Can't see the carbon for the CO2? Regulating CCU value chains under and beyond climate law

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AbstractTo realise the objectives of the European Green Deal (EGD), fossil carbon will have to be not only reduced but also replaced with recycled carbon. The European Commission considers industrial carbon management and carbon capture and utilisation (CCU) technologies to be part of the solution. A value chain ensues when carbon dioxide (CO2) is captured and utilised as raw material. Examination of the climate, energy and environmental legal landscape of one specific CCU value chain—comprising of waste, waste incineration and plastic raw material—reveals the varied approaches regulation has towards CO2 and carbon. In this article, both carbon cycle legislation and legislation on the carbon source and the material storing carbon are analysed. The legislation being developed directly for CCU for products (other than synthetic fuels) focusses on the carbon cycle and CO2 under the EU emissions trading system (ETS) and a proposed Carbon Removal Certification Framework. Regulatory uncertainty remains for the studied CCU value chain as the capture of CO2 from waste incineration has yet to be incentivised under the EU ETS. Further, the criteria for the permanence of carbon storage in products to qualify under the EU ETS and of the long‐term storage under the Carbon Removal Certification Framework (CRCF) have yet to be developed. For a more complete understanding, we have also analysed waste and product regulations. The conceptual structure of the EU Waste Framework Directive does not seem to support circulating carbon. This context also raises the fundamental question of whether the purpose of waste incineration could be carbon recycling instead of mere energy production. Regarding material storing carbon, plastics, the regulator has been silent as CCU‐originated plastic raw material is not recognised in EU plastics law. These issues must be identified and resolved one by one before the EGD can be secured; revisiting only climate law instruments does not suffice.