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Considering ‘Plan B’: Climate Geoengineering”
Geneva Dialogues, 7 April 2011
Catherine Redgwell Professor of International Law Faculty of Laws University College London email@example.com
What is geoengineering?
• Includes all methods which involve deliberate largescale intervention in the working of the Earth’s natural climate system • E.g. 2009 UK Royal Society Report Geoengineering the Climate: Science, Governance and Uncertainty divides methods between direct carbon dioxide removal (CDR) such as ocean fertilization and air capture, and solar radiation management (SRM) to decrease warming eg. space sunshades, cloud brightening, stratospheric particulates (‘aerosols’).
• RS Report concludes that ‘the safest and most predictable method of moderating climate change is to take early and effective action to reduce emissions of greenhouse gases’ (‘Plan A’). • acknowledges that geongineering methods - CO2 removal (CDR) (‘slow and sure’) and solar radiation methods (SRM) (‘quick and dirty’) – could be useful to support other efforts to mitigate anthropogenic climate change (but geoengineering not a ‘magic bullet’; potential, & complementary, ‘Plan B’). Could do it, but side effects and risks. Reduce uncertainties through further R & D. • Chapter 4 addressed to Governance issues (including law) 3
• These uncertainties echo the 2007 Assessment Report of the IPCC, which identified potential mitigation measures including ‘geoengineering options, such as ocean fertilization to remove CO2 directly from the atmosphere’ whilst also noting that such methods remain ‘largely speculative and unproven, and with the risk of unknown side-effects’ • Geoengineering will be considered across all three working groups of the IPCC in its fifth assessment report (2014) with the (first) Joint IPCC Expert Meeting of Working Groups I, II and III on Geoengineering to be held in June 2011 in Lima.
All options together
The Human Dimension
(Public Attitudes, Legal, Social, & Ethical Issues)
• NOT plotted on this diagram; ‘blobs’ may migrate owing to ethical, social and legal factors • Whether, and under what conditions, any geoengineering methods are actually deployed will be determined as much by social, legal, economic and political factors as by scientific and technical factors • Governance BEFORE deployment: “It would be highly undesirable for geo-engineering methods… to be deployed before appropriate governance mechanisms are in place.”(Royal Society Report). How much before??
Governance of geoengineering
• No ‘one size fits all’ solution; nor is it helpful to speak of geoengineering methods en bloc • Key points of distinction all of which bear on governance, such as: time scale (speed of implementation; impact on global temperature); reversibility (including issues of economic and social ‘lock-in’); encapsulation; location of activities; (extent and nature of) impacts; and who carries them out. • Science-based distinctions (eg CDR, SRM) and Governance-based distinctions according to method and its impacts (local or ‘wholly national’; transboundary; global)
• Ultimately winners and losers, as for effects of climate change, raising serious governance issues of, inter alia: intra- and intergenerational equity; compensation (eg perturbations of weather systems, impacts on precipitation) and liability issues (channelling and limiting for example), capacity building and technology transfer (proprietary interests or freely available?). • No single treaty or institution with a sufficiently broad mandate to address all aspects of geoengineering, particularly bearing in mind this diversity of methods and their impacts. Likely a combination of local/national/regional/international regulation (as for climate change itself). • Generally applicable instruments (eg ENMOD; UNFCCC. CBD); those applicable to particular methods or areas (eg LC/LP; Outer Space Treaty); and customary international law (eg no harm principle)
• The big picture: Who decides whether, and when, to conduct research and/or deploy? The ‘international community’ or those State(s) actually engaged in the activity? If the former, is the climate change regime the appropriate embodiment of ‘the international community’ for the purpose of representative decision-making on whether to engage in geoengineering, even if particular methods are (also) regulated by particular treaty instruments? The detail: To what extent do existing treaty mechanisms apply, or can they be adapted, to address particular geoengineering techniques? Consider: (i) Object and purpose; (ii) the regulated behaviour/substances; (iii) flexibility/methods for adaptation; (iv) institutions; (v) mechanisms for enforcement or compliance and/or liability (vi) participation.
