Once a Fringe Idea, Geoengineering Moves to Center Stage in Policy Arena
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THE DEBATE
i n p r i n t
Once a Fringe Idea, Geoengineering
Moves to Center Stage in Policy Arena
C
limate geoengineering was once the Burns concluded with an overview of the inter-
province only of a few radical scientists national institutions that might be applicable
gaming worst-case scenarios. Today, it is to governing carbon dioxide removal.
a dynamic and rapidly emerging suite of poten- Limiting the global average temperature
tial responses to climate change. Just a de- increase to below 2 degrees, as envisioned in
cade ago considered as on the outer fringes, the Paris Agreement, is already unlikely without
deliberate interference in the atmosphere has deploying large-scale technologies that reduce
become a credible option as a consequence solar insolation or remove greenhouse gases
of increasing evidence of the catastrophic im- from the atmosphere. However, real-world re-
plications of a warmer world and the failure of search, let alone deployment at scale, remains
the global community to pursue sufficiently ag- deeply controversial, especially given the lack
gressive efforts to reduce emissions. of international oversight of these relatively low-
ELI convened a webinar bringing together cost technologies that nonetheless have trans-
three experts who collectively believe that it is boundary implications affecting all of humanity.
time to consider at least two forms of geoengi- Can policymakers addressing climate
neering, solar radiation management and car- change today rely upon the technologies of to-
bon dioxide removal. Shuchi Talati started with morrow? Which methods seem promising and
an overview of the two major genres and some which upon inspection are not? What are the
of the research and implementation consid- legal frameworks governing research into geo-
erations. Robert James focused on potential engineering — and what is the best policy to
domestic legal governance structures, with an manage global deployment? The edited tran-
emphasis on solar radiation management. Wil script that follows provides some answers.
52 | T H E E N V I R O N M E N T A L F O R U M Reprinted by permission from The Environmental Forum®, May/June 2020.
Copyright © 2020, Environmental Law Institute®, Washington, D.C. www.eli.org.T HE DEB AT E
Strong Measures themselves would consume a lot of
energy.
trend after we hit net-zero emissions.
Solar geoengineering can be a method
Have Become The landscape for CDR has
changed rapidly over the last two
of peak shaving to limit harmful cli-
mate impacts until carbon removal is
a Necessity years. It is beginning to form rare at a large enough scale. Solar geoengi-
coalitions that have some Republican neering is absolutely not a substitute
By Shuchi Talati support, and both Occidental and for mitigation or adaptation but could
Chevron have recently made invest- be used to potentially limit harm.
W
hen considering the word ments in some CDR technologies. There are two main solar geoengi-
geoengineering, the termi- Environmental NGOs are also paying neering methods that are discussed in
nology is moving away more attention to carbon removal literature: stratospheric aerosol injec-
from using it as an umbrella term as a necessary tool. Some NGOs are tion and marine cloud brightening.
for both carbon dioxide removal, or skeptical about fossil fuel involvement, SAI would inject aerosols into the
CDR, and solar radiation manage- particularly in enhanced oil recovery, stratosphere that would then reflect
ment (also referred to as solar geoen- leading many NGOs to focus on sunlight to cool the planet. Marine
gineering). The two sets of approaches nature-based approaches. cloud brightening would spray aerosol
have always been technically different, An example of this rapid change is salts into clouds above the oceans to
and are now evolving differently in in Section 45Q of the U.S. Tax Code: brighten them and provide regional-
terms of perception and policy. a performance-based tax credit that ized cooling.
CDR takes carbon out of the at- encourages companies to permanently According to the IPCC special
mosphere and either uses it or stores store or utilize captured carbon, with report on the 1.5 degree goal, SAI is
it in plants, soils, or geological forma- varying credits per ton. It has been the most researched method, with
tions. The captured carbon can be in existence for some time but was high agreement that it could limit
used for fuels, building materials, or revamped in 2018 by a bipartisan co- warming below 1.5 degrees. However,
for enhanced oil recovery. Enhanced alition in Congress and now includes there are still uncertain impacts on
oil recovery is a controversial practice direct air capture as a method that can global and regional weather patterns.
that is already taking place that uses receive these credits. This was the first It doesn’t address all the impacts of
the captured carbon to extract petro- time CDR was included in federal law. climate change, such as ocean acidi-
leum. Significantly, the fiscal year 2020 fication, and it doesn’t address rising
There is an incredible diversity spending package also saw increased emissions. And if solar geoengineering
of CDR approaches that are often funding for CDR technologies at the is deployed without CDR and then
categorized as nature-based or tech- departments of Energy, Agriculture, stopped, the world would experience
nological. But within those categories, and Defense. abrupt changes, known as termination
there are differences in approaches All pathways that limit global shock. There are also major geopoliti-
that have varying potentials for per- warming to 1.5 degrees with limited cal and governance concerns.
