LexisNexis

Climate change: Geoengineering solutions prompt debate over global regulation

Elza Holmstedt Pell

The urgent need to limit global warming means geoengineering technologies are likely to be developed and rolled out on a commercial scale, but experts disagree on the need for a global legal framework to regulate them.

Discussions on climate geoengineering mainly cover two key areas: removing carbon dioxide (CO2) from the atmosphere and the management of solar radiation by reflecting inbound sunlight back to space before it heats the earth.

Javier de Cendra, Senior Vice-Chair of the IBA Environment, Health and Safety Law Committee and Dean of IE Law School in Madrid, says the latest Intergovernmental Panel on Climate Change report in 2014 ‘opened the door to geoengineering, especially carbon dioxide removal, as an additional tool’ to address climate change, ‘even if it faces multiple constraints’.

Javier de CendraJavier de Cendra

Climate geoengineering was discussed at March’s UN Environment Assembly in Nairobi. Several countries called for the UN Environment Programme to report on scientific research on geoengineering and its potential applications. But the resolution was blocked by Brazil, Saudi Arabia and the US.

[Geoengineering] in no way reduces our first duty to reduce emissions and adapt to ongoing climate change

Tracy Hester
Professor in environmental law, University of Houston Law Center

Opponents of geoengineering can be found on all sides of the climate debate. Climate and environmental experts are chiefly concerned that a geoengineering industry developing at scale could divert efforts by governments and businesses to reduce emissions.

Tracy Hester is an environmental law professor at University of Houston Law Center and jointly edited Climate Engineering and the Law, which covers the legal and regulatory consequences of nascent climate intervention technologies. He says geoengineering ‘in no way reduces our first duty to reduce emissions and adapt to ongoing climate change’ but instead ‘it can just be added to the suite of things we have’ to help address climate change.

Michael Gerrard, a Columbia Law School professor, who edited Climate Engineering and the Law with Hester, says CO2 removal is essential to meet the Paris targets, ‘but no comprehensive law anywhere is regulating it, and there are very few providing incentives for it.’

CO2 removal could lead to significant legal issues, such as identifying which party takes ownership of CO2 removed from the atmosphere, as well as potential liabilities for leakage. In the near term, it is unlikely that a global treaty or framework for any climate geoengineering solution will emerge. ‘As a result,’ says Hester, ‘we’ll see people start to do research and small-scale deployment under existing laws not written for these technologies, such as the US Clean Air Act. That’s where lawyers are going to be involved – to figure out what sort of laws apply and to what sort of things.’

A global framework to regulate CO2 removal activities is not necessarily needed, says Gerrard, as the potential negative effects would largely be local.

The development of climate engineering technologies is at an early stage. Geoengineering is not, therefore, on the radar of many in the legal community, says Norman Carlin, leader of the Environmental & Natural Resources practice at Pillsbury’s San Francisco office.

This could change in the future, thinks Carlin. He compares the discussions to climate adaptation – efforts to adapt to harm already done by climate change. A decade ago, adaptation solutions were not widely accepted as it was feared they would detract from efforts to reduce emissions.

‘Legal regimes regarding adaptation were just as much in the future then as geoengineering is now,’ says Carlin. ‘Now, the California Coastal Commission is actively engaging in policy regarding sea level rise. And that’s become something lawyers are advising clients on in the state – coastal land usage issues have increasingly become part of our package.’ 

Carlin disagrees with Gerrard’s view that no global framework is needed for CO2 removal. ‘The reality is messier – just because the adverse effects would not necessarily be felt on the same global scale as the benefits doesn’t mean there would not be sufficient magnitude [for the adverse effects] to be transnational in some instances.’

Rob James is co-leader of Pillsbury’s Projects team. ‘We need to keep both domestic and international principles in mind and we’ll need both,’ he says. ‘We’ll need to see a development of regulatory mechanisms on an international level but also an expanded understanding of how cost-benefit analysis is applied in domestic law. I’d suspect this is true in other countries as it is in the US.’

An international legal definition of CO2 removal is needed, says de Cendra, as well as a strong global governance framework and regulations on how to measure and monitor environmental impact to ensure the technology is having positive effects. The potential impact on biodiversity must also be addressed, says de Cendra. 

Solar radiation management (SRM) is widely seen as more controversial and difficult to govern. Its benefits and drawbacks are likely to be global and an international regulatory framework may be necessary. ‘There are some scary scenarios out there – the biggest concern would be some rogue nation,’ says Gerrard, adding that a UN-associated body should preferably control the technology’s deployment.

The Solar Radiation Management Governance Initiative seeks to expand the conversation around the governance of SRM geoengineering research. It says the physical impact of SRM is only one part of the story. In its view, the political dimension could be more difficult to manage.

Uncertainties will remain before geoengineering technology becomes part of the shift towards a zero-carbon world. ‘But we need to look ahead and be prepared for it rather than imagine that this day will never come,’ says Carlin. ‘For deployment on some kind of industrial scale, regulation will be necessary.’