Published: 28 May 2020 Author: Kristina Schönfeldt
In spring 1995, the Brent Field – an oil and gas development area located 186 km north-east of the Shetland Islands in the North Sea and thus under the jurisdiction of the United Kingdom – gave rise to a heated public debate. Greenpeace activists from Germany protested against the sinking of the Brent Spar, an oil storage facility and tanker loading buoy in the Brent Field operated by the petroleum company Shell UK, fearing disastrous consequences for the marine environment. Germany and Iceland shared their concerns and formally objected to the disposal of Brent Spar at sea.
Despite having the support of scientists, Shell UK lost any public support for its decommissioning plan and gave in to the protests by deciding to dismantle Brent Spar at shore. Brent Field turned into a battlefield between environmentalists and the extraction industry, becoming a lasting symbol for the conflict between the environment and the economy. The incident triggered substantive changes to the international legal framework concerning the decommissioning of offshore installations.
Sometimes, history repeats itself. Twenty-five years later, the Brent Field was again thrust into the public spotlight when Shell UK announced its plan for decommissioning four oil platforms in the Brent Field. Part of the plan was to leave in place the supporting structures of the steel jacket platform Brent Alpha and the concrete gravity-based structures (CGBS) Bravo, Charlie and Delta in the North Sea. At 300 meters, these gravity-based concrete installations are as tall as the Eiffel Tower and weigh 300,000 tonnes each. According to the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety, following through with this plan would mean that:
“in addition to the supporting structures that extend above the water’s surface, a total of 62 approximately 65-metre tall large-volume storage cells and drilling legs would also be left behind, filled with around 640,000 cubic metres of oil-contaminated water and 40,000 cubic metres of oil-contaminated sediment, containing more than 11,000 tonnes of crude oil.”
On 7 January 2019, the British Government initiated a formal consultation procedure in accordance with Decision 98/3 under the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic. It was announced that Shell’s application was supported and that derogation permits were intended to be issued allowing the structures to be left in situ.
Just as back in 1995, protest against the plan was swift. Greenpeace activists boarded the respective offshore installations and unfurled several banners reading, “Clean up your mess, Shell!” and “Shell! Stop Ocean Pollution”.
The German Federal Government also considered it unacceptable to leave in place 11,000 tonnes of crude oil in the platforms and the platforms themselves in the North-East Atlantic. It took the position that:
“The extraction of oily liquids and sediment by means of suction is technically feasible, in principle. This is also verified by independent evaluations. However, these evaluations also show that Shell has not sufficiently considered the removal of the structures. In Germany’s view, it is necessary to remove structures which reach up to 55 metres below the water’s surface as it poses a serious threat to shipping and fisheries and could thus constitute a potential risk to the environment in the long term.”
Consequently, in April 2019 Germany submitted a formal objection to the British Government regarding the planned approval of Shell’s proposed decommissioning programme. When the objections could not be solved in mutual consultations, Germany in June 2019 requested a special meeting of the OSPAR Contracting Parties to discuss Shell’s plans in detail – a move supported by several other parties to the Convention.
In the run-up to this special meeting on 18 October 2019, a spokesperson for the Federal Ministry of the Environment set out Germany’s position in the regular government press conference on 16 October:
“Germany will call a special meeting of the Council for the protection of the North-East Atlantic on Friday. The main issue will be that the company Shell refuses to remove four larger oil platforms that have seen their day and are no longer in use. These oil platforms contain approximately 11,000 tonnes of crude oil. Germany considers it totally unacceptable that this volume of crude oil remains in these structures and has therefore submitted an objection to this action. That is the reason for the special session in London on Friday. Several countries bordering the north-east Atlantic support the approach to counter this situation. […]
The meeting will focus on how to deal with these oil platforms, which have now been in the North Sea for quite some time. From a German perspective, these oil platforms must be dismantled. We do not want a second ‘Brent Spar’ as in 1995. For us, the main point is that these oil platforms contain an enormous amount of oil residues. This amount must be disposed of. Otherwise, these gravity base structures pose a considerable environmental hazard. They are also a danger to the safety of navigation and maritime traffic. […]
Today, such gravity base structures must be dismantled. There are, however, several very old oil platforms, and it is precisely these platforms that are at issue. This new regulation does not apply to these old platforms. That is why we need to call emphatically for the removal or dismantling in this case, which, from our point of view, is inevitable. I have already described the risk. We must expect more oil platforms to be decommissioned in the coming years, and that makes it all the more important in this case to show clearly how necessary it is to dismantle [these platforms], and also to state clearly once again that this dismantling is also technically feasible.”
