«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»
Cloud brightening from ships: The Ozone Convention, even though potentially applicable, does not impose practically significant restrictions on cloud brightening from ships. UNCLOS provides the most pertinent rules, but for activities in the EEZ refers to the resolution of conflicts in each individual case. As for the high seas, it is arguable but not clear that cloud brightening would fall under the UNCLOS provisions against marine pollution. The LP does not prohibit cloud brightening as long as sea water vapour is used and does not constitute dumping.
Options and Proposals for the International Governance of Geoengineering Desert reflectors: The mostly local and regional impacts of desert reflectors could contravene international law for the protection of biodiversity, habitats etc. As these potentially applicable rules quite unspecific, an assessment would have to be made in each individual case considering the scale of the desert reflectors, causation and the actual specific legal content of e.g. the Cod’s obligations.
Installations in outer space: International space law was developed without consideration of geoengineering, and does not prohibit it as such. However, certain general obligations and restrictions would generally apply to space-based geoengineering as to other space activities.
These are mostly procedural in nature, such as duties to co-operate and give due regard to the interests of other states in the use of the outer space. In respect of environmental obligations and liability, not all potential side-effects and consequences associated with space-based geoengineering techniques, to the extent that they can be anticipated at this stage, are covered by space law.
Carbon capture and storage: Although it is controversial whether CCS should qualify as geoengineering, a number of risks associated with CCS are similar to other geoengineering concepts and on this basis it is conceivable to assess it in the same context. As to CCS on land, there is no international legal regime that specifically addresses CCS. However, CCS plays a role in the UNFCCC process and has recently been included into the Clean Development Mechanism (CDM) under Kyoto Protocol’s flexible mechanisms. This development is controversial because the general acceptance and incentive for CCS through the CDM does not promote reducing the production of CO2. CCS in the oceans is not explicitly prohibited by UNCLOS, but could fall under rules established for “dumping” activities under sectoral treaties such as LC and LP. Since 2007 sub-seabed storage has been generally allowed under certain conditions under the LP. The same goes for an amendment to the OPSAR Convention of 2007. An LP amendment of 2009, that has not entered into force yet, allows parties under certain conditions o share sub-seabed geological formations for CCS projects. By conclusion e contrario, CO2 storage on the seabed and in the water column is not allowed under the LC and the OSPAR Convention. The same goes for the LC, unless the parties provide interpretative guidance to the contrary.
Ocean liming is not directly addressed under current international law regimes. However, the technique may be subject to provisions governing protection of the marine environment and ocean dumping under UNCLOS, the LC and LP, and the OSPAR Convention. The former would depend largely upon whether the activity is, on the whole, considered either detrimental or beneficial to the marine environment according to the treaty provisions. However, it is not clear whether the activity would qualify as “dumping” and thus fall under the corresponding rules. Other treaties may apply where transboundary impacts or harm to biodiversity incur, or in specially protected areas.
Ocean sequestration of biomass is not directly addressed under current international law.
Generally the same considerations as for ocean liming apply. Apart from cross-cutting general rules, international law does not prohibit the production of biomass materials.
Biomass and biochar: Apart from cross-cutting general rules, international law does not prohibit the production of biomass, of biochar, or the application of biochar on soil as such.
The same goes for the considerable large-scale land use changes that might occur in order to produce and apply the necessary amount of biomass and biochar. Although such land use or land use changes do not seem to be as such prohibited or restricted by international law, they could indirectly conflict with rules requiring to the protection of biodiversity, ecosystems and habitats, rules protecting previous land use, and human rights relating to land-use change.
Whether and to what extent such rules could apply would depend on which biomass and
Options and Proposals for the International Governance of Geoengineering
biochar are produced, to what extent this actually involves land use change, as well as where and how.
Enhanced weathering: 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 legal framework is similar to that applying to biomass and biochar: General rules apply, but the use or land use change relevant for enhanced weathering is not prohibited as such.
However, there could be conflicts with previous or actual land use, and with rules e.g. on the protection of biodiversity, depending on impacts in each case.
Carbon capture from air (‚artificial trees‘): 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, 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 and cross-cutting rules on discussed in other sections. Air capture installations could generally be regarded as carbon sinks and potentially be addressed by the UNFCCC regime.
