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Polytechnica

, Volume 2, Issue 1–2, pp 87–96 | Cite as

Legal Aspects of Offshore CCS: Case Study – Salt Cavern

  • Hirdan K. M. Costa
  • Raíssa M. L. M. MusarraEmail author
  • Isabela Morbach Machado e Silva
  • Romário de Carvalho Nunes
  • Israel Lacerda Cavalcante
  • Silvia Andrea Cupertino
Original Article
  • 164 Downloads

Abstract

Carbon capture and storage (CCS) appears as a technology tool to help countries to get their CO2 emissions lower and accomplished targets by 2030. As any humankind activities, CCS must follow legal constraints. Those are important issues to be considered in order to put carbon capture and storage projects in place. Therefore, this paper aims to describe and analyze the legal and environmental aspects about CCS in Brazil. Our methodology includes comparative law method and a case study that is Salt Cave Offshore located in Pre-Salt area. First, we must understand propriety rights, including operational permitting and others issues; after considering the cycle of life’s projects, its development and appropriated managed, control and closing; finally, environmental and public participation during project running life. Our intent is to contribute to Brazilian discussion on CCS legal framework in order to avoid conflicts and draw answers which law should be applied.

Keywords

Carbon Capture and Storage (CCS) Legal Aspects of CCS; Brazilian PreSalt Area; Salt Cavern Greenhouse Gases (GEEs) Mitigation 

1 Introduction

This paper aims to explore and associate the legal aspects with the other instruments integrating a Carbon Capture and Storage (CCS) project in Brazil, from scoping and regulation to operations and closing. Such an association is necessary because it demonstrates the importance that legal aspects attach to the project, as well as working interdependently with its other phases.

Through a case study of the salt cavern for the Brazilian Pre-Salt region, this paper will address the relevance of the implementation of CCS activities to the hydrocarbon production of CO2 and EOR and its legal aspects as Property Rights, Environmental Licensing and Public Participation issues associated with Brazilian Environmental Protection, as well as highlighting the technical aspects of the operation phase of storage facilities and their respective monitoring, reporting and verification. The work aims to serve as a bridge between research and decision making within the theme of mitigation of greenhouse gases in Brazil.

Therefore, this paper aims to describe and to analyze the legal aspects about CCS in Brazil, mainly considering a study case in order to verify its application and consequences. First, we must understand property rights, including operational permit and others issues; after considering the cycle of life projects, their development and appropriate management, control and closing; finally, the liability during the project running life and after closure. Each of these topics will contain considerations about our case study, which is Salt Cavern.

2 Climate Change and CCS as a Mitigation Tool

The climate change and global warming issue began to be part of the international agenda in the 1980s; it was based on scientific studies indicating an increasing in the concentration of carbon dioxide in the atmosphere, associated with an increase in terrestrial temperature (ABNT 2018).

In 1985, the United Nations General Assembly requested the United Nations Environment Program (UNEP) to design environmental strategies for the year 2000 and beyond, with support from the World Commission on Environment and Development, the function of preparing report on the global environment.

The Commission, composed by 21 participants “chosen in a personal capacity, not as government representatives”, was chaired by the Prime Minister of Norway, Gro Harlem Brundtland (CMMAD 1988). The 1987 report, called “Our Common Future” aims to include environmental considerations in the decision-making process for development (CMMAD 1988).

Thus, at the XV Session of the UNEP Governing Council, the Board proposes the definition of “sustainable development”; among other components, the following stands out: “Sustainable development implies the maintenance, rational use and appreciation of the resource base natural resources that sustains the recovery of ecosystems and economic growth” (CMMAD 1988: XV).

The Intergovernmental Panel on Climate Change (IPCC), established in 1988 by the World Meteorological Organization (WMO), issued a report in 2015 outlining risk aspects of climate change and the urgent need to ensure that the global average temperature in the twenty-first century does not exceed 2 °C, remaining within a “carbon budget” estimated at 200GtCO2e (IPCC 2015; MACEDO 2017).

In 1997, the Kyoto Protocol backed the international community in an effort to restrain 5.2% of greenhouse gas1 emissions as compared to 1990 levels. It is worth noting that gases internationally recognized as greenhouse gases (CO2), Methane (CH4), Nitrous Oxide (N2O), Sulfur Hexafluoride (SF6) and two families of gases, Hydrofluorocarbon (HFC) and Perfluorocarbon (PFC) are regulated by the Protocol.

Given the end of the Kyoto Protocol in 2016, the Paris Agreement was signed by 175 countries in New York City and entered into force in November that year. It established a carbon budget distributed among countries to ensure that the average global temperature does not exceed 2 °C up to 2100. Brazil, a signatory, through the Ministry of the Environment, presented a basic document to define the strategy to implement the country’s commitments for 2020, according to the Nationally Determined Contribution (NDC) (Macedo 2017).

In September 2016, Brazil completed the ratification process of the Paris Agreement, establishing official commitments with the United Nations to “reduce greenhouse gas emissions by 37% below 2005 levels in 2025 with the reduction indicator of greenhouse gas emissions by 43% below 2005 levels by 20302 “(MMA 2018, p. 03). In order to achieve its goals, Brazil needs consider CCS technology as a way to contribute to mitigation measures. In this regards, our study case is presented.

