Abstract

This article deals with the core regulatory challenges posed by the use of two currently widely discussed technologies, Carbon Capture and Storage (CCS) and Carbon Capture and Utilisation (CCU). First, these technologies, their different applications and their possible classification as negative emission technologies are presented. In addition to the technological background, their – highly controversial – discussion in climate policy debates is central to this understanding. The central focus lies on the legal situation in Germany. Here, the legislative history surrounding the Act on the Demonstration and Application of Technologies for the Capture, Transport and Permanent Storage of Carbon Dioxide (KSpG), adopted 2012, is discussed. The current regulatory framework at a national level stems from this law as well as emission control law and other environmental regulations.

Based on criteria from the reasons given by the Federal Constitutional Court in its climate decision, the regulatory challenges with regard to the use of the technologies are then discussed in more detail. Specifically, five aspects are addressed: economic viability, technical feasibility, international coordination, social impacts, and emerging ecological risks. These criteria can be used to identify key points for further regulatory development. This concerns a possible new regulation of the largely functionless KSpG, the uniform regulation of the cross-border transport of CO2, differentiations by limiting the use to certain industries, time period or scope as well as questions of fine-tuning financial incentives for the use of these technologies, especially in emissions trading as well as the taxonomy regulation.