The next day, the Permanent Secretary at the Federal Ministry for Environment, Nature Conservation and Nuclear Safety set the tone for the upcoming meeting:
“Now, 25 years after Shell’s plan, which ultimately did not go ahead, to simply sink the Brent Spar oil platform into the North Sea after decommissioning, this special meeting will be a litmus test for the OSPAR countries: we are creating a precedent. For the first time, the OSPAR decision negotiated in light of the Brent Spar incident will be applied and there are a large number of platforms to be decommissioned in the coming years. I hope that all Parties to the Convention, without exception, are aware of their responsibility and reject Shell’s current plans. Otherwise, we throw the gates wide open for unpredictable environmental consequences.”
The special meeting in London was attended by 11 of the 16 Contracting Parties of the OSPAR Convention along with Shell UK as the operator of the Brent Field. Greenpeace and Seas at Risk, as well as the International Organisation of Oil and Gas Producers, were present as observers. At the meeting, Shell UK stated that it had explored potential reuse options but did not consider these options viable due to the age of the installations and the distance to shore. Their comparative assessment recommended leaving in place the footings of the Brent Alpha Steel Jacket and Brent Bravo, Brent Charlie and Brent Delta gravity-based concrete installations, including the legs penetrating the sea surface, the sediments and oily water in the storage cells and the contaminating material in the legs.
After the United Kingdom had presented its derogation proposal, the German representative set out Germany’s main concerns: the comparative assessment methodology used by Shell UK, the likely long-term risk to the marine environment due to hazardous substances and oil residues left in the cell tank structures, and the risk of the CGBS legs to shipping and fishing also being a legacy environmental hazard. In particular, with regard to the cell content, Germany expressed its concern of leaving in situ 640,000 m3 of oily water and 40,000 m3 of sediment containing 11,000 tonnes of crude oil. The effects on the marine environment were unpredictable as the chemicals contained in the sediments were unknown. Germany considered that the volumes and composition of the cells needed further assessment. Germany highlighted the uncertainties on long term environmental projections and questioned the operator’s liability in 200 years’ time. It also recalled the environmental responsibility of Contracting Parties to ensure consistency with the commitment to the United Nations’ Sustainable Development Goals in managing this legacy towards future generations. Concerning the management of the CGBS legs, Germany argued that leaving the legs in place posed a long-term risk for shipping as maritime traffic was predicted to increase in the future in the North Sea area, and that there was a risk of the legs collapsing over time in an uncontrolled manner. Germany considered that this risk could be addressed through a controlled placement of the legs on the seabed. Several other States shared the concerns raised by Germany.
The meeting concluded with the United Kingdom stating that it would consider all views expressed at the meeting and would engage in further discussions with parties before taking a decision on whether to issue the permit for derogation. Germany responded by declaring its full support and willingness to consult further – both bilaterally and within an OSPAR context – in order to seek a viable and agreeable solution to the questions discussed.
Commenting on the outcome of the special meeting, the Permanent Secretary at the Federal Ministry for Environment, Nature Conservation and Nuclear Safety stated:
“We can only guarantee the extensive protection of our oceans through comprehensive cooperation of all littoral countries. Today’s meeting emphatically proved that the OSPAR Commission is just the right place for this cooperation. We welcome the UK’s willingness to hold off on issuing a derogation permit and to engage in further consultations before taking a decision. We now have an opportunity to lay down a clear procedure for the future on the environmentally sound disposal of disused oil platforms. Particularly now, at a time when we have undertaken to gradually phase out oil, gas and coal, we have to adopt a safer, environmentally sound and climate-compatible approach to managing the legacies of these energy sources. The close cooperation of the OSPAR Contracting Parties provides a good basis for achieving this.”
This was the first ever special consultative meeting in accordance with Annex 3 of Decision 98/3 on the Disposal of Disused Offshore Installations under the OSPAR Convention. The Convention serves as the main legal framework for decommissioning offshore installations in the North-East Atlantic (comprising the North Sea, the Arctic Waters, the Celtic Seas, the Bay of Biscay and the Iberian Coast) and the Wider Atlantic. Article 2(1)(a) of the OSPAR Convention outlines the main objective of the regime on the decommissioning of offshore installations and structures, requiring the Contracting Parties to “take all possible steps to prevent and eliminate pollution and […] take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected.” Article 5 substantiates this obligation, committing the Contracting Parties to take “individually and jointly, all possible steps to prevent and eliminate pollution from offshore sources in accordance with the provisions of the Convention, in particular as provided for in Annex III.” These provisions are accompanied by a commitment to several general principles of international environmental law, such as the precautionary principle, the polluter pays principle, the principle to use best available technology, and best environmental practice.
The obligations regarding pollution from offshore installations are further specified in Annex III to the OSPAR Convention. Article 5 of Annex III provides:
“1. No disused offshore installation or disused offshore pipeline shall be dumped and no disused offshore installation shall be left wholly or partly in place in the maritime area without a permit issued by the competent authority of the relevant Contracting Party on a case-by-case basis. The Contracting Parties shall ensure that their authorities, when granting such permits, shall implement the relevant applicable decisions, recommendations and all other agreements adopted under the Convention.
