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«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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See http://www.fao.org/news/story/en/item/128907/icode/. The final draft text of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests, is available at http://www.fao.org/fileadmin/user_upload/nr/land_tenure/pdf/VG_en_Final_March_2012.pdf in the Context of National Food Security Options and Proposals for the International Governance of Geoengineering However, there is international law requiring the protection of biodiversity, ecosystems and habitats, which indirectly provide rules regarding areas that could be affected by large-scale land use changes that would be part of certain geoengineering techniques. The CBD has provided guidance on geoengineering in general in decision X/33 (see above section 5.1.2), which would apply to biomass and biochar techniques where they qualify as geoengineering.

There are other biodiversity-related conventions such as the Ramsar Convention, the Convention on Migratory Species (CMS) regarding the habitat of migratory species and the World Heritage Convention regarding specific areas defined as cultural or natural heritage.

Whether and to what extent such area or ecosystem-related rules could apply would depend on which biomass and biochar are produced, to what extent this actually involves land use change, as well as where and how.

Under the climate regime, land use and land use change are important issues in the calculation of and accounting for sinks. Parties to the UNFCCC and KP have to periodically prepare and report annual greenhouse gas (GHG) inventories including the land use, land use change and forestry (LULUCF) sector in accordance with Article 4(1)(a) UNFCCC and Articles 3(3,) 3(4), 3(7) and 4 KP. 377 Decisions by the KP parties define certain forms specifically for this purpose. These rules provide an incentive for states to generate sinks, even for parties to the UNFCCC without quantified reduction obligations under the KP. While this does not amount to permitting or actively promoting geoengineering through biomass and biochar, it is conceivable to imagine moves towards crediting certain types of LULUCF under the KP’s flexible mechanisms or in future new market-based mechanisms. 378 However, so far only carbon capture and storage in geological formations has been considered for inclusion in the KP’s Clean Development Mechanism. 379 In addition, the REDD+ mechanism, although not an obligation, provides an incentive to capture more carbon in vegetation. It could in the future develop into a mechanism involving financial incentives (so-called phase 3) and drive a switch to “land-based” accounting, where all emissions from land will have to be accounted for.

Land use changes could also create conflicts with other forms of land-use, such as food production. Large-scale land-use change could also potentially be in conflict with human rights.

In particular, the right to food under Article 11 ICSECR could be affected if land previously used for food production was converted to produce biomass that is not edible. Again, this would depend on the specific way in which the land use change would be carried out as well as the content of the right in question. Forced or inadvertent displacement or migration are also imaginable. Any violation of social, economic and cultural rights related to food, housing and water would have to be assessed considering specific cases and circumstances.

The rules identified above that geoengineering by biomass and biochar could conflict with the

following categories:

• Rules requiring to the protection of biodiversity, ecosystems and habitats

• Rules protecting previous land use against land use change For an introductory overview of LULUCF rules in the climate regime summary see http://unfccc.int/methods_and_science/lulucf.

Virgoe (2009); Bertram (2009).

See above section 5.1.7 on CCS.

Options and Proposals for the International Governance of Geoengineering

• Human rights relating to land-use change, in particular food production.

5.1.11 Enhanced weathering Enhanced weathering is a technique that accelerates the slow natural reaction of silicate rocks with CO2 (to form solid carbonate and silicate minerals) by spreading finely-ground silicate minerals such as olivine over agricultural soils. 380 Similar to geoengineering by biomass and biochar production and storage, enhanced weathering in the form of spreading base minerals mainly has land-use change impacts. And similar to ocean liming, this technique would require a considerable amount of mining in order to procure the minerals, plus transporting the minerals to the soil. The potential direct impacts on land include effects on soil structure and fertility and increased soil albedo, while potential indirect impacts include those resulting from the required mining and transport and the associated energy use and water implications. In addition, the scale required in order to be effective could potentially also result in impacts on rivers, coastal seas and the open ocean. 381

The legal framework is similar to that applying to biomass and biochar (see section 5.1.10):

General rules apply, but in absence of specific international law on land use or land use change relevant for enhanced weathering, the rules on the protection of biodiversity, ecosystems and habitats indirectly provide rules regarding areas that could be affected by large-scale land use that would be part of this geoengineering technique.





5.1.12 Carbon capture from air (‚artificial trees‘)

Geoengineering by air capture comprises a range of industrial processes aimed at extracting CO2 directly from ambient air. Techniques discussed include the absorption of CO2 onto solids or absorption into liquids such as highly alkaline solutions or moderately alkaline solutions with a catalyst. 382 The term “artificial trees” reflects the technical rather than biological nature of this technique. Artificial trees always require CO2 storage as a second step. The analysis of the rules for CCS therefore have to be taken into consideration as well (see section on CCS).

