Washington International Law Journal


Adam M. Andrews


Australia has identified carbon capture and geo-sequestration (“CCS”) as a partial solution to the problem of global warming. CCS involves capturing carbon dioxide from large point-source emitters, such as power plants, and injecting it deep below ground level for disposal. Australia has not yet enacted CCS-specific regulations. As it stands now, Australia’s third-party access law, Part IIIA of the Trade Practices Act, creates regulatory uncertainty for CCS infrastructure projects and will deter investment in the industry. This regulatory uncertainty results from the ambiguous criteria used to determine whether a piece of infrastructure is appropriate for third-party access. Legislators could address the ambiguity of Part IIIA by creating an industry specific third-party access regime for CCS. However, doing so would be difficult without foreknowledge of how the industry will develop, would generate significant compliance costs, and would also likely deter investment. In the near term, CCS should be exempted from Part IIIA altogether to encourage private companies to invest in CCS. Exemption would provide investors with the expectation that they can recoup the costs of their investments without submitting to mandatory access requirements.

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