2. No such permit shall be issued if the disused offshore installation or disused offshore pipeline contains substances which result or are likely to result in hazards to human health, harm to living resources and marine ecosystems, damage to amenities or interference with other legitimate uses of the sea.
3. Any Contracting Party which intends to take the decision to issue a permit for the dumping of a disused offshore installation or a disused offshore pipeline placed in the maritime area after 1st January 1998 shall, through the medium of the Commission, inform the other Contracting Parties of its reasons for accepting such dumping, in order to make consultation possible.”
In the wake of the Brent Spar incident, the OSPAR Contracting Parties decided to further develop OSPAR’s legal regime on the dumping of offshore installations. This resulted in the adoption of the legally binding Decision 98/3 on the Disposal of Disused Offshore Installations. The Decision was adopted at the Ministerial Meeting of the OSPAR Commission on 23 July 1998 and entered into force on 9 February 1999. In the Decision, the Contracting Parties recognize that “reuse, recycling or final disposal on land will generally be the preferred option for the decommissioning of offshore installations in the maritime area”. Paragraph 2 of the Decision provides that the “dumping, and the leaving wholly or partly in place, of disused offshore installations within the maritime area is prohibited.” However, the Decision’s paragraph 3 provides for limited but important derogations from that prohibition, leaving the Contracting Parties with a wide discretion on whether to remove old installations or not. If the competent authority of a Contracting Party is satisfied that an assessment of a proposal for the disposal at sea of a disused offshore installation shows that there are significant reasons why an alternative disposal is preferable to reuse or recycling or final disposal on land, it may issue a permit for derogation, inter alia, for
“a. all or part of the footings of a steel installation in a category listed in Annex 1, placed in the maritime area before 9 February 1999, to be left in place;
b. a concrete installation in a category listed in Annex 1 or constituting a concrete anchor base, to be dumped or left wholly or partly in place”
Annex 1 lists several categories of disused offshore installations where derogations may be considered, including steel installations weighing more than ten thousand tonnes in air and gravity-based concrete installations.
The footings of the Brent Alpha steel jacket were erected in 1976 and have a steel jacket platform which weighs around 31,500 tonnes. They come within paragraph 3(a) of Decision 98/3. The CGBS of Brent Bravo, Brent Charlie and Brent Delta weigh approximately 300,000 tonnes each and have either three or four concrete legs which are almost 20 metres in diameter and up to 165m tall. These structures fit the criteria set out in paragraph 3(b) of the Decision. Brent Alpha, Bravo, Charlie and Delta were thus, in principle, eligible for a permit for derogation from the fundamental requirement to fully remove disused platforms. The Federal Government did not call into question the categorisation of these installations as falling under paragraph 3 of Decision 98/3, but disagreed on whether there were “significant reasons” for leaving all or part of the footings or the gravity-based concrete installations in place rather than returning them to shore, and whether the methodology to assess the situation had been applied properly. In addition, it contested the management of the cell content and the legs of the concrete installations.
The current situation concerning the Brent Oil Field proves what one author already predicted in 1999:
“The normative ambiguity and subjective character of the conceptual frameworks created both at regional and international level render the occurrence of further decommissioning causes célèbres inevitable. […] The potential for disagreement among states and non-state actors on the application of the relevant scientific and legal criteria remains undiminished.”
The objections raised by Germany and other Contracting Parties will not prevent the United Kingdom from granting a permit to Shell UK, since the United Kingdom, before making a decision with regard to any permit, only has a duty to “consider both the views and any conclusions recorded in the report of the special consultative meeting, and any views expressed by Contracting Parties in the course of this procedure.” It may do so any time after receiving the report of the special consultative meeting from the chairman of that meeting.
Over the coming years, some 1740 offshore installations in the OSPAR region, mainly oil platforms, are due to be decommissioned as they approach the end of their operational lifetime. At least 17 of these installations contain large amounts of oil residue. The decommissioning of the four oil platforms in the Brent Field will inform the future interpretation and implementation of Decision 98/3. The outcome of the consultation procedure will set an important precedent for the decommissioning of other platforms in the OSPAR region – and beyond.
The position of the Federal Government indicates that it does not see the current regulatory framework as fit for the challenges ahead. It seems to want to seize this opportunity to influence and, possibly, determine the interpretation of the underlying OSPAR provisions and thus create State practice which can be relied upon in future cases. Germany’s proposals to develop a template or guidance for the comparative assessment of decommissioning options under Annex 2 of OSPAR Decision 98/3 and to improve the transparency of the decision-making process with regard to derogation decisions may be part of this strategy to strengthen procedure rather than making any substantive changes to the law.
Category: International environmental law
