CO₂ Pipelines under the New KSpTG: Operator Obligations, Liability and Regulatory Outlook
The amended KSpTG (Carbon Dioxide Storage and Transport Act) of 28 November 2025 is intended to enable the development of a carbon dioxide infrastructure in Germany. While actual storage in Germany is currently not foreseeable owing to the lack of designated storage sites and political reservations on the part of the federal states, pipeline-based transport – in particular to storage sites abroad – is moving into focus. The amendment raises several regulatory issues that are of considerable practical significance. The detailed analysis can be found in the long version at the end of this text.
a. Distinction between pipeline and network and differing catalogue of obligations
The KSpTG now distinguishes between carbon dioxide pipelines (Section 3 No. 6 KSpTG) and carbon dioxide pipeline networks (Section 3 No. 6a KSpTG). While network operators are subject to extensive obligations – in particular the non-discriminatory granting of connection and access (Section 33 KSpTG) – operators of "mere" pipelines are not subject to these obligations. A network exists only if its dimensioning is not designed from the outset for specific customers. It appears likely that this distinction, which depends on the intention of the pipeline operators, will be adjusted once the ramp-up of the carbon dioxide infrastructure has succeeded.
b. Liability regime under Section 29 KSpTG
The strict (no-fault) liability under Section 29 KSpTG goes beyond the Environmental Liability Act (UmweltHG): there is no exclusion of liability for force majeure, nor can the presumption of causation be rebutted merely by proving that the installation was operated as intended. A key question is who is liable where owner, operator and permit holder are different persons. Since Section 29(1) KSpTG refers not to any operator but specifically to the responsible operator, liability falls on the person actually in charge of operation, but not on the owner etc. who has no direct actual ability to influence the pipeline.
c. Obligation to surrender allowances in the event of leakage
Carbon dioxide pipelines may fall within the scope of the Greenhouse Gas Emissions Trading Act (TEHG) if they serve transport for geological storage (Annex 1, Part A, Section 2 No. 31 TEHG). In the event of leakage – as with other emissions – the obligation to surrender allowances lies with the pipeline operator. If, by contrast, the pipeline does not fall within the scope of the TEHG, the considerations regarding direct causation should be transferable, so that the surrender obligation also lies with the pipeline operator in that case. The contractual allocation of risk between installation operators and pipeline or network operators therefore takes on considerable practical significance.
d. Expected regulatory developments
The current low density of regulation has been deliberately chosen so as not to hinder the development of infrastructure. The hydrogen network went through a comparable development: from voluntary opt-in regulation (Sections 28j et seq. EnWG, former version) to mandatory core network regulation (Section 28q EnWG). As the network expands, a gradual tightening of regulation is to be expected – in particular network tariff regulation and unbundling rules. Unlike electricity and gas networks, CO₂ transport lacks the character of a public service of general interest. However, the state's duty to protect the climate and the natural monopoly position of network operators are likely to justify an alignment with the regulatory system of the energy
Further details and the legal assessment can be found in the long version.
This article was created in collaboration with our research associate Alexandra Scheunert.