3 Our Case: Salt Cavern

Carbon capture and storage activities have gained relevance as instruments for mitigating the anthropogenic emission of greenhouse gases, specifically carbon dioxide, within the context of the International Agreements on Climate Change, such as the Paris Agreement adopted by Brazil.

Note that CCS activities can be interpreted as a technology oriented towards protecting environmental resources so as to avoid the emission of important Greenhouse Gases. Its implementation can be encouraged by the principles of the Brazilian National Policy for the Environment, as follows:

Art 2 - The National Environmental Policy aims to preserve, improve and recover the environmental quality conducive to life, aiming to ensure, in the country, conditions for socio-economic development, national security interests and protection of the dignity of life by the following principles: VI - incentives for the study and research of technologies oriented towards the rational use and protection of environmental resources;

The objectives of the national environmental policy states:

Art 4 - The National Environmental Policy aims at: I - to reconcile economic and social development with the preservation of the quality of the environment and ecological balance; IV - the development of national research and technology oriented towards the rational use of environmental resources; Sole Paragraph - Public or private business activities shall be exerting in accordance with the guidelines of the National Environmental Policy.

In the same sense, Law No. 9478 / 97, which deals with national energy policy and activities related to the oil monopoly, has among its principles:

Of the Principles and Objectives of the National Energy Policy. Article 1 National policies for the rational use of energy sources aim at the following objectives: IV - protecting the environment and promoting energy conservation; XVIII - mitigating greenhouse gases emissions and pollutants in the energy and transport sectors, by including the use of biofuels. (Included by Law No. 12,490, of 2011)

In this line, it is understood that the encouragement of CCS as “development of research and national technologies oriented towards the rational use of environmental resources” is applicable to the Brazilian legal system.3

This type of CO2 storage can be carried out in several geological4 units along the Brazilian territory and depends on economic, technological and logistic vectors. To consider this activity from the experimental point of view would particularly consist in storing the gaseous portion of sedimentary formations near the producing fields. Later, with the gain of scale and the corresponding study of its effects, it could be carried out effectively in sites in which it is possible to install water injector wells for dissolving part of the salt structure, thus forming salt caverns artificially.

Due to the expected increase in the production of gaseous hydrocarbons in the coastal region, in the Santos, Campos and Espírito Santo Basins, and because of the characteristic of certain fields, in which using their gaseous portion is not economically viable only by processing in UPGN,5 there is a need to process it in a technically secure way at feasible costs. Hence, in fields with a high CO2 content in the hydrocarbon, it is possible to carry out the production, the separation of the liquid and gaseous parcels, to execute the injection of the latter, under conditions that make carbon dioxide and methane, for example, physically chemically separable and at low cost.

Stocking the gaseous portion of sedimentary formations near the producing fields is among the technical solutions eligible.6 Evaporitic rocks are composed of minerals from the family of halides, sulfosalts, carbonates and phosphates. The main components are in the halides and they are represented mainly by halite (sodium chloride). The halite presents, as a rheological characteristic, high resistance to simple compression with respect to the other evaporitic minerals.

The proposal that is under the horizon seeks the location of structurally stable sites in which it is possible to install water injectors for dissolving part of the salt structure, for forming salt caverns artificially. Thereafter, the aforementioned gas is injected so as to maintain the stress conditions prior to dissolution as a necessary condition so that the newly constructed structure does not collapse.

The hydrocarbon with high CO2 content is injected under conditions that allow the physical-chemical separation of both plots, namely: supercritical carbon dioxide and methane as gas.

By monitoring7 the development of the fluid injection activity, the separation of the phases allows using a portion of methane concomitant to the maintenance of CO2 in the salt caverns. The decommissioning process coincides with the complete CO2 filling for subsequent abandonment of the well. In the form they are designed, salt caverns can promote better use of energy resources.

4 The Scope and Management of Rights

The starting point of the state of CCS legislation is the property law and the ownership of land. That means the several possibilities about the need of a land owner to give consent to carbon capture and storage operation under his or her property. This raises a number of complex legal issues.

In the past, in classical property law, the property was extended to usque ad inferos et usque ad coelos. There was no limitation in this sense. At most, there was the perception of “someone can use it at such a depth or at such a height that the owner has no interest in forbidding it” (Pontes de Miranda 1955, p. 79). Still subsisting is “the extension of airspace and subsoil is delimited by the utility that the owner can provide” (Gonçalves 2013, p. 247).

With the historical economic growth and geopolitical relevance of minerals and underground hydrocarbons, however, the principle of property underwent relevant transformations; it currently has many different contours in the different legal systems of the world. In the Brazilian case, property concerns the subsoil and stands out in a limited way; which means that that property, however, does not include deposits, mines and other mineral resources (Barroso 2006). Note the positive statement in articles 1229 and 1230 of the Civil Code - the first rules that:

The ownership of the ground covers that of the corresponding airspace and subsoil, in height and depth useful to its exercise, and the owner can not oppose activities carried out by third parties at such a height or depth, which does not have it legitimate interest in preventing them.

