Energy Law and the Environment

Oil and Gas Pipelines

There are thousands of miles of pipelines that cross international boundaries globally.  Over 10,000 miles of new pipelines are constructed each year, of which over 3,000 of them are offshore. Approximately 65% of these pipelines carry natural gas, 20% carry petroleum products, and 15% carry crude oil. These pipelines present environmental risks, as well as human rights concerns in developing countries – and even in the United States (see the Dakota Access Pipeline controversy).

Nuclear Safety and Nuclear Transport

1994 Convention on Nuclear Safety

The IAEA set the 1994 Convention on Nuclear Safety to maintain nuclear safety standards worldwide, to maintain effective defenses against radiological hazards, and prevent radiation emitting accidents. The parties to the agreement are required to develop a national framework to address:

  •  The safety of nuclear installations
  • The establishment of national safety regulations
  • A national licensing system
  • An inspection and regulatory system
  • Enforcement of regulations and licenses
1997 Joint Safety Convention

The 1997 Joint Safety Convention addresses the need to manage spent fuel and radioactive waste management from energy facilities.  Scoped out of the agreement was spent fuel from reprocessing facilities, naturally occurring radiation, and military programs.

1980 Convention on Physical Protection of Nuclear Material

Parties must ensure that the transport of nuclear materials complies with required safety provisions contained in the agreement.

1993 IMO International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships (INF code)

Covers transport by ship of:

  • Irradiated nuclear fuel
  • Plutonium
  • High level radioactive waste
Civil Liability for Damages

Two separate systems exist to address civil liability for damage from peaceful use of nuclear energy.  The Nuclear Energy Agency (NEA) set us a regime at the 1960 Paris Convention, and the International Atomic Energy Agency (IAEA) established a second regime at the 1963 Vienna Convention.

The Paris Convention signatories were predominately the OECD nations, and the Vienna Convention had a broader spread. Each of the conventions cover:

  • Definition of liability
  • Attribution to civil parties
  • Quantification of upper and lower limits of compensation
  • Access to justice
  • Maintenance of mandatory insurance

In 1988, the NEA and IAEA established a “Joint Protocol” link between the two conventions.

In 1963, the Paris Convention was supplemented with funding sources at the 1963 Brussels Supplementary Convention joint funded by state parties. The 1997 Protocol to the Vienna Convention ensured the funding regime for the Vienna convention signatories. The goals are to balance the need for a strong system of compensation in the event of damages, while protecting the industry from unlimited liability.

Liability is directed to the operator of the facility or ship causing the damage. States in these regimes have set limitations on liability , and the states that are signatories are subject to pay any shortfall.

Oil Pollution from Ships

UNCLOS

UNCLOS regulates the prevention of pollution from vessels. Under UNCLOS, states may establish special rules for entry into their internal waters and ports.

MARPOL

The International Convention for the Prevention of Pollution from Ships (1973) was absorbed by Protocol in 1978 and is now known as MARPOL. MARPOL establishes specific international regulation to implement goals for the complete elimination of pollution of the marine environment by oil or other harmful substances.

MARPOL requires parties to apply the convention to ships of non-parties and is based on certification by flag states. The MARPOL covers the following:

  • Pollution by oil
  • Pollution by noxious liquid
  • Pollution by harmful substances carried by sea in packaged form
  • Pollution by sewage by ships
  • Pollution by garbage from ships
  • Air pollution from ships

MARPOL states are not bound by amendments they have not accepted, so the flag states are subject to different regulations.

Civil Liability Regime

The Torrey Canyon spill in 1967 caused the international community to establish liability guidelines for oil spills.

1992 Civil Liability Convention (CLC)

The 1992 CLC establishes liability for a shipowner for pollution of oil escaping the ship as a result of the incident on the territory of a party. The CLC establishes compensation limits and widened the scope to cover pollution in the EEZ or equivalent area of a state party. A 2001 CLC raised liability limits and is financed by contributions payable by oil receivers.

1992 Oil Fund Convention

The 1992 Convention gives relief to shipowners regarding additional financial burdens for compliance with the CLC. It transfers some of the liability to the oil cargo owner and provides additional compensation for victims of oil pollution. This established the International Oil Pollution Compensation (IOPC) Fund to cover damages from accidents and incidents.

2001 Bunker Convention

The 2001 Bunker Convention was adopted to ensure adequate compensation is available damage caused by fuel spills from ship bunkers. It applies to all damages in territorial seas and the EEZ. The owner of the ship must maintain compulsory insurance to cover this loss.

US Oil Pollution Act of 1990

This act is significantly more punitive than the above conventions – putting unlimited liability on carriers for gross negligence.

Marine Pollution from Seabed Activities

This type of pollution – caused from the release of harmful substances arising from the exploitation, exploration and processing of seabed materials – is regulated by UNCLOS. States have failed to agree on common international responsibility and liability scheme relating to pollution from offshore installations.

For the United States, the US Oil Pollution Act of 1990 governs these activities. The North Sea oil producing nations have subscribed to a voluntary oil pollution scheme known as OPOL. Article 194 of UNCLOS requires coastal states to adopt measures to minimize pollution from installation on the seabed and protect rare or endangered ecosystem. MARPOL is explicitly scoped out of seabed activities.

The 1994 Offshore Protocol to the Barcelona Convention on the Protection of the Mediterranean Sea (the Madrid Protocol) aims to establish a liability and compensation regime for pollution from offshore activities. It does not establish a civil liability regime, but does call for the establishment under national law the liability of the operator for damage.

Regulation of Offshore Dumping

Dumping is a major source of pollution from oil platforms. Dumping of dredged materials from harbors and rivers, sewage, chemical waste, construction debris etc. contributes about 10% of total marine pollution. UNCLOS requires states to adopt regulations to prevent, reduce and control dumping. States must establish global, regional and national rules and standards.

The most universal instrument covering dumping is the 1972 London Convention. UNCLOS requires coastal states have laws that are at least equal to global rules and standards and must ensure that dumping within a territorial sea or EEZ is carried out with their permission. the global standards are presumed to be those adopted as part of the 1972 London Convention. The London Convention classifies pollutants in three categories by annex, with Annex 1 being prohibited from dumping, Annex 2 are dangerous but may be dumped with permit and in limited quantities, and Annex 3 which are not dangerous but may have adverse impact on the marine environment. In 1993, the convention was amended to add industrial and radioactive wastes to those items prohibited from dumping. Sea incineration of these same wastes were also prohibited.

The 1996 London Convention, designed to replace the 1972 London Convention, is far more restrictive on what may be dumped, and also adds a “polluter pays” principal for civil liability. Marine geoengineering is also covered by the 1996 Protocol.