{"id":87031,"date":"2026-06-29T14:48:47","date_gmt":"2026-06-29T13:48:47","guid":{"rendered":"https:\/\/www.lse.ac.uk\/granthaminstitute\/?post_type=news&p=87031"},"modified":"2026-06-29T14:48:48","modified_gmt":"2026-06-29T13:48:48","slug":"can-the-european-union-bind-private-actors-to-providing-climate-transition-infrastructure","status":"publish","type":"news","link":"https:\/\/www.lse.ac.uk\/granthaminstitute\/news\/can-the-european-union-bind-private-actors-to-providing-climate-transition-infrastructure\/","title":{"rendered":"Can the European Union bind private actors to providing climate transition infrastructure?"},"content":{"rendered":"\n

Rachel Ardiff and Ingrid Udd Sundvor examine a wave of new litigation brought by oil and gas producers challenging their obligation to provide carbon storage capacity in the EU and explain what the outcomes could mean for legislation governing private actors in the low-carbon transition and for the future of industrial decarbonisation across the bloc.<\/p>\n\n\n\n

Article 23 of the Net Zero Industry Act (NZIA)<\/path><\/svg><\/a> establishes an EU-wide target of 50 million tonnes per annum (mtpa) of carbon dioxide storage capacity to be made available to the European market by 2030. To reach the target, the Act divides the 50 mtpa pro rata between 44 of the largest domestic oil and gas producers, based on their production levels between 2020 and 2023.<\/p>\n\n\n\n

In October 2025, 12 oil and gas producers brought 15 legal actions before the Court of Justice of the European Union (CJEU) challenging the allocation of their share of this carbon storage obligation. The companies collectively account for over 65% of the EU’s  carbon dioxide storage capacity target. While the litigation does not suspend the producers’ obligations, the cases raise important questions that extend beyond this specific Act and could shape future legislation governing private entities in the transition to net zero.<\/p>\n\n\n\n

A new legal frontier<\/strong><\/h2>\n\n\n\n

The Article 23 cases are the first legal test of a carbon storage mandate<\/path><\/svg><\/a>, a regulation that imposes prescribed storage outcomes on specific economic actors. These forms of regulatory mandates have long been advocated for<\/path><\/svg><\/a>, but are now being implemented by the EU for the first time.<\/p>\n\n\n\n

This litigation contrasts with other forms of carbon capture and storage (CCS) litigation to date, which have largely focused on issues of planning law and regulation. In Europe, environmental advocates have challenged CCS project approvals, for example on the Porthos project in the Netherlands<\/path><\/svg><\/a> and the HyNet project in the UK<\/path><\/svg><\/a>, on grounds that insufficient weight has been given to environmental impacts or alternative pathways. In the US, litigation has largely focused on property rights, such as landowners’ concerns over risks associated with geological storage of carbon dioxide or pipelines transporting carbon dioxide running beneath their property (see examples in North Dakota<\/path><\/svg><\/a> and Louisiana<\/path><\/svg><\/a>).<\/p>\n\n\n\n

Where previous CCS litigation tested the boundaries of project approvals, the new Article 23 cases ask whether the EU can impose binding infrastructure obligations directly on private actors, with implications that could extend beyond carbon storage to procurement mandates and mandatory transition plans in the run-up to the bloc’s net zero emissions targets<\/path><\/svg><\/a>. The cases will also ask the Court, for the first time, to weigh  public interest considerations – the wider benefits for society versus private, commercial or individual interests – in the creation of a functional carbon storage market.<\/p>\n\n\n\n

It is notable that the first major wave of CCS litigation in the EU is being brought by oil and gas producers. In 2022, a year before the NZIA was announced, the International Association of Oil and Gas Producers (IOGP) called for a European storage ambition of 500–1,000 mtpa by 2050 and interim targets for 2030, describing carbon dioxide storage as an area of “technical and operational know-how”<\/path><\/svg><\/a> where their members hold a comparative advantage — given the potential to store carbon dioxide in depleted oil and gas fields, their subsurface expertise and the repurposing of hydrocarbon infrastructure. In 2023, the IOGP wrote in direct support of Article 23, describing the obligation as “crucial to unlocking the injection capacity needed to meet the Union’s objectives”<\/path><\/svg><\/a>. That several IOGP member companies have since become litigants reflects a familiar tension in climate policy: the gap between the energy industry’s stated support for net zero targets and its resistance to the obligations that come with these targets in practice.<\/p>\n\n\n\n

Who bears the cost of CCS infrastructure and who benefits from it?<\/strong><\/strong><\/h2>\n\n\n\n

The selection of oil and gas companies included in the Act was not arbitrary, nor is the obligation designed to be punitive. The EU is projected to require at least 250 mtpa of permanently stored carbon dioxide by 2050<\/path><\/svg><\/a> to achieve climate neutrality and decarbonise heavy industrial sectors which produce so-called ‘hard-to-abate’ emissions. Heavy industry accounted for approximately 20% of the EU’s emissions in 2023<\/path><\/svg><\/a>, and sectors such as cement, lime and chemicals face process emissions that cannot be fully eliminated through fuel switching alone. It is estimated that CCS will need to account for up to 70% of the residual emissions reductions of these industries.<\/path><\/svg><\/a><\/p>\n\n\n\n

However, since the addition of geological storage in the EU Emissions Trading System (ETS) in 2009,<\/path><\/svg><\/a> the EU has not seen the development of any large-scale storage projects. This is in part because of the so-called ‘CCS paradox’: emitters will not invest in carbon capture technology without having the confidence that storage will be available, while storage developers will not invest in storage infrastructure without being certain of demand. So far, price signals from the ETS have been insufficient to solve the paradox, compounded by concentration of storage development in wealthier North Sea nations<\/path><\/svg><\/a>, leaving emitters across Southern and Eastern Europe with no credible near-term decarbonisation pathway.<\/p>\n\n\n\n