Art. 1230 of Civil Code adds that “Land ownership does not cover deposits, mines and other mineral resources, hydraulic power potentials, archaeological monuments and other property referred to by special laws.” This is, therefore, the material restriction to the right of ownership of the subsoil in present-day country law.

It is worth noting that it is possible to predict, besides the potential hydropower, the geological storage potential of CO2. Despite the legal possibility, this forecast does not exist so far.

Yet there is the paradigm followed by the United States of America and Canada, in which, according to Hirdan Katarina de Medeiros Costa and Carolina Arlota:

Each state adopts specific legislation and generally enshrines the common law rule, which determines that the owner of the land is also the owner of the subsoil and hydrocarbons contained therein (2017, p. 209).

The pronounced federalism of these countries means that the issue is not mentioned in the Federal Constitution and allows each Member State to delimit its own rules of oil extraction. Both countries, however, are exceptions to the global tendency of governments and state-owned companies to detain the mineral resources of their territory (Costa and Arlota 2017).
Here, the norm that best defines the legal relationship between State and mineral resources is the Constitution. In this sense, Fernando Facury Scaff said:

The Federal Constitution of 1988 establishes that mineral resources, petroleum, and hydraulic energy potentials are Union assets (articles 20, VIII and IX), with legislative competence being exclusively federal (article 22, IV and XIII); however, common (multiple) competence on this matter (Article 23, XI). It also establishes that the legal regime for exploiting mineral resources and potentials for hydropower will be that under authorization or concession (article 176), with a monopoly of the Union in the petroleum exploitation activity (article 176) and in research, mining and nuclear activities. and its derivatives (article 21, XXIII and article 177) (2014, p. 23).

In Article 177 of the Constitution, the Union monopolizes the exploration and development of hydrocarbons and natural gas. As explained by Hirdan Katarina Medeiros Costa and Carolina Arlota:

(...) the monopoly regime for oil and natural gas provided for in art. 177 of the Constitution aims at the protection of national security. This tutelage justifies the performance of the State as an economic agent. Thus, in addition to leaving open the mechanism of direct intervention, it provides, through a systematic interpretation, the commitment of the Public Power to establish policies with a view to rendering effective social rights throughout the constitution. (...) it can be said that the constituent legislator raised the attempt of a model of social welfare and an interventionist state (2017, p. 215).

It is important to emphasize that the 1990s brought great transformations in the economic order of Brazil and, therefore, some normative inclusions that allow, under certain legally established conditions, the Union to hire private companies to carry out those monopolized activities.

Yet in the late 1930s, from the provisional government of Vargas in the Estado Novo, which followed the dominical phase of exploration. Vargas interventionism led to the creation of the National Petroleum Council and the National Department of Mineral Production, which, driven by the discoveries of new hydrocarbon reserves and strong Venezuelan and Mexican nationalism, limited the possibility of exploitation to Brazilians (Costa, Arlota 2017, p. 213).

In the meantime, in international law, there were conflicts between countries that held natural reserves and foreign companies that had contractual advantages that were very disproportionate to the former. In order to remedy them, United Nations resolutions - especially that of No. 1803, of 1962 - “were emphatic in reinforcing the principle of the sovereignty of States over their natural resources” (Torquato-Fernandes 2013, p.14). That rule states:
  1. 1.

    The right of peoples and nations to permanent sovereignty over their wealth and natural resources must be exercised with the interest of the national development and well-being of the people of the respective State;

     
  2. 2.

    The exploitation, development and disposition of such resources, as well as the importation of foreign capital to affect them, shall be in accordance with such rules and conditions as these peoples and nations may deem necessary or desirable to authorize, limit or prohibit such activities (United Nations 1962).

     
Returning to the rights over the subsoil in Brazil, in addition to the Constitution (in its Article 20) and the Civil Code, Art. 1 of the Mining Code in determining that “It is the responsibility of the Union to administer mineral resources, the mineral production industry and the distribution, trade and consumption of mineral products”, as well as the Forest Code, which in its Article 3 defines what should be understood as “public utility”:

B) infrastructure works for concessions and public transport services, road system, including that necessary for urban land parceling approved by the municipalities, sanitation, as well as mining, except in the latter case, the extraction of sand, clay, and gravel.

Finally, elucidating the question of underground property, we can affirm that the Brazilian subsoil is not state-owned:

This standard [the Constitution] does not state that the entire basement is the Union's basement. (...) The criterion is that mineral resources and hydraulic energy potentials, when used for exploration and exploitation, will not comport ownership and belong to the Union, are in the ground or underground. They are (public) goods of the Union (...) (Scaff 2015, p.59).

Turning attention to minerals and hydrocarbons, it is necessary to understand that such goods are not only scarce but exhaustible - that is, they are nonrenewable natural resources (Scaff 2014, pp. 38–43).

It is clear that, in Brazil, the legislation needs to address CCS property rights and the cases of a third party’s interest in implementing CO2 storage. Another important issue is addressing of how to regulate the injected CO2 and if it becomes a property of the state after decommissioning, and the extent of this liability. Brazil needs to clarify this issue.