1.2.2 Conclusions on existing international governance Geoengineering is currently not as such prohibited by international law. The main legal studies so far show an emerging consensus that -details aside- existing international law hardly addresses the potential impacts of geoengineering or related key questions. Most of international law was developed before geoengineering was a significant issue and, as such, does not currently contain explicit references to geoengineering approaches. There is minimal common legal ground regarding general cross-cutting legal rules and principles that apply to all states and all geoengineering concepts. Their content is not specific enough to provide clear guidance as to specific geoengineering techniques. Potential application of specific rules and provisions to geoengineering would inter alia depend on specific actual or potential impacts of the activity, depending on the rule in question. Whether such impacts would actually occur is difficult to assess or predict at this stage. Virtually all treaties examined impose procedural obligations on geoengineering activities falling within their scope of application.
In legal terms, the mandate of many international regimes and institutions would allow them to address geoengineering, or some aspects of it, even if they have not done so to date. This raises questions regarding different treaties or institutions potentially competing for addressing geoengineering with overlapping or inconsistent rules or guidance. Recent developments under the LC/LP and the CBD have produced pertinent rules specifically on geoengineering in general or particular techniques. Most of these rules have been adopted in the form of decisions by treaty bodies and are not binding in the strict legal sense, although there are proposals for binding amendments under the LP. These developments do not mean that the question of whether and how to consider international geoengineering governance is resolved.
1.2.3 European Law and German Law Except for CCS, so far there is no explicit regulation of geoengineering in EU law or in German law. However, existing environmental rules and standards of EU and German law do already apply to geoengineering techniques to some extent. General provisions of EU and German law applicable to each of these techniques include the precautionary principle, the principle of the
Options and Proposals for the International Governance of Geoengineering
protection of the environment, basic individual rights including the right to freedom of research.
The injection of large amounts of sulphate aerosols into the stratosphere above Member States´ territory is permissible as long as it does not substantially contribute to exceeding the national emission ceiling according to Directive 2001/81/EC and the 39th Federal Immission Control Ordinance transposing the Directive into German law. This depends on the amount of SO2 injected into the stratosphere. However, the discharge of substances as sulphate aerosols out of or from aircraft is generally forbidden by section 7 (1) of the Federal Air Traffic Ordinance, but may be allowed for if any danger for human safety or property is excluded.
The rules on CCS are more developed, both technically and legally, than other CDR techniques.
CCS is regulated by the CCS Directive including amendments to other Directives, which as of yet have been transposed to German law only to a small extent.
Air capture installations are not included in the annexes of EU and German legislation governing installations subject to licensing, but are regulated by the rules of the Federal Immission Control Act concerning installations not subject to licensing, especially the obligation to be able to dispose of the produced waste in a proper way. However, this may not be sufficient to adequately cover the pollution risks of the chemicals involved in the process.
Biomass and biochar techniques are regulated to some extent by EU and German legislation on installations as well as legislation concerning the deposition of biomass into or on soils. With the exception of charcoal made of wood which has not been treated chemically, there is no sound legal basis for the use of biochar as fertiliser. Biomass disposal without fertilising effect is generally not permissible according to EU and German Waste laws.
The increase of the pH value of waters as a result of enhanced weathering might interfere with EU and German legislation on waters requiring the preservation or attainment of a good ecological and chemical status of surface waters. Further analysis is also required to assess the conformity of this technique with Federal soil legislation.
1.3 Regulatory options and proposals Academic and political discussion on geoengineering governance should be based on explicit objectives and criteria that any proposed governance arrangements are meant to pursue, balance and fulfil. While there is no shortage of proposals concerning international governance arrangements, the assumptions, rationales and goals to be pursued by them have hardly been made explicit. There is no obvious panacea for the international governance of geoengineering and no obviously superior set of objectives and criteria. We suggest, however, that making the criteria and objectives explicit is necessary in order to facilitate a debate about such goals and rationales, which present an important guideline for designing feasible, effective and appropriate governance arrangements. It is also important to disaggregate the debate into objectives and means of governance that are available for achieving these objectives.
In this study, we first make explicit the objectives and functions that governance of geoengineering is to fulfil. The geoengineering debate for the most part has not addressed this issue. Second, we derive core elements of appropriate governance design from these objectives and criteria. Third, we assess which geoengineering techniques require international governance on the basis of the objectives and criteria. Fourth, we identify governance gaps where the existing international framework does not correspond to our proposed core governance elements. Fifth, we make proposals to fill the governance gaps.
Options and Proposals for the International Governance of Geoengineering We therefore suggest a set of explicit objectives and criteria of international governance