Article 23 was designed to break this deadlock by kickstarting a carbon storage market in the EU. Large oil and gas companies possess the subsurface expertise, geological data, existing infrastructure and financial capacity most directly relevant to carbon dioxide storage development. Under the Act, entities ranging from carbon majors such as Shell and ExxonMobil to state-owned producers such as Romania’s Romgaz and Poland’s Orlen Petrobaltic may comply individually, through joint development or by contracting third-party storage developers, and the storage can be developed anywhere within the EU.<\/p>\n\n\n\n

In court, companies are now arguing that the targets are excessive and not sensitive enough to differences in geological potential and regulatory maturity across EU member states, invoking the Charter of Fundamental Rights<\/path><\/svg><\/a> on the freedom to conduct a business. Some litigants contend that the 2030 compliance deadline will be impossible to reach and represents a disproportionate ask by the European Commission; others question why coal producers do not face equivalent obligations.<\/p>\n\n\n\n

Yet, several of the companies bringing the litigation<\/path><\/svg><\/a> have also explicitly identified CCS as a core decarbonisation tool in their published net zero strategies. That the same companies are contesting the EU’s first mandatory CCS instrument underscores that voluntary commitments and enforceable obligations occupy fundamentally different political and legal terrain. It also raises fundamental questions about which companies will have to rely on carbon dioxide capture and removal to meet their climate goals and who should bear the costs associated with it. The outcomes of these cases will be crucial to clarify the public interest rationale for maintaining a functional carbon storage market in the EU.<\/p>\n\n\n\n

Who is best placed to develop storage injection capacity at scale and at pace?<\/strong><\/h2>\n\n\n\n

The NZIA passed through the EU’s legislative trilogue (the European Commission, the Council of the European Union and the European Parliament) comparatively quickly, in response to international developments that bolster net zero technology, including the passing of the Inflation Reduction Act<\/path><\/svg><\/a> in the US in 2022. In addition to the arguments discussed above, litigants are also challenging the speed and opacity with which the measures were adopted.<\/p>\n\n\n\n

This includes challenging the transparency of the target-setting methodology, the choice of 2020–23 as the production reference period (coinciding with the COVID-19 pandemic and the European energy crisis, which litigants argue result in artificially inflating many of their production numbers) and the absence of a formal impact assessment (despite the CJEU previously holding that this is not legally mandatory<\/path><\/svg><\/a> in the EU).<\/p>\n\n\n\n

The litigants also argue that the Commission exceeded its powers and that its mandate to improve the functioning of the internal market does not provide a sufficient basis for imposing infrastructure obligations directly on private actors. However, as highlighted by Carbon Balance Initiative and Bellona Europa<\/path><\/svg><\/a> in an amicus curiae brief (additional information filed to the court), Article 23 falls squarely within the EU’s internal market competence. The Commission has specified that to comply companies need only secure permits and contracts for storage<\/path><\/svg><\/a>, rather than meet full operational injection capacity by 2030 which makes the timeline far more achievable<\/path><\/svg><\/a>.<\/p>\n\n\n\n

The comparison with coal producers is also weak. The relevant question is not which sectors produce fossil fuels, but which operators are best placed to develop storage injection capacity at scale and at pace. Oil and gas producers were chosen specifically because of their relative expertise in subsurface development and ownership of relevant infrastructure. The litigants will have to satisfy the high threshold of proving that the Act is ‘manifestly inappropriate’ to reach its goals.<\/p>\n\n\n\n

An area of litigation to watch<\/strong><\/h2>\n\n\n\n

The emergence of this type of CCS litigation reflects a broader counter-mobilisation against the expansion of direct obligations in EU climate policy. Whatever the Court decides is likely to have implications beyond this dispute, potentially shaping future legislation governing private entities in the transition to net zero.<\/p>\n\n\n\n

At the same time, it is clear that carbon storage capacity is needed across the EU. If the Court upholds the Commission’s carbon storage obligation, it would provide much-needed regulatory certainty for CCS and send a strong signal to investors, boosting confidence in a critical net zero technology that has so far struggled to scale up across Europe. Without sufficient storage capacity, many key European industries, such as cement, lime and parts of the chemical industry, could miss their decarbonisation goals.<\/p>\n\n\n\n

The Court is ultimately being asked to balance the financial investments these firms are compelled to make with the public interest of making carbon storage capacity available to the European market by 2030. The question of who should bear the cost for CCS must be answered sooner or later.<\/p>\n\n\n\n

\n\n\n\n

Rachel Ardiff is a Policy Advisor (UK & EU) at Carbon Balance Initiative<\/path><\/svg><\/a> and a Research Associate at Oxford Net Zero.
Ingrid Udd Sundvor is Executive Director at Carbon Balance Initiative<\/path><\/svg><\/a> and a Research Associate at Oxford Net Zero.<\/em><\/p>\n\n\n\n

The views in this commentary are those of the authors and do not necessarily represent those of the Grantham Research Institute.<\/em><\/p>\n\n\n\n

About this commentary series<\/strong><\/h2>\n\n\n\n

This commentary is part of a series<\/strong><\/a> coordinated by the Grantham Research Institute’s climate law and governance team<\/strong><\/a> exploring corporate climate litigation and the boundaries and interactions between science, the law and policy. The series contains contributions from legal scholars, economists and other social scientists, reviewed by practising lawyers. It is co-hosted with the Global School of Sustainability<\/strong><\/a> at LSE.<\/p>\n\n\n\n

Read other commentaries in the series<\/strong><\/a>.<\/strong><\/p>\n\n","protected":false},"excerpt":{"rendered":"\n

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