New Developments Regarding CCS Law

After the rejection of the Act on the Demonstration and Implementation of Technologies for Carbon Capture, Transport and Permanent Storage of C02 (CCS Act) by the Bundesrat (Federal Council) in September, the German government started the formal parliamentary mediation procedure to find a comprise. However, in view of the differing standpoints on CCS  among the German federal states and lawmakers, it remains unclear how a compromise may be reached.

According to Article 39 para. 1  Directive 2009/31/EC on the geological storage of carbon dioxide, Germany should have transposed the Directive into a national CCS law by 25 June 2011. A first attempt to enact a CCS law failed during the previous, sixteenth legislative period of the German Parliament (2005-2009).  It took until 7 July 2011 until the Bundestag (German Parliament) finally adopted a new CCS Act.

There has been strong opposition to CCS, particularly in two of the states with the most suitable storage locations, Schleswig-Holstein and Lower-Saxony. They have been lobbying for an opt-out clause for the federal states. This has been opposed by the state of Brandenburg, which had argued that would give other states with more suitable storage locations the right to opt out of exploring a potential climate protection option. In Brandenburg Vattenfall AG operates a oxyfuel pilot plant located near its existing lignite fired power plant in Schwarze Pumpe and wants to open a larger-scale CCS demonstration power plant in Jänschwalde in 2015.

The final CCS draft that was submitted to the Bundesrat for approval in September contained somewhat of a comprise. It contained a clause which gave the federal states the right to designate areas for CCS pilot projects as well as areas in which such projects are not allowed. It was heavily criticised by the state of Brandenburg and Vattenfall. They called for a uniform nationwide applicable law.

The subsequent disapproval of the (second) CCS Act by the Bundesrat meant that the bill could not enter into force, as the bill is a so-called Zustimmungsgesetz (“consent law”), for which consent by the Bundesrat is required under German constitutional law. In light of the obligations under the Directive 2009/31/EC, the Federal Government therefore decided to exercise the constitutional right to invoke a mediation procedure to find a mutually agreeable compromise. Allegedly infringement proceedings for non-compliance have been started by the European Commission.

Yet it is unclear how agreement on a CCS law can be reached given the differing opinions of the Länder. While the Federal Government reiterated that the testing of the CCS technology within the limits of the rejected CCS bill was part of its energy concept, Federal Minister for the Environment Norbert Röttgen reportedly told the newspaper Märkische Oderzeitung that CCS was not needed to reach Germany’s 2020 target for CO2 reduction. CCS was not a strategic element for the German energy generation, the paper quotes the minister as saying. Yet testing of the CCS technology was important because of the  increasing amount of coal in the energy generation of developing countries like China. Besides, it was necessary to implement the EU CCS Directive. That was why the government had started the mediation procedure. Oliver Krischer, Bundestag representative of Alliance ’90/The Greens, welcomed Mr. Röttgen’s comment’s. He presented his party’s position according to which Germany should follow the example of Austria, prohibiting CCS with the exemption of research projects. Legally, EU member states have the right not to allow for any CO2 storage in parts or in the whole of their territory (Directive 2009/31/EC, Article 4 para. 1 sent. 2 ).

Source: Federal Government (Bundesregierung); Märkische Oderzeitung

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