On May 29, 2024, the German Federal Cabinet adopted a draft law to amend the Carbon Dioxide Storage Act (Kohlendioxid-Speicherungsgesetz – KSpG) and key points of a carbon management strategy. The draft law is based on a draft bill from February 26, 2024, which has been partially refined. In future, the law will be known as the Act on the Permanent Storage and Transportation of Carbon Dioxide (Kohlendioxid- Speicherungs- und -Transportgesetz – KSpTG).
The aim of the amendment is to promote the decarbonization of German industry and Germany's competitiveness, to create a secure legal framework for the onshore and offshore storage of carbon dioxide (CO₂) and the construction and operation of privately owned CO₂ pipelines for the transport of CO₂.
According to the German government, Germany will not meet its climate targets without the introduction and facilitation of carbon capture and storage (CCS) and carbon capture and utilization (CCU) technologies. The aim of using these technologies is to ensure that emissions that are difficult to avoid or unavoidable are not released into the atmosphere. The use of these technologies is controversial among environmental associations, while the industry has been calling for their approval for some time.
In Germany, there is currently no CO₂ pipeline infrastructure that could be used to transport large quantities of CO₂, nor are there any commercially used or usable CO₂ storage facilities.
The regulatory regime for CO₂ pipelines was previously contained in the KSpG and the Environmental Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfungen - UVPG). There is legal uncertainty as to whether CO₂ pipelines could be subject to planning approval (Planfeststellung) under the UVPG and whether the KSpG only covers pipelines that lead to storage facilities.
Storing CO₂ has so far only been possible for research purposes. Currently, CO₂ could theoretically be exported for storage. The export of CO₂ for offshore storage is prohibited by Article 6 of the London Protocol. The London Protocol was adopted on November 7, 1996, to modernize the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and ratified by Germany. It serves to protect the sea and prohibits the dumping of waste and other substances on the open sea, thereby preventing marine pollution. It contains a list of substances that can only be dumped in compliance with various requirements. CO₂ can therefore generally be considered suitable for deposit. The export of CO₂ for storage abroad could be permitted by ratifying a corresponding amendment to Art. 6.
CCS and CCU should only be eligible for funding and usable if the emissions cannot be avoided or saved by other means, or only with great difficulty. According to the German government, lime and cement production and waste incineration in particular are potential areas of application. It emphasizes that it remains committed to the coal phaseout and that access to CO₂ storage and CO₂ pipelines will not be permitted for emissions from coal-fired power plants and coal-fired combined heat and power plants. In particular, there should be no funding for CCS or CCU applications at fossil fuel–fired power plants.
In contrast to the KSpG, the KSpTG is also intended to enable the transportation of CO₂ for purposes other than storage.
The underground storage of industrially generated CO₂ shall be permitted offshore in certain areas of the continental shelf and Germany's exclusive economic zone (i.e., the sea area seaward of the territorial sea (12 nautical mile zone) up to a maximum of 200 nautical miles). Marine protected areas and a buffer zone of 8 km around them are excluded from the possibility of use.
The federal law is intended to make onshore storage only eligible for approval for research purposes. In this respect, the draft law falls short of the industry's expectations. An opt-in clause is intended to enable the federal states to adopt their own regulations on onshore storage in their state.
The cabinet draft refers to the Electricity and Gas Supply Act (Gesetz über die Elektrizitäts- und Gasversorgung – EnWG) and the German Administrative Procedure Act (Verwaltungsverfahrensgesetz); thus, regulations that have proven their worth in the planning of gas pipelines, for example, can also be applied in the KSpTG in future. The planning approval procedure required for the approval of the construction or operation of a CO₂ pipeline will be aligned with the procedure for pipeline projects under the EnWG. An environmental impact assessment will have to be carried out for all CO₂ pipelines as part of the planning approval procedure. Ancillary facilities that are required to operate the pipelines can be considered in the planning approval procedure for the pipelines, eliminating the need for time-consuming individual approvals. It should also be possible to rededicate existing gas pipelines and use them as CO₂ pipelines.
If the construction, operation, or modification of CO₂ pipelines is to take place predominantly or directly next to a route for hydrogen pipelines, it can be assumed under the new Section 4 (1) KSpTG that the installation of such a CO₂ pipeline (unless there is evidence to the contrary) does not represent any additional impairment of other interests that goes beyond the sole laying of the hydrogen pipeline. It could therefore be laid in parallel.
The competent authority under federal state law is responsible for enforcing the law, even if the exclusive economic zone or the continental shelf is affected. Even after the plan approval decision has been issued, the plan approval authority remains responsible for appropriate monitoring measures, compliance with the environmental provisions of the plan approval decision or ensuring that the plan is approved during the implementation of the project. As part of the planning approval procedure, various participation procedures, opinion requirements, and agreement regulations must be considered and completed. For example, the Federal Institute for Geosciences and Natural Resources (Bundesanstalt für Geowissenschaften und Rohstoffe), the Federal Environment Agency (Umweltbundesamt) and the Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie) would have to be involved in certain constellations. Compared to the ministerial draft, the cabinet draft contains shorter comment periods and fictitious regulations to speed up the procedure.
CO₂ storage facilities may only be permitted if they do not interfere with the construction and operation of offshore wind turbines and offshore connecting pipelines, other energy generation facilities to produce hydrogen, and hydrogen pipelines.
The amendment also provides for an extension of the expropriation regulations, which could facilitate the expansion of the infrastructure.
The planned amendments to the KSpG would be a first step towards enabling investment in the necessary technologies and the construction of the CO₂ pipeline infrastructure. Industries in which a transition to electricity from renewable energies is not sufficient or CO₂ cannot be avoided could thus be put in a position to achieve the climate neutrality required by law from 2050. However, further legislative changes and the amendment of the London Protocol are required to make such investments legally possible. As the German government already notes in the justification of the draft law, the short-term implementation of this amendment and the efficiency of the procedures is a necessary prerequisite for the use of CCS and CCU technologies being able to contribute to achieving the climate protection targets.
In order for the changes to become effective, Bundestag and Bundesrat must now approve the law.
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