Existing approaches to the question of the extent of international legal regulation of geoengineering
• • • • • •
Catalogue existing treaties by virtue of geographic and substantive scope: Where does the treaty apply? What activities/substances are regulated by it? What substantive standards, if any, apply (benchmarks, threshold of harm, etc)? What institutional and enforcement machinery exists, if any? How widespread is participation? Is it a ‘living instrument’ or a ‘sleeping treaty’? Is there an exit?
Snapshot of potentially applicable international rules and instruments
• Certain generally applicable customary obligations, such as the general obligation on States to regulate actors and activities under their jurisdiction and control so as not to cause transboundary harm to other States, or to areas beyond national jurisdiction; duty to notify and to consult [note frailties of cil – no institutional building or permitting regime for example] Range of treaty instruments could apply to specific geo engineering methods, eg ENMOD, LRTAP, Ozone Convention and Outer Space Treaty for SRM methods depending on their location and effects; UNCLOS, CBD, LC/LP, regional marine pollution instruments for CDR (ocean fertilization in particular). Even for encapsulated activities wholly within the State, without likely transboundary effects there may be additional obligations to conduct EIA, and to refrain from activities on or near, or mitigate impacts on, areas protected under international instruments (world heritage, wetlands etc).
Generally applicable instruments: the 1992 UNFCCC and 1997 KP
• No explicit mention of geoengineering • General obligation to ‘use appropriate methods, e.g. impact assessment… with a view to minimising adverse effects on…the quality of the environment of projects or measures undertaken to mitigate or adapt to climate change’. • Establishes a significant institutional structure for international governance of the climate regime, and the climate change secretariat already cooperates with the other two Rio Conventions (the CBD and UNCCD) on mutually supportive activities, suggesting a possible role for fostering linkages and developing common approaches. • For all carbon capture techniques, question of eligibility for certification under the KP (or a successor arrangement, if any) under the clean development mechanism (CDM) or joint implementation (JI) – though questions of such eligibility are only one element in wider decision-making processes regarding whether the technology should proceed.
1976 Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (ENMOD)
• concerned to establish limits on use of environment as a weapon or an instrumentality of military operations; recognises value of enmod for peaceful purposes and that ‘it could improve the interrelationship of man and nature and contribute to the preservation and improvement of the environment for the benefit of present and future generations’ Applies to ‘any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space’ Fundamentally, however, concerned to prevent military or other hostile uses of enmod techniques, not to regulate their peaceful use eg to combat climate change [note some make argument geoengineering = hostile] Largely a ‘sleeping treaty’ to date; back stop function (prohibition)
International Regulation of SRM
• Regional 1979 LRTAP and (8) Protocols likewise do not directly address geoengineering; only applicable should the substances placed in the atmosphere (eg chemical aerosols) constitute ‘air pollution’ (‘the introduction by man… of substances or energy into the air’) which the Parties pledge to limit and reduce and such substance ‘results in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment’; obligation only to exchange info re discharge of ‘air pollutants which may have adverse effects’ . Would need amendment/new protocol and only regional in scope (ECE treaty)
• 1985 Convention on the Protection of the Ozone Layer and 1987 Montreal Protocol requires States Parties to ‘take appropriate measures in accordance with [its provisions] to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’ and take steps to prevent anthropogenic sources of modification including ‘hydrogen substances’, ‘water’ and various other substances (Annex I, as amended) • Question of applicability will turn, inter alia, on ‘adverse effects’ and scope of Annex I list of regulated substances • Would likely need amendment and remit confined to impact on ozone layer
Problems of treaty interpretation
• (Good) intent or (bad) result? If, say, a substance introduced as a result of geoengineering has or is likely to have an adverse or deleterious effect on [the atmosphere] [the ozone layer] do ‘good intentions’ (geoengineering to avert catastrophic climate change) negate the potential or actual adverse effects on [the atmosphere] [the ozone layer]? • ‘Clash’ of the precautionary principle: avoid research/deployment given potential side effects of geoengineering or promote research/deployment in the face of uncertainties and risks posed by climate change itself?