5 Operating and Closing Storage Facilities

From the range of countries that have specific legislation about CCS activities, issues related to Monitoring, Reporting and Verification (MRV)8 are mainly addressed to the definition of the methodology for obtaining the licensing of CO2 capture and storage operations as well as the way in which owners and operators must manage such operations, also specifying periodicity and minimum technical characteristics when issuing reports accompanying the activities.

The Australian law called Greenhouse Gas Geological Sequestration Act 2008 states that before commencing injection of CO2 or other greenhouse gases, the holder of an injection, monitoring and license must submit to the Minister an “injection and monitoring plan” including the description of the proposed monitoring techniques, the monitoring and verification plan detailing how the behavior of any stored greenhouse gas will be monitored and an estimate of the cost of monitoring and verification activities.

Meanwhile, the Canadian Carbon Sequestration Tenure Regulation complements the licensing issue. This regulation determines the need of all MRV plans to present an analysis of the likelihood that the operations will interfere with mineral recovery in addition to linking the contract/lease renewal to the triennial renewal of the MRV. This law also establishes obligations to obtain contracts such as: pay the application fee prescribed in the Mines and Minerals Administration Regulation; pay the rent applicable for the first year of the lease; submit evidence that the area covered by the application is suitable for CO2 sequestration; submit a monitoring, measurement and verification plan for approval; and submit a closure plan.

If the aforementioned legislations bring the issues relatively marginally, therefore, in a macro context, the American Code of Federal Regulations, Title 40: Protection of Environment, Parts 78 (Appeal Procedures) and 98 (Mandatory Greenhouse Gas Reporting) CO2 Storage Reporting Rules) brings with it important milestones and definitions as one of the few legislations that spell out the difference between injector well for CO2 storage and injector well for improved hydrocarbon reserve performance and efficiency as well as determining obligations and duties of both the owner and the operator.

The law also establishes well-defined technical and administrative guidelines, such as the need for owners and operators of such CO2 sequestration facilities to follow the procedures for monitoring, reporting and monitoring, quality assurance, estimation of missing data and recordkeeping specified as well as carbon monitoring, estimating in their reports, for example, the amount of CO2 following data must be reported: mass of CO2 received, injected, produced, emitted by surface leakage and emissions from equipment leaks and vented emissions from surface equipment.

5.1 Brazilian Legislation on Monitoring and Inspection of Activities in the Oil and Gas Sector Related to CCS

The Brazilian environmental legislation is very comprehensive, covering a wide range of topics, although specific industry activities (such as CCS) are not yet covered by the legal system. First, it is necessary to understand that the monitoring phase (including the issuance of reports and eventual inspections) may depend on the type of licensing obtained by the operator. According to Art. 225, § 1°, IV, it is incumbent upon the Public Government, in the form of the law, to require a prior study of environmental impact for installing a work or activity potentially causing significant environmental degradation. In addition, Art. 23 defines common competence of the Union, the States, the Federal District and the Municipalities: (...) VI – to protect the environment and to fight pollution in any of its forms.

Therefore, Law 6938/81 (PNMA) instructs in Article 10 §4 the Federal Environmental Agency (IBAMA) competence for licensing activities and works with significant environmental impact, national or regional, regulated by Decree 99.274/90.

The execution of enterprise activities is mostly monitored by National Petroleum, Natural Gas and Biofuels (ANP). ANP inspection actions are carried out in the form of audits, through the collection of samples and analysis of data and evidences, aiming to verify the compliance of the operator with the requirements such as technical regulations, being regulated by Resolution 37/2015, which provides for the granting of a term for treating nonconformities and eventual drawing up an infraction notice.

The Environmental Crimes Act (Law No. 9605/98 - Law on Environmental Crimes) defines the liability of the legal entity - administrative, civil and criminal - and also allows the natural person, who is the author of the infraction, to be incriminated and includes the forced liquidation of an entity. It particularly covers the aspects of criminal action and prosecution, crimes against the environment and administrative infractions.

Specifically regarding environmental licensing, sanctions may result in suspending or canceling the registration, license or authorization, loss or restriction of tax incentives and benefits, and loss or suspension of participation in financing at official credit institutions.9 There is, for example, a correlation between the types of activities and licenses required (Table 1).
Table 1

Licenses and studies applicable to each activity

Operation

Type of license

Applicable environmental study

Object

Drilling (Minimum exploratory program contracted with ANP)

Previous License for Drilling - (LPper)

Control Report Environmental - RCA

Authorizes the activity of drilling

Production for search (Long-term test-TLD, authorized by ANP)

Previous License of Production for Research - (LPpro)

Viability study Environmental - EVA

Authorizes the Testing for long duration —TLD

Production systems and draining (Production system and flow in new field or block - plan development approved by the ANP)

Installation license — (LI)

Impact Study Environmental and Impact Report Environmental - EIA/RI MA

Authorizes, following the approval of the EIA / RI MA with the respective Audience realization Public, the installation of systems and units required production and disposal

Production systems and draining (Areas where you are already implemented)

Installation license (LI)

Evaluation report Environmental - RAA

Authorizes, following the approval of the RAA, the installation of and additional units necessary for the production and flow

Production systems and draining

Operating license (LO)

Control Design Environmental (PCA).

