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Potential Regulatory Systems for Carbon Capture and Sequestration Maurer School of Law: Indiana University Digital Repository @ Maurer Law Theses and Dissertations Student Scholarship 5-2017 Potential Regulatory Systems for Carbon Capture and Sequestration (CCS): Legal Analysis of the Current and Future Regulatory Systems and Recommendations for Acceptance in South Korea MoonSook Park Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the Comparative and Foreign Law Commons, and the Environmental Law Commons Recommended Citation Park, MoonSook, "Potential Regulatory Systems for Carbon Capture and Sequestration (CCS): Legal Analysis of the Current and Future Regulatory Systems and Recommendations for Acceptance in South Korea" (2017). Theses and Dissertations. 38. https://www.repository.law.indiana.edu/etd/38 This Dissertation is brought to you for free and open access by the Student Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. POTENTIAL REGULATORY SYSTEMS FOR CARBON CAPTURE AND SEQUESTRATION (CCS) : LEGAL ANALYSIS OF THE CURRENT AND FUTURE REGULATORY SYSTEMS AND RECOMMENDATIONS FOR ACCEPTANCE IN SOUTH KOREA MoonSook Park Submitted to the faculty of Indiana University Maurer School of Law in partial fulfillment of the requirements for the degree Doctor of Juridical Science May 2017 i ii ACKNOWLEDGEMENTS First of all, I would like to express my deepest appreciation and respect to my advisor, Professor John Strait Applegate. Through numerous invaluable and helpful discussions with him, I have been able to find the right direction of my dissertation and enlarge my legal perspectives. Without his guidance, this dissertation would not have been completed, and I am deeply grateful for all his help and support from the bottom of my heart. I would like to also extend my sincere gratitude to the committee members: to Professor Daniel Cole for his valuable comments, feedback, and discussion, to Professor Donald Gjerdingen for his helpful advice and encouragement, and to Professor John Rupp for providing me with plenty of his time for discussion and giving me valuable feedback and insights. Specifically, I have greatly benefited from Professor Rupp in addressing technical issues of my dissertation. In addition, I would like to extend my sincere thanks to Dean Lesley Davis, Professor Gabrielle Goodwin, and Professor Lisa Farnsworth for their warm help, kindness, and encouragement, which enabled me to finish this long journey of LLM and SJD program. I would like to also note my thanks to my editor and friend, Megan Binder, for her commitment of editing this dissertation. I wish to express my heartfelt appreciation to my loving family, my father, YeongKyu Park, my mother, YongBae Cho, and my siblings, JiSook Park and JongBum Park. I am grateful for their love, support, and perseverance. Finally, I would like to convey my special thanks to my husband, Kihwang Ryu who was willing to come here with me to share all the joys and challenges during my study. iii ABSTRACT The purpose of this dissertation is to create legal and regulatory systems for Carbon Capture and Sequestration (CCS), based on demonstrating rationales of this technology. This dissertation analyzes whether or not existing international and domestic (including the United States, Australia, China, and South Korea) laws could cover potential legal issues. After exploring desirable directions for addressing key legal issues regarding CCS, this dissertation ultimately aims to set up a legal and regulatory framework for CCS in South Korea. Specifically, permits, environmental impact assessments, liability, and property rights issues are of common importance, which are priority areas to establish well. In resolving each of these issues, the precautionary principle and the polluter pays principle should be realized. Furthermore, a flexible approach to these principles’ interpretation and application is also needed in order for the implementation of CCS to be carried out safely and smoothly through all the processes. The government plays a crucial role in many aspects, such as through regulatory surveillance, as well as facilitating CCS implementation and sharing liability associated with CCS. From an international dimension, the incorporation of CCS into Clean Development Mechanism (CDM) would be efficient system, but clear standards for it are insufficient. Additionally, it is also important to establish international systems for CCS in order to cope with potential various scenarios associated with transboundary CCS projects and transboundary liability issues. iv TABLE OF CONTENTS I. Introduction .................................................................................................................. 1 II. What CCS is and why it is important .......................................................................... 6 A. The concept and characteristics of CCS ............................................................... 6 B. The important role of CCS ................................................................................. 10 i. CCS technology responding to the climate change crisis ............................. 10 ii. The role of CCS as a bridge technology ...................................................... 13 ii. Current status of CCS as an upcoming technology ..................................... 19 C. Concerns on CCS technology and Rationale for CCS regulation ...................... 22 i. Technical leakage concern ............................................................................. 23 ii. Administrative leakage concern ................................................................... 27 iii. Financial concern ........................................................................................ 28 iv. Summary ...................................................................................................... 31 III. Required elements for CCS implementation ........................................................... 32 A. The economic and social elements of CCS ........................................................ 32 i. Economic elements of CCS ........................................................................... 32 ii. Social elements of CCS ................................................................................ 39 B. The technical and scientific elements of CCS .................................................... 42 C. The legal and regulatory structure for CCS ........................................................ 47 v i. Importance of the legal and regulatory system .............................................. 47 ii. Directions and key elements ......................................................................... 49 iii. The legal and regulatory framework, embracing environmental principles 52 iv. Summary ...................................................................................................... 57 IV. Current domestic and international legal framework regarding CCS ...................... 58 A. Domestic level analysis for CCS ........................................................................ 58 i. The United States .......................................................................................... 58 ii. Australia ....................................................................................................... 70 iii. China ........................................................................................................... 76 iv. South Korea ................................................................................................. 81 B. International level analysis for CCS ................................................................... 86 i. Climate change legislation regarding CCS .................................................... 87 ii. Marine environmental protection legislation regarding CCS....................... 92 iii. Other international legislation, guidelines, and standards relevant to CCS 98 iv. The CCS incorporation into the CDM ....................................................... 103 C. An evaluation and analysis of the regulatory gaps under the current domestic and international systems ..................................................................................114 i. The United States .........................................................................................115 ii. Australia ......................................................................................................118 iii. China and South Korea ..............................................................................119 iv. Summary of current domestic and international CCS systems ................. 120 vi V. Potential changes to legal and regulatory frameworks for CCS covering current gaps ................................................................................................................................. 122 A. Main elements and possible additions to domestic CCS legal structure .......... 122 i. The government’s role in permit systems .................................................... 122 ii. The government’s role in risk assessment .................................................. 130 iii. The need for liability transfer to the government ...................................... 136 iv. Property right issues regarding CCS
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