Ocean Iron Fertilization – 1972 London Convention (LC) and 1996 Protocol (LP)
• the question of control over geoengineering research and experimentation has already arisen • In 2008 the parties to the global 1972 LC (replaced by the 1996 Protocol for States party to both), adopted a resolution agreeing that ocean fertilization is governed by the treaty but that legitimate scientific research is exempted from its definition of dumping
• The assessment framework being developed by the Scientific Groups under the LC/LP will provide the parameters for assessing whether a proposed ocean fertilisation activity is ‘legitimate scientific research’ consistent with the aims of the Convention
Geoengineering and the 1992 Convention on Biological Diversity (CBD)
• • The parties to the 1992 CBD debated adopting a moratorium on all ocean fertilization activities but ultimately followed the LC/LP approach States parties are requested (and other governments ‘urged’) to ensure that ocean fertilization activities do not take place until there is an adequate scientific basis on which to justify such activities and a ‘global transparent and effective control and regulatory mechanism is in place for these activities’. An exception is made for small-scale research studies within ‘coastal waters’ for scientific purposes, without generation or selling of carbon offsets or for any other commercial purposes (Conference of the Parties (COP) 9 Decision IX/16 2008). Matter considered again in 2010: 2010 CBD SBSTTA 14 Report (to CoP) calls on the Parties to ‘[e]nsure, in line and consistent with decision IX/16 C, on ocean fertilization and biodiversity and climate change, and in accordance with the precautionary approach, that no climate-related geo-engineering activities take place until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts’
Nagoya COP 2010 adopted Decision X/33 on biodiversity and climate change which, inter alia: “Invites Parties and other governments, according to national circumstances and priorities…to [e]nsure…in the absence of science based, global, transparent and effective control and regulatory mechanisms for geo-engineering…that no climate-related geoengineering activities…that may affect biodiversity take place, until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies that would be conducted in a controlled setting…and only if they are justified by the need to gather specific scientific data and are subject to a thorough prior assessment of the potential impacts on the environment” Decisions of COP not legally binding; US not a party; and treaty mandate extends (only) to conservation of biodiversity and sustainable use of biological resources 19
FINAL THOUGHTS – AND MORE QUESTIONS
• • Distinction between proscribing entirely certain (or all) geoengineering activities and requiring States to act in a particular way Current state of international law supports the latter, i.e. that no existing treaty provides a blanket prohibition on geoengineering [unless for military/hostile purposes], though the possibility exists; some texts could be adapted to address particular geoengineering methods Governance framework in place BEFORE (IF) deployment (could be local, national for contained technologies; international for large-scale methods) AND, in short term, governance frameworks for research Will need flexibility to respond to changes in scientific knowledge and to unintended consequences of research/deployment Governance framework for research needn’t necessarily be legally binding: Royal Society Report recommended a voluntary research governance framework, eg code of conduct for scientific research into geoengineering techniques, drafted by scientific community through existing organisations (eg WMO, ICSU, IPCC) [Conclusions, Recommendation 7]; bottom-up, ‘user group’ orientation (but issues of trust, transparency, control and enforcement)
If legally binding, some design features:
• Definition of activities to be regulated (threshold) • Total ban, or prohibit unless permitted (subject to conditions), or permitted (subject to conditions) unless prohibited? • Burden of proof: on proposer? • For activity to proceed and/or for liability for any/resulting harm: no harm? Negligible harm? Significant adverse harm? Balancing of harm (eg to environment) against benefit of geoengineering? • Requirement of prior notification? Prior consent? To/by whom? • Prior environmental impact assessment? Strategic environmental assessment? • Monitoring, reporting and verification • Transparency and public participation in decision-making • Liability provisions? Compensation fund? Compliance?
