Legal Framework for the Coordination of Competing Uses of the Underground in Germany

Abstract

Suitable geological sites for underground storage are limited. Therefore it is important to coordinate the combined use of underground for different storage purposes (in particular gas, oil, compressed air and CO₂) as well as for other uses (in particular geothermal energy, mining). This paper proposes to examine the legal framework in Germany as well as in the EU CCS directive. Land use in Germany is subject to regional planning. Yet the existing plans only rudimentarily cover underground sites. So far a decision on competing uses of these sites therefore has to be taken mainly within the framework of the authorization procedures for underground uses. In general two coordination mechanisms can be distinguished: the conferral of an exclusive right on the company for exploration / production / CO₂ storage purposes, which excludes its use by other companies for the same purpose, and the authorization, in the absence of such exclusive rights, r within the operations plan procedure according to German mining law. This paper gives an overview of the authorization regimes which exist for different uses of underground which have been little explored in comparison. The recent German CO₂ Storage Act is taken into account. The result is that for most cases there are no general statutory criteria giving priority to specific uses of underground. Therefore an authority will have to base its decision on a case-by-case analysis. Due to the lack of guidance on the weight that has to be attached to the different purposes it is difficult to predict the outcome of the selection decision. The resulting legal uncertainty may hamper investments, yet granting priority to a specific use needs detailed analysis of the competing projects which in general cannot be accomplished by legal means.