The air capture concept is relatively far advanced and well understood. According to the US GAO, it is the CDR technology with the highest so-called ‘technology readiness level.’ 383 There have been demonstration projects using prototypes, patents have been issued and small projects are operating. 384 However, the GOA also concluded that the deployment of direct air capture is “decades away from large-scale commercialization”. 385 Its implementation is not thermodynamically efficient and would require enormous amounts of energy, which means Williamson et al (2012) 62.

Williamson et al (2012) 63.

Williamson et al (2012) 68; Royal Society (2009) 16.

GOA (2011) vi.

For example to the US company Climate Engineering (http://www.carbonengineering.com/), cf. NRP (2011).

GOA (2011) vi.

Options and Proposals for the International Governance of Geoengineering high costs and - if produced from fossil fuels - will significantly increase the climate footprint of the measure and undermine its actual objectives. 386 The impact and undesirable consequences on the environment in general and on the environment of other states is arguably very low, given that no hazardous techniques are involved. 387 It has also been argued that the land-use footprint of putting up the air capture installations would be considerably lower compared to other geoengineering techniques.

However, there could be some risks of pollution from producing and handling the required chemicals. 388 Given the expected local implementation and low impacts, there appear to be no requirements in international law of specific interest for geoengineering by artificial trees. However, national and EU law provide rules such as planning, construction, water and nature conservation law which would govern an installation for carbon capture and, for instance, determine whether it would need a permit. However, international law could become relevant when a carbon capture, e.g. in cumulative deployment, has potential transboundary impacts. The applicable rules would presumably be the general rules on discussed in other sections, such as the duty to prevent environmental harm and the duty to carry out an environmental impact assessment.

Air capture installations could generally be regarded as carbon sinks, as they remove CO2 from the atmosphere. Therefore, they could potentially be addressed by the UNFCCC regime and process. However, the Kyoto Protocol limits the acceptance of sinks to land-use and forestry projects (Article 3 paragraph 3 Kyoto Protocol). Although CCS has recently been included in the CDM, there is currently no indication of similar development regarding artificial trees.

5.2 European Law and German Law

5.2.1 Introduction While some geoengineering techniques are conceived to be applied outside the jurisdiction of individual states (space, high seas), other ones have potentially far-reaching effects that can hardly be limited to the territory of the state enacting them. Thus, it is not surprising that regulation of geoengineering is been primarily discussed as a matter of public international law.

However, geoengineering techniques, in particular if they are intended to be applied on the territory of a state 389, may also require regulation at the national level. In the case of Member States of the European Union regulation at EU level might be required, for instance under the EU competence for the environment (Article 192 TFEU). Such regulation may be enacted in order to implement international treaties on geoengineering, or in addition to or in absence of international obligations. The rules could also be made to apply to geoengineering activities of nationals outside the territory.

Royal Society (2009) 15.

GOA (2011) 23, Royal Society (2009) 16.

Williamson et al (2012) 68.

However, national legislation may also concern areas outside the State territory, such as legislation relating to the Exclusive Economic Zone of the State or to nationals operating on the High Seas. See e.g. Article 2 of the Federal High Seas Dumping Act.

Options and Proposals for the International Governance of Geoengineering At present there is no explicit regulation of geoengineering in EU law or in German law. The only exception is CCS, depending whether or not it is included in the definition of geoengineering. 390 Nevertheless, existing environmental rules and standards of EU and German law could apply to geoengineering techniques at least to some extent. This section provides a legal analysis of the geoengineering techniques most likely to be governed by existing or forthcoming EU and German law: CCS, sulfate aerosols, air capture, biomass/biochar and weathering. Space installations are not covered, as well as marine techniques (ocean liming, dumping of crops or weathering material into the seas), as the latter are more likely to performed at the high seas rather than within the coastal waters or the Exclusive Economic Zone of states. For the same reason, cloud brightening will also not be analysed in this section, as it is relevant primarily to marine areas. 391 Finally, desert installations are primarily a matter concerning the state using these techniques on its territory and are therefore of less interest to the EU and its Member States, which do not have deserts.

5.2.2 Cross-cutting general rules Before starting with the analysis of the different geoengineering techniques, some general provisions of EU and German law shall be mentioned which apply equally to each of these techniques and are important for the general approach towards them.

The first of these general provisions is the precautionary principle. It should be noted that the precautionary principle is part of EU law and as such does not necessarily have the same legal content and implications as the precautionary approach in international law.



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