This article looks to the nature of the law needed in the future, with an examination of the treatment in law of the injection of CO2 beneath the seabed: should it be classified and handled as a form of pollution or dumping of waste, or as a beneficial tool to help mitigate climate change?

In a tiny fraction of Earth’s history, humanity has induced climate change on an unprecedented scale. Despite widespread consensus that a changing climate threatens the very existence of the human species, even now effective measures are not in place to prevent it. Reducing CO2 emissions to safe levels, bringing with it real or perceived reductions in development capacity, is proving extremely difficult to achieve.

It is in this context that people are increasingly turning to technology and science for solutions that soften the impact of the carbon-intensive activities seen to be crucial to continued economic growth. One measure that has gained particular credence in recent years is carbon capture and storage (CCS). This involves the capture of CO2 emissions at point sources (such as power stations or industrial plants) and the injection of compressed CO2 streams into deep and secure subsurface formations. CCS has been occurring beneath the North Sea for over 20 years, and large-scale operations are now appearing across the globe. The focus of this article is on marine CCS – where injection occurs under the seabed.

Technological developments such as CCS do not exist in a normative legal or policy vacuum. Legal frameworks have generally not contemplated CCS specifically, so lawmakers must choose how and where it is to be regulated. Overseas, it has been common for regulatory and policy responses to CCS to be driven by industry or public perception of the technology rather than by well considered or principled normative positions. For example, negative community perception of land-based CCS in Europe has proved fatal to largescale projects in recent years, and essentially forced future deployment offshore. In some countries, CCS has captured the public imagination as a measure perpetuating the extraction of coal, with the substantial normative baggage that this framing brings (Global CCS Institute, 2015a, p.3). Some jurisdictions have also chosen to regulate CCS as an extension of petroleum legislation rather than an activity in its own right, because of pragmatic considerations (new legislative schemes are hard to create) or fears of petroleum proponents that an independent CCS industry will threaten their interests (Barton, Jordan and Severinsen, 2013, p.342). Among a raft of normative questions such as these, one stands out as being particularly important for the future of marine CCS deployment, and is the subject of this article: should the injection of CO2 beneath the seabed be treated in law as a form of pollution, waste, dumping or other similar concept?

Recomendations for New Zealand are made.