Authorizes, after the service conditions of LI, the approval of the PCA, the IEP and performance of the technical survey, the start the operation of the development

Data acquisition seismic (ANP Authorization for carrying out the activity of Seismic Data Survey Maritime, non-exclusive)

Operating license — (LCD)

Environmental Study (EA)

Authorizes, after approval of the EA, the start of the data survey seismic seismic

Data acquisition seismic (ANP Concession Agreement of the block, which provides for research, including the Acquisition of Maritime Seismic Data)

License of Operation(LO)

Environmental Study (EA)

Authorizes, after approval of the EA, the start of the data survey seismic surveys

Source: Guide to Environmental Licensing Chapter III (IBAMA/ANP)

5.2 What Progress Could Brazil Have for Regulating CCS Activity?

Due to the robust Brazilian legislation on the environment as well as a solid autarchic structure to oversee numerous activities, in Brazil there is the possibility of creating a specific law for CCS activities, or changing existed laws, including all the necessary steps to develop the activity or, through a decree, to supplement laws and establish a series of measures to regulate activities, using all the existing structure.

Regarding laws, for example, when we deal with environmental licensing of activities related to the exploration and exploitation of deposits of liquid fuels and natural gas there is a specific procedure, regulated by CONAMA Resolution number 23, from December 7, 1994.

Regarding the inspection structure, the ANP own regulations regarding operational safety already cover maritime installations, land installations, pipelines and underwater systems, to which the activities of CCS could be perfectly embedded in this area. In fact, the IBAMA directive itself determines that the activities carried out in the continental shelf should be analyzed by this body.

Hence, several points of the international legislation could be developed and inserted in the Brazilian context, such as the distinction between CO2 storage activities in geological layers and CO2 injection for improving the performance of the hydrocarbon reservoir. The Brazilian Legislation would detail in a single law all the topics related to the activity, including the applicable technical definitions, property rights, implementation phases, operation and decommissioning, among others, to adjacent issues, such as the development of the activity in the country fiscal scope - with tax incentives and tax exemptions - as well as the educational scope, promoting the creation of specialized labor) up to the inclusion of society for its active participation in the dissemination and recognition of this activity in the country.

Therefore, companies, the organized civil society, educational institutions and researchers must structure and develop a plan to adapt the existing legislation or create specific legislation aimed at CCS activities, proposing to the Brazilian Executive and Judiciary branches the approval of these measures, considering the international laws and treaties, and environmental safety and development.

6 Environmental Licensing

The environmental licensing system in Brazil and its special instrument, the environmental impact assessment (EIA), must describe the specific aspects of CCS projects (Costa et al. 2018). The National Environmental Policy Act enacted by Law 6938/1981 established the main formulation and application mechanisms of the environmental policy, among which, “assessing environmental impacts” and “licensing and revising the effective or potentially polluting activities”. In this line, the Brazilian Environmental Council published Resolution 237/1997 and defined the environmental licensing tools.

CONAMA Resolution 01/86 requires that EIA is conducted by developers for new projects or expansions of projects listed in Article 2, including fossil fuel extraction, mining activities, ports, pipelines, transmission lines above 230 kV, energy power plants above 10 MW, etc. However, this list is only indicative and the environmental agencies may require EIA for other activities that may cause significant environmental degradation (Costa et al. 2018).

A duly documented EIA/RIMA (Environmental Impact Studies - EIA - and the Environmental Impact Report - RIMA) that makes up the Environmental Impact Assessment must be made available to the public for comments. For this purpose, a Public Hearing is legally guaranteed and often held. Indeed, once called for by the environmental permitting agency, the Public Attorney, any civil association, or at least 50 persons, a Public Hearing must be held, being a condition for the validity of the license. During the Public Hearing, the public has the opportunity to ask for clarifications, to criticize the project, to request the adoption of certain measures etc. (Costa et al. 2018).

The environmental permitting procedure for oil and gas activities begin with the development of an Environmental Impact Assessment and its related report (“EIA/RIMA”), which must be submitted to the environmental agency with the application for the environmental licenses (Costa et al. 2018). Specifically, for the environmental licensing of exploration and production of oil, natural gas and other fluid hydrocarbons (mainly unconventional activities), in 2015, Federal Decree 8437 established the IBAMA competence and the MMA Ordinance 422/2011 provides for specific stages and tools for offshore activities”.

Licenses for onshore activities are generally granted by the state environmental agency and for offshore activities, usually by the federal agency, IBAMA. In cases involving activities that may cause significant national or regional environmental impacts, IBAMA has the authority to issue the permits.

Despite those basic rules, in practice, conflicts of interests between state and federal agencies may arise and, for example, activities that affect coastal zones may not be significant and of national or regional proportions; however, IBAMA has argued its competence due to coastal zones belonging to the Federal Government (Costa et al. 2018). According to the applicable law, CCS activities must be subjected to environmental licensing process, including a complete EIA/RIMA and the specific impacts of CCS activities should be evaluated and approved by the competent environmental agency (Costa et al. 2018).

7 Public Participation

According to the International Energy Agency (IEA 2016) legal and regulatory frameworks are key to ensuring that geological storage of CO2 is safe and effective and that the storage sites and risks accompanying it are managed properly. In this path, public participation must be regulated.

