Applying Principles of Environmental Law to Novel Technologies: The Case of Carbon Capture and Storage

This article considers how principles of New Zealand's environmental law can be applied to novel or emerging technologies. Specifically, it considers the example of regulating a novel technology called carbon capture and storage (CCS). The technology is one way to mitigate anthropogenic climate change, by capturing carbon dioxide (CO₂) emissions at point sources (such as power or industrial plants) and injecting them into deep underground geological formations. It is already happening in many parts of the world. CCS can have adverse impacts on the local environment, but it also provides an opportunity to assist in mitigating global climate change. International experience of CCS reveals that the law can struggle to regulate novel technologies having environmental impacts. In many countries, law and policy makers have found themselves in a reactive position; industry has pressed forward with deployment, with government rushing to put appropriate environmental legal frameworks in place ex post facto. This regulatory panic has meant that choices of legal frameworks have not generally been based on close consideration of environmental legal principles, but rather on pragmatic questions of time, the location of technical expertise and resourcing. This can produce unexpected and undesirable results, as environmental laws designed for one context are applied to a completely different one. New Zealand, like some other countries, is in a fortunate position. This is because CCS has not yet occurred in its territory. There is a potentially brief but vital window of opportunity to consider how the technology should be regulated. This article argues that a close assessment of legal principles is required as a normative guide to CCS regulation, but that it can be extremely difficult to translate those principles to novel technological contexts. Nevertheless, it is an exercise well worth doing if the climate benefits of CCS are to be realised. It is also a conversation that is essential when countries are regulating novel technologies more generally. We live in an age where many such technologies are emerging — especially as responses to global environmental problems — and laws need to adapt in considered and principled ways.