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.
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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).
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.
The exclusion of substances considered hazardous waste by the Brazilian environmental agency should be considered.
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.
UPGN: Natural gas processing unit. Industrial facility that separates heavy (propane and heavier) fractions from natural gas, methane and ethane.
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).
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;
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.
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.
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.
.” carbon sequestration” is defined as the short- or long-term underground storage or sequestration of anthropogenic CO2 in one or more reservoirs.
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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.
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Costa, H.K.M., Musarra, R.M.L.M., e Silva, I.M.M. et al. Legal Aspects of Offshore CCS: Case Study – Salt Cavern. Polytechnica 2, 87–96 (2019). https://doi.org/10.1007/s41050-019-00011-4
- Carbon Capture and Storage (CCS)
- Legal Aspects of CCS; Brazilian PreSalt Area; Salt Cavern
- Greenhouse Gases (GEEs) Mitigation