In this sense, there should be a strengthening of social and community organizations, resource redistribution through partnerships, information and capacity-building to participate in public spaces for decision-making and for the construction of institutions guided by a logic of sustainability (Musarra and Costa 2019).

The cluster of norms referred to as public participation by the IEA (International Energy Agency) is among the standards included in the institution CCS database. Our analyses summarize in Table 2 an overview from each chosen country (Musarra and Costa 2019).
Table 2

Brief of public participation

Code

Jurisdiction

Public participation

Greenhouse Gas Storage Act 2009

Australia, Queensland

Involvement with landowners and occupants, not contemplating the public in a broad sense.

Petroleum and Geothermal Energy Act 2000

Australia, South Australia

Documents available for inspection only by persons authorized by the Minister or by someone with an interest in the license or negotiation

Greenhouse Gas Geological Sequestration Act 2008

Australia, Victoria

Details about the consultation and hearing procedures

Offshore Petroleum and Greenhouse Gas Storage Act 2010

Australia, Victoria

Standard is only to publish and to access records rather than effective participation

Oil and Gas Activities Act [SBC 2008]

Canada, British Columbia

Only contemplates advertising through registration

Petroleum and Natural Gas Act [RSBC 1996]

Canada, British Columbia

Confidential

European Union Directive 2009/31/EC and its ammendments

European Union

Standard allows for public consultation and resolute participation of citizens, making clear the right to advertise information about storage

United Kingdom Energy Act 2008

European Union, United Kingdom, Northern Ireland, Scotland, Wales

Disclosure of the information would be contrary to national security interests

Environmental Protection: Storage of Carbon Dioxide (Licensing etc.) Regulations 2010 No. 2221

European Union, United Kingdom, Wales, Northern Ireland, England

Allows only access to records.

North Dakota Storage Administration Statute

United States, North Dakota

Consultation is restricted to interests only

North Dakota CO2 Storage Statute

United States, North Dakota

Hearing must be published for two consecutive weeks

Texas CO2 Code

United States, Texas

Permits approvals and hearings

Utah CCS Rules Statute

United States, Utah

Regulatory oversight and public information

Wyoming Sequestration Permitting Statute

United States, Wyoming

No specification of public consultation procedures, it provides that the recommendations may only be made after the receipt of public comments

Code of Federal Regulations, Title 40, 145, 146

United States

Hearing, including workshops, comment periods and hearings, and consultation with specific stakeholder groups

Louisiana CO2 Sequestration Act

United States, Louisiana

Hearing and Commissioner is required to keep a book of rules opened

Source: Musarra and Costa 2019

Regarding juridical participation, our constitution clearly opens the possibility of collective procedural implementation (art. 129), and before that, the infra-constitutional set of rules already made possible the public civil action (Law 7347/85).10

The Public Hearing is the moment of obtaining an environmental license of a work or activity in which the population can obtain details about its characteristics and impacts by presenting the Environmental Impact Report (RIMA). The documents of the public hearing (s) shall serve as a basis with the RIMA for the licensor to approve or not the project (CONAMA, Res. 09/1987).

The Environment Agency should conduct a Public Hearing when deemed necessary, or when requested by a civil entity, by the Public Prosecution Service, or by 50 or more citizens. The deadline for requesting the opening of a Public Hearing shall be 45 days after the publication in the local press of the approved information by the environmental agency that the EIA/RIMA has been approved. The call and opening of the public hearing does not have a pre-established deadline, but must have sufficient time for the interested parties to be able to organize themselves, take notice of the RIMA and attend the hearing.

Thus, even without specific legislation for CCS, we can perceive that there is openness to public participation at the moment of applying for environmental licensing in Brazil. However, we understand that other forms of participation, with power of deliberation, should be explicit.

8 Conclusions

In order to meet the Paris Agreement goal, according to Almeida et al. (2017), Brazil needs to prepare and to adopt technologies, such as Carbon Capture and Storage (CCS),11 which may represent a strategic alternative for reducing CO2, especially for the energy sector. However, the knowledge about this technology is still poorly consolidated in the country, as well as the regulation of these activities.

Thus, legal awareness for converting technical and scientific data and social needs in the context of climate change mitigation requires the establishment of norms and rules that include the specificities of human activities.

The allusion to the mitigation of CO2 emissions as an important component of the governmental agenda for urgent strategies and the recommendation for the adoption of CCS activities are well known in international reports. This shows a strong indication of the need for its implementation for a climate change governance scenario in the pre-salt area, brimming with oil and gas production and exploration, has structurally stable sites in which it is possible to build artificial salt caverns for CO2 storage.

Carbon capture and storage activities as solutions for reducing carbon emissions can be considered business activities and, in terms of private ownership, have a duty to fulfill their social function. And because they are in the orbit of free initiative, free competition can allow these activities to be carried out fulfilling the premises of defending the environment.

Footnotes

  1. 1.

    A greenhouse gas is a gas that absorbs and emits infrared radiation, the primary greenhouse gases in the atmosphere are water vapor, carbon dioxide, methane, nitrous oxide, and ozone. Atmospheric carbon dioxide (CO2) is a nontoxic, colorless, odorless gas, Greenhouse gases in the atmosphere increase the temperature at the surface (IEA 2016).

