GEOENGINEERING GOVERNANCE: MAKING THE POSSIBLE IMPOSSIBLE? MIT, 30 October 2009 Catherine Redgwell Professor of International Law Faculty of Laws University College London c.redgwell@ucl.ac.uk (Member, 2008/09 UK Royal Society Working Group on Geoengineering the Climate)
Scope of Royal Society Study • Includes all methods which involve deliberate large-scale intervention in the working of the Earth’s natural climate system • Divides methods between direct carbon dioxide removal (CDR) such as ocean fertilization and air capture, and solar radiation management (SRM) eg. space sunshades, cloud brightening, ‘white roofs’, stratospheric particulates (‘aerosols/) • but excluding a) Low carbon energy & methods for reducing emissions of greenhouse gases • i.e. Plan A : see IPCC WG3 and RS Report (2009) b) carbon capture & storage (CCS) at the point of emission, and c) conventional afforestation and avoided deforestation schemes.
• concludes that ‘the safest and most predictable method of moderating climate change is to take early and effective action to reduction emissions of greenhouse gases’. • acknowledges that geoengineering methods - CO2 reduction (CRM) (‘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’). Could do it, but side effects and risks. Reduce uncertainties through further R & D. • Chapter 4 addressed to Governance issues (including law)
• No ‘one size fits all’ solution to governance; nor is it helpful to speak of geoengineering methods en bloc • Key points of distinction, such as time scale (speed of implementation; impact on global temperature), reversibility (including issues of economic and social ‘lock-in’), encapsulation, location of activities and of impacts • Ultimately winners and losers, as for effects of climate change, raising serious governance issues of, inter alia: intra- and inter-generational equity; compensation (eg perturbations of weather systems, impacts on precipitation) and liability issues (including for when the technology is ‘shut off’); capacity building and technology transfer (proprietary interests or freely available?). • Governance before deployment: but no single treaty or institution with a sufficiently broad mandate to address all aspect of geoengineering, particularly bearing in mind diversity of methods and their impacts. Combination of local/national/regional/international regulation (as for climate change itself).
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 • Range of treaty instruments could apply to specific geoengineering 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 (eg air capture), 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). • Overarching question of interaction with FCCC and KP (and post Copenhagen legal framework), particular if CDR methods are to be considered under the flexibility mechanisms
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 and political issues 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.”
Specific Governance Recommendation 6: • Further exploration needed of governance challenges and policy processes established to resolve them • Review of international and regional mechanisms (perhaps commissioned by an international body to: - Consider the role of existing treaties and institutions - Identify any existing mechanisms that could be employed to regulate geoengineering research and deployment activities - Identify where regulatory gaps exist with respect to the geoengineering methods proposed to date - Establish a process for the development of mechanisms to address these gaps . UNFCCC/KP should establish a working group to specify the conditions under which CDR methods would be considered as mechanisms under the Convention; and establish eligibility conditions for CDR methods under the flexibility mechanisms
Rendering the Possible Impossible? • If the option of CDR and/or SRM is to be available, research needs to be carried out (on a precautionary basis) • Not just governance before deployment, but governance of research • Cautionary tale? Ocean iron fertilization
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, as amended by the 1996 Protocol, 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 to be 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
• Until this guidance is available, Contracting Parties are to use ‘the utmost caution and the best available guidance’ in evaluating scientific research proposals to ensure protection of the marine environment consistent with the Convention and Protocol (Resolution LC-LP.1 (2008) paras.4-7). • The ‘best available guidance’ includes previous agreements of the parties, certain annexes of the Convention and Protocols, previous work by the Scientific Groups (including the Working Group on Ocean Fertilization), and existing generic waste assessment guidance. • One criterion might be contribution to scientific knowledge and the likelihood of the activity achieving its stated purpose (though where the purpose is to mitigate climate change, this goes beyond the LC and may involve cooperation with other fora, eg the UNFCCC).
Ocean Fertilization and the 1992 Convention on Biological Diversity (CBD) • The parties to the 1992 CBD debated adopting a moratorium on all ocean fertilization activities (a proposal included in bracketed text in SBTTA Decision XIII/6 and supported, inter alia, by the EU, Norway, Venezuela and the Philippines) but ultimately followed the LC approach (but not its language). • States are 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).
• Given that ‘coastal waters’ is ambiguous, and that small-scale near-shore studies are ineffective for ocean fertilization field trials, the negative impact this step could have on scientific research led to a swift response by the Intergovernmental Oceanographic Commission’s Ad Hoc Consultative Group on Ocean Fertilization drawing attention both to the need for clarification of the language of the COP decision and challenging the scientific assumptions underpinning it. • The CBD debates encapsulate the diverse public perceptions of this geoengineering method, with concerns expressed about potential environmental impact, premature commercialisation of the activity in the face of so many scientific uncertainties, and that it offers a ‘false solution’ to climate change.
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