Definition of "carbon business" and "carbon"
The Draft Petroleum Act defines "carbon business" as "an exploration for a carbon storage site or a storage of carbon in a carbon storage site," and defines "carbon" as "carbon dioxide in the state of gas or supercritical fluid generated as a by-product or captured from other sources and is transported to store in a carbon storage site".
While neither current Thai laws nor the Draft Petroleum Act clearly prescribe the status of "carbon" as defined under the Draft Petroleum Act, i.e., whether it should be treated as "waste," "resource," or other categories of substances, there has been a study that demonstrates that the different treatment of carbon can lead to a significant impact to the CCS legal framework. Therefore, the developments in this area need to be closely monitored.
Who can conduct carbon business?
In addition to the concessionaires, production-sharing contractors, and service contractors, the Draft Petroleum Act also allows anyone who wishes to conduct carbon business to obtain a carbon business license from the Minister of Energy. The issuance of carbon business licenses in both cases will require approval from the Petroleum Commission.
The issuance of a carbon business license for those who are not the concessionaires, production-sharing contractors, or service contractors mentioned above will be granted through a bidding process for carbon business to be announced by the Minister of Energy.
A carbon business license will impose, among other things, terms and conditions on the following:
- Revenue and expenses under the carbon business.
- Allowed quantity and maximum pressure in the carbon storage site.
- Monitoring plan and conditions to update the monitoring plan.
- Reporting obligations and remedial measures in the event of carbon leakage, movement or other irregularities.
- Technical conditions for carbon storage site closure and post-closure plan.
- Post-closure obligations.
In terms of the project site, under the Draft Petroleum Act, the Minister of Energy may consider prescribing the areas which are appropriate for the CCS project (whether such areas are within the current petroleum concession area or not).
Liability of carbon business operators
The permitted carbon business operators are required to monitor and inspect the carbon storage site and the site facilities to detect any potential issues, including the impact to the surrounding environment. The closure of a carbon storage site can be conducted upon completion of all terms and conditions under the carbon business license, or upon obtaining approval from the Director-General of the DMF, or in the event of revocation of the carbon business license.
After the closure of a carbon storage site, the carbon business operator is still required to conduct monitoring, inspection and surveillance of the carbon storage site until:
- The carbon storage in such carbon storage site is fully complete.
- The security for liability transfer, covering the period of three years after the closure of the carbon storage site, has been placed to the Director-General of the DMF.
- The decommissioning of the facilities for carbon storage purposes is complete.
Upon the completion of the above terms and conditions, the liability of the carbon business operator will be transferred to the DMF. Note that the security for this purpose can be made in cash, Thai government bond, bank guarantees or other types of securities in line with the Ministerial Regulation to be further prescribed.
Others
Some other certain provisions, including those related to general provisions, petroleum exploration and production, and benefits, rights and obligations of concessionaires under the current Petroleum Act will apply to carbon businesses, as long as they do not contradict the Chapter related to carbon business.
We note that while the Draft Petroleum Act briefly addresses legal licensing of carbon businesses, the liabilities of the carbon storage operator, and the authorities of the relevant government agencies, there are some key issues which it is silent on. Some of these issues include the classification of carbon dioxide and the liabilities arising in case of carbon leakage. Furthermore, the carbon businesses may be subject to the Environmental Impact Assessment (EIA) or Environmental Health Impact Assessment (EHIA), to be further prescribed by the notification of the Ministry of Natural Resources and the Environment.
The Draft Petroleum Act will provide a legal framework for conducting carbon business. We will monitor the development of the draft and keep you updated. For details related to CCS, please contact us.