  2. 2.

    GHG stream: is a stream of carbon dioxide or a substance that overwhelmingly consists of carbon dioxide. The stream may be in a gaseous or liquid state.

    GHG stream storage: is (a) the process of injecting a GHG stream into a GHG storage reservoir; and (b) monitoring the behavior of the injected GHG stream in the reservoir. Injecting a GHG stream for authorized enhanced petroleum recovery is declared not to be GHG stream storage. To this end, no waste or other matter may be added for disposing of that waste or other matter. Concentrations of all incidental and added substances shall be below levels that would: a) adversely affect the integrity of the storage site or the relevant transport infrastructure; b) pose a significant risk to the environment or human health; or c) breach the requirements of the applicable Community legislation.

  3. 3.

    The exclusion of substances considered hazardous waste by the Brazilian environmental agency should be considered.

  4. 4.

    GHG well: is a hole in the ground made by drilling, boring or any other means—(a) to carry out GHG storage exploration; or (b) for GHG stream storage. A GHG well includes the casing for the well and any of the following attached to the well: the casing head; a casing hanger or spool or tubing hanger; flow control equipment up to and including the wing valves. A GHG well does not include a seismic shot hole or shallow hole drilled to work out a geological structure.

  5. 5.

    UPGN: Natural gas processing unit. Industrial facility that separates heavy (propane and heavier) fractions from natural gas, methane and ethane.

  6. 6.

    Enhanced Hydrocarbon Recovery (EHR) refers to the recovery of hydrocarbons in addition to those extracted by water injection or other means, increasing reservoir pressure and hydrocarbon flow. EHR is not included in the scope of the EU Directive (2009/31/EC of the European Parliament and of the Council of 23 April 2009). However, where EHR is combined with geological storage of CO2, the provisions of the Directive for the environmentally safe storage of CO2 should apply. Section 33 of the UK Energy Act provides that the use of CO2 for EOR will only constitute a sequestration activity (Energy Act 2008 (UK Energy Act).

  7. 7.

    Greenhouse gas substance injection and monitoring: a) the injection of a greenhouse gas substance into an underground geological storage formation for permanently storing that substance underground; b) the monitoring and testing of the behaviour of an injected greenhouse gas substance, including predictive modeling; c) any activity incidental to an activity listed in paragraph (a) or (b), including transportation of a greenhouse gas substance within an injection and monitoring licensed area. Underground geological storage formation: includes— a) any seal or reservoir of an underground geological formation; and b) any associated geological attributes or features of an underground geological formation;

  8. 8.

    Monitoring, Reporting and Verification (MRV): Control method used in the GHG storage phase that uses pre-established routines and criterion as mitigation measures in case of fluid leakage, emergency response plan, among others. The preparation and presentation of the MRV to the authorities is required before applying for the operating license.

  9. 9.

    In Brazil, the following types of land cannot be covered by exploration permits or injection and storage leases: A land that a regulation prescribes as land over which an exploration permit or an injection and storage lease cannot be granted; the marginal ranges of any natural and intermittent natural watercourse; areas around lakes and natural lagoons; areas surrounding artificial water reservoirs, resulting from the damming or damming of natural water courses, within the range defined in the environmental license of the undertaking; the areas around the springs and perennial water eyes, whatever their topographical situation; slopes or parts thereof with a slope steeper than 45 °, equivalent to 100% (100 %) in the line of the steepest slope; the restingas, as dune fixers or manganese stabilizers; mangroves, in all their extension; the edges of the trays or sheets, up to the line of rupture of the relief; on top of hills, hills, mountains and mountain ranges; areas at an altitude higher than 1800 (one thousand, eight hundred) meters; the paths (veredas); areas delimited in ecological economic zoning; areas defined as conservation units of any nature, of any federative unit with or without management council and with or without a management plan; areas located in hydrographic basins with or without delimitation; indigenous lands; lands inhabited by remnants of quilombos; lands inhabited by traditional population as defined in current legislation; lands of notable artistic, landscape, religious, archeological, historical and touristic importance.

  10. 10.

    A Public Civil Action aims at suppressing or even preventing damages to the environment, the consumer, the public patrimony, goods and rights of artistic, esthetic, historical and tourist value, for breaking the economic order and the popular economy, to the public and social patrimony, to the honor and dignity of racial, ethnic and religious groups, Art. 5 of Law 7347/85 brings the legitimate entities to propose the public civil action: the Public Ministry; the Public Defender’s Office; the Union, the States, the Federal District and the Municipalities; municipalities, public companies, foundations and joint-stock companies; the Federal Council of the Brazilian Bar Association (Law 8.906 / 94, article 54, subsection XIV); and associations which have concurrently been established for at least one year under civil law and include, among their institutional purposes, protection of the environment, consumer, economic order, free competition or artistic, esthetic, historical, tourist and landscape heritage; the entities and organs of the public administration, whether directly or indirectly, even without legal personality, specifically for filing a collective action (article 82, III, of the Consumer Protection Code, applicable in an integrated manner to the public civil action system, pursuant to article 21 of Law 7347 / 85). Paragraph 1 of Art. 129 of the CF states that The legitimacy of the Public Prosecution for the civil actions foreseen in this article (including environmental protection) does not prevent a third party, in the same hypothesis, according to the provisions of this Constitution and the law.

