on the
UN Convention on the Law of the Sea’, in IEA Greenhouse Gas R&D Programme, Ocean Storage of CO2, Workshop 3, International Links and Concerns, pp.117-126.
DEFRA (2002), CO2 Sequestration and Storage – Legal Issues, DEFRA Legal Services, internal document.
DEFRA (2003), News Release, DEFRA Launches Consultation on Extending Habitat and Birds Directive, 6 August.
DTI (2001), Review of the case for Government Support for Cleaner Coal Technology Demonstration Plant, Final Report.
European Commission (2003), Implementation of Directive 2001/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment.
Garner, B.A. (ed) (1999), Black's Law Dictionary, 7th edition, West Group Publishers.
GESAMP (1997), Report of the Twenty-Seventh Session of GESAMP, Nairobi, Kenya, April 1997, GESAMP Rep. and Studies 63
House of Commons - Environment, Food and Rural Affairs Committee (2004) Marine Environment, Session 2003-04 Sixth Report.
IEA (2005), Legal Aspects of Storing CO2 , International Energy Agency
IMO (1999), Report of the Twenty-Second Meeting of the Scientific Group to the London Convention, International Maritime Organisation.
IMO (2000), Twenty Second Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, 18-22 International Maritime Organisation, September 2000; published 25th October 2000; LC 22/14.
IMO (2004), Twenty-Sixth Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1-5 November 2004; published 17 December 2004, International Maritime Organisation, LC 26/15.
IMO (2005), Invitation to consider the legal questions associated with CO2 sequestration in geological formations under the London Convention and Protocol, International Maritime Organisation, 31 March, LC.2/Circ.439.
IPCC (2005), IPCC Special Report on Carbon dioxide Capture and Storage, Summary for Policy Makers, Intergovernmental Panel on Climate Change, September 2005
Johnston, P., Santillo, D. and Stringer, R. (1999), Ocean Disposal / Sequestration of Carbon Dioxide from Fossil Fuel Production and Use: An Overview of Rationale, Techniques and Implications, Greenpeace Research Laboratories, Technical Note 01/99.
Kiss, A.C. and Shelton, D. (1999), International Environmental Law, 2nd ed., Ardseley NY.
McCullagh, J. (1996), ‘International Legal Control over Accelerating Ocean Storage of Carbon Dioxide’, in IEA Greenhouse Gas R&D Programme, Ocean Storage of CO2 Workshop 3, International Links and Concerns, pp.85-115.
OSPAR Commission (2002), Disposal of CO2 at Sea, OSPAR Summary Record 02/21/1-E.
OSPAR Group of Jurists and Linguists (2003), Compatibility with the OSPAR Convention of Possible Placements of Carbon Dioxide in the Sea or the Sea-Bed, Agenda Item 3, JL 03/3/1- E, Hamburg, 12 May.
OSPAR Commission (2003), Summary Record, 03/17/1-(A-B)-E, Bremen, 23-27 June. OSPAR Commission (2004), Summary Record, 04/23/1-E, Reykjavik 28 June – I July.
Purdy, R., and Macrory, R. (2004), Geological carbon sequestration: critical legal issues, Tyndall Centre for Climate Change Research Working Paper Number 45.
RCEP (2000), Energy – The Changing Climate, Royal Commission on Environment and Pollution, Twenty-second Report, Cm 4749, TSO.
Snelders, C.A.M. (2002), CO2 storage in the seabed. A solution to the greenhouse effect seen from the perspective of international law, Thesis for Masters degree in International Law, Open Universiteit, Heerlen, Netherlands.
UK Government (2003), Energy – The Changing Climate, The United Kingdom Government Response to the Royal Commission on Environmental Pollution’s Twenty-Second Report, February 2003, Cm 5766, TSO p.37.