General Principles of Conduct for Research
• Submission to (UK) House of Commons Select Committee on Science and Technology 2010:
Rayner, S., Redgwell C., Savulescu, J., Pidgeon, N. and Kruger, T. (2009) Memorandum on draft principles for the conduct of geoengineering research, (the ‘Oxford Principles’)
(reproduced in House of Commons Science and Technology Committee, The Regulation of Geoengineering, Fifth Report of the Session 2009-10, Report together with formal minutes, oral and written evidence, HC 221, 18 March 2010, available at: www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/221/221.pdf) (US House of Representatives Committee on Science and Technology gave simultaneous consideration to geoengineering reflected in the 2010 Report by Chairman Bart Gordon Engineering the Climate: Research Needs and Strategies for International Coordination available at www.science.house.gov)
PREAMBLE TO THE OXFORD DRAFT PRINCIPLES FOR THE CONDUCT OF GEOENGINEERING RESEARCH
Recognising the fundamental importance of mitigation and adaptation in combating climate change and its adverse effects; Acknowledging nonetheless that if, in the near future, the international community has failed to reduce greenhouse gas emissions and urgent action is needed to prevent catastrophic climate change then it may be necessary to resort to techniques involving deliberate large-scale intervention in the Earth’s climate system (‘geoengineering’); Ensuring that, in the event such resort is necessary, potential geoengineering techniques have been thoroughly investigated to determine, which, if any, techniques will be effective in addressing the issue of climate change without producing unacceptable environmental and socio-economic impacts; Recognising that there are a variety of proposed geoengineering techniques which differ both in what they are trying to achieve (Solar Radiation Management or Carbon Dioxide Removal) and how they are trying to achieve it (engineered solutions or interventions in ecosystems) so that each must be assessed on its own terms, rather than applying a one-size fits all governance approach;
Noting that there is no empirical evidence to suggest researching geoengineering techniques will undermine climate change mitigation efforts; Emphasizing the importance of proceeding cautiously with responsible research so as to assess the potential advantages and disadvantages of proposed geoengineering techniques, recognizing that failure to do so will not reduce the probability that such techniques may be resorted to, but will mean that such resort will take place in the absence of a sufficient evidence base on which to determine which techniques carry the least risk; Stressing that research into geoengineering techniques does not lead inevitably to deployment, and that principles to govern research may need to be adapted to guide decisions regarding deployment, if any; Recognising that the regulation of geoengineering research by existing national, regional and international laws and regulations may be sufficient, but that governance gaps may emerge requiring the creation of new rules and institutions; Propose the following principles to guide research into geoengineering techniques:
• Principle 1: Geoengineering to be regulated as a public good • Principle 2: Public participation in geoengineering decision-making • Principle 3: Disclosure of geoengineering research and open publication of results • Principle 4: Independent assessment of impacts • Principle 5: Governance before deployment
Principle 1: Geoengineering to be regulated [as a][in the] public good.
• While the involvement of the private sector in the delivery of a geoengineering technique should not be prohibited, and may indeed be encouraged to ensure that deployment of a suitable technique can be effected in a timely and efficient manner, regulation of such techniques should be undertaken in the public interest by the appropriate bodies at the state and/or international levels.
Principle 2: Public participation in geoengineering decision-making
• Wherever possible, those conducting geoengineering research should be required to notify, consult, and ideally obtain the prior informed consent of, those affected by the research activities. The identity of affected parties will be dependent on the specific technique which is being researched - for example, a technique which captures carbon dioxide from the air and geologically sequesters it within the territory of a single state will likely require consultation and agreement only at the national or local level, while a technique which involves changing the albedo of the planet by injecting aerosols into the stratosphere will likely require global agreement.
Principle 3: Disclosure of geoengineering research and open publication of results
• There should be complete disclosure of research plans and open publication of results in order to facilitate better understanding of the risks and to reassure the public as to the integrity of the process.
Principle 4: Independent assessment of impacts
• An assessment of the impacts of geoengineering research should be conducted by a body independent of those undertaking the research; where techniques are likely to have transboundary impact, such assessment should be carried out through the appropriate regional and/or international bodies. Assessments should address both the environmental and socio-economic impacts of research, including mitigating the risks of lock-in to particular technologies or vested interests.
Principle 5: Governance before deployment
• Any decisions with respect to deployment should only be taken with robust governance structures already in place, using existing rules and institutions wherever possible.
COMMITTEE EXPOUNDED FURTHER PRINCIPLES:
6. We conclude that the key principles should not include the precautionary principle as a discrete principle 7. Decisions to be based on the best scientific evidence, including social science 8. Regulatory measures to be able to respond rapidly 9. Regulatory measures to be imbued with a high level of flexibility to be able, for example, to encompass new technologies as they emerge; and 10. Prohibition of geoengineering techniques for military purposes
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