  11. 11.

    .” carbon sequestration” is defined as the short- or long-term underground storage or sequestration of anthropogenic CO2 in one or more reservoirs.

Notes

Acknowledgements

The authors gratefully acknowledge support from FAPESP and SHELL Brasil through the ‘Research Centre for Gas Innovation – RCGI’ (FAPESP Proc. 2014/50279-4), hosted by the University of Sao Paulo, and the support given by ANP (Brazilian National Oil, Natural Gas and Biofuels Agency) through the R&D levy regulation.

References

  1. ABNT (2018) Gases do Efeito Estufa. Disponível em. Acessado em: jul:2018Google Scholar
  2. ALMEIDA J. R. L.; ROCHA, H. V.; COSTA, H. K. M.; MOUTINHO, S. E., (2017). The Analysis of Civil Liability Regarding CCS: Brazilian Case. In: 6th Latin American Energy Economics Meeting, 2017, Rio De Janeiro. Anais do 6th Latin American Energy Economics Meeting. Rio De Janeiro: Instituto De Economia da UFRJ. V. 6. P. 1–10, 2017Google Scholar
  3. Barroso, L A (2006) Propriedade dos Recursos Minerais e Propriedade do Solo e do Subsolo no Ordenamento Jurídico Brasileiro. A Lei Agrária Nova, v. 2, pp. 299–309, Disponível em <http://sisnet.aduaneiras.com.br/lex/artigos/pdf/solo.pdf>. Acesso em: 12 Mar. 2019
  4. COMISSÃO MUNDIAL SOBRE MEIO AMBIENTE E DESENVOLVIMENTO (CMMAD) (1988) Nosso futuro comum. Fundação Getulio Vargas, Rio de JaneiroGoogle Scholar
  5. Costa, H. K. Medeiros; Arlota, C. Civil law versus common law: Direitos de Propriedade na Indústria do Petróleo. Revista do Direito da Energia, São Paulo, n. 14, pp. 202–244, 2017Google Scholar
  6. Costa HKDM, Musarra RMLM, Miranda MF, Moutinho Dos Santos E (2018) Environmental license for carbon capture and storage (CCS) projects in Brazil. Journal of Public Administration and Governance 8:163–185CrossRefGoogle Scholar
  7. Gonçalves CR (2013) Direito Civil Brasileiro: Direito das Coisas. 8. ed. São Paulo: Saraiva,. vol. 5Google Scholar
  8. IEA (2016). Decoupling of global emissions and economic growth confirmed. 16 March 2016. International energy agency, Paris Internet: https://www.iea.org/newsroom/news/2016/march/decoupling-of-globalemissions-and- economic-growth-confirmed.html. Accessed 16 Mar 2019
  9. IPCC, Intergovernmental Panel on Climate Change, 2006. IPCC Guidelines for National Greenhouse Gas Inventories, SwitzerlandGoogle Scholar
  10. IPCC, Intergovernmental Panel on Climate Change. Renewable Energy Sources and Climate Change Mitigation. 2015Google Scholar
  11. MACEDO LSV (2017) Participação de cidades brasileiras na governança multinível das mudanças climáticas. Tese (Doutorado em Ciência Ambiental) Programa de Pósgraduação em Ciência Ambiental - Instituto de Energia e Ambiente da Universidade de São Paulo, São Paulo, p 248Google Scholar
  12. MMA MDMA-B (2018) Acordo de Paris Disponível em: Acesso em: julGoogle Scholar
  13. Musarra RMLM, Costa HK d M (2019) Comparative international law: the scope and management of public participation rights related to CCS activities. Journal of Public Administration and Governance (JPAG) 9:93CrossRefGoogle Scholar
  14. Pontes de Miranda FC (1955) Tratado de Direito Privado. Rio de Janeiro: Borsoi, 1955. t. XIGoogle Scholar
  15. SCAFF FF (2015) Royalties de Petróleo, Minério e Energia: Aspectos Constitucionais, Financeiros e Tributários. Revista dos Tribunais, São PauloGoogle Scholar
  16. Torquato-Fernandes AG (2013) Direito Financeiro Aplicado ao Setor do Petróleo. Tese (Doutorado em Direito Financeiro) – Faculdade de Direito, Universidade de São Paulo, São PauloGoogle Scholar
  17. UNITED NATIONS. NAÇÕES UNIDAS, Resolução 1.803 (1962)Google Scholar

Copyright information

© Escola Politécnica - Universidade de São Paulo 2019

Authors and Affiliations

  • Hirdan K. M. Costa
    • 1
  • Raíssa M. L. M. Musarra
    • 1
    Email author
  • Isabela Morbach Machado e Silva
    • 1
  • Romário de Carvalho Nunes
    • 1
  • Israel Lacerda Cavalcante
    • 1
  • Silvia Andrea Cupertino
    • 1
  1. 1.Energy and Environment InstituteSão Paulo University (Instituto de Energia e Ambiente IEE/USP)São PauloBrazil

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