manence, implementation, and cost. overshoot would need CDR on the As solar geoengineering research
Nature-based approaches generally are order of 100 to 1,000 gigatons of CO2 is in nascent stages, governance over
lower in cost and better understood over the 21st century. To put that in that research is a major issue. Research
technologically, but they are also more perspective, 10 gigatons is almost dou- governance considers the question of
reversible in terms of how long the ble current U.S. emissions. So while should solar geoengineering experi-
carbon can potentially be stored. carbon removal is necessary, in all like- ments proceed and, if so, under what
For example, afforestation is an lihood it might not be sufficient in the conditions. These conditions would
important tool with many co-benefits timeframe that we need it to be. likely include measures to provide
in addition to carbon storage, but Which brings me to solar geoen- oversight, transparency, and public
the carbon removal would not be gineering. It is important to reiterate engagement. Harvard University has
permanent due to events like logging that no one wants to use this technol- proposed the first SAI small-scale out-
or forest fires. It would additionally ogy, rather we are being forced to con- door experiment known as SCoPEx
necessitate massive land-use change to sider it because we are not aggressively (the Stratospheric Controlled Pertur-
offer large-scale removal. A technology reducing emissions and scaling CDR. bation Experiment). The university
that has been getting more attention One potential method of deploying agreed to form an independent advi-
is direct air capture, a method that solar geoengineering is known as peak sory committee to provide governance
removes carbon from the ambient air shaving. In such a scenario, mitigation over the experiment, charged with
and then uses it or stores it under- can help prevent future climate im- advising on a range of topics including
ground. But costs are still very high, pacts, and increasing the use of carbon scientific review, environmental and
research is nascent, and the facilities removal can help to slowly reverse that social risks, and stakeholder engage-
54 | T H E E N V I R O N M E N T A L F O R U M Reprinted by permission from The Environmental Forum®, May/June 2020.
Copyright © 2020, Environmental Law Institute®, Washington, D.C. www.eli.org.T HE DEB AT E
ment. The outcome of the committee New Orleans but jeopardize Galveston there is recidivism risk, especially
could potentially serve as a model for or Mobile instead. down the road if solar geoengineering
future outdoor experiments and can When we talk about geoengineer- is launched and later discontinued.
inform future governance processes ing, whether by solar radiation man- NEPA requires comparison of the
as well. Another important research agement or carbon dioxide removal, it proposed project against alternatives.
governance effort is the forthcoming seems we are expecting a bit of magic In the context of research, the key
National Academy of Sciences study to occur. But when I read those who is that we should weigh the conse-
on solar geoengineering research pri- instead favor drastic emissions reduc- quences of investigation today against
orities and governance. It will provide tions, I think getting 190 countries to the potential large-scale benefits of full
recommendations on if and how dif- agree to reduce industrial and trans- deployment tomorrow.
ferent domains of solar geoengineering portation sources immediately and for In over half the states, there are
research should move forward. centuries is also engaging in a bit of NEPA analogues where the states
The Union of Concerned Scientists magical thinking. make their own reviews of proposed
believes that solar geoengineering mer- For me, whether to use geoen- projects approved by local agencies. In
its careful study. However, we oppose gineering is really a debate about California, for example, the agency is
deployment and large-scale experi- whether it can mitigate climate change to select the alternative that best miti-
ments for the foreseeable future due impacts. To answer that question, we gates the environmental impact.
to the substantial risks and uncertain- need investigations on efficacy and In addition to these planning laws,
ties they pose. We support modeling potential downsides. there are laws governing the actual
and observing natural events, and we Of the challenges to research, I release of materials. In Climate Engi-
suggest that small-scale experiments think the first one in the lawyer’s view neering and the Law, Michael Gerrard
should only go forward with le- is the set of planning statutes at the and Tracy Hester explain how the
gitimate governance mechanisms and federal and state levels. The National Clean Air Act could apply to sulfate
funding sources as well as meaning- Environmental Policy Act applies to aerosols deployed in solar radiation
ful stakeholder engagement. The full federal actions for geoengineering management. (Ironically, we have
UCS position on solar geoengineering experiments. Some projects may be spent the last 50 years limiting the
can be found on our website. developed in order to generate emis- release of these compounds.) Several
sions credits, and those credits may be other statutes govern releases into the
applied to projects that themselves will atmosphere, oceans, and local waters.
Navigating Legal trigger application of NEPA.
A threshold inquiry is whether the
In international waters, the London
Dumping Convention and a U.S.
Challenges to federal agency can make an abbreviat- law were invoked in a geoengineering
ed environmental assessment or must project by an entity named Planktos
Geoengineering produce a more complete draft and challenged by EPA over a decade ago.
final environmental impact statement. Moving from the regulations, I
By Robert James For the National Science Foundation, refer to the full array of tort laws in
there are some general EIS exemptions the United States. A trespass involves
I
t is common that a lawyer, consid- for research and technical studies. But actual invasion of a property interest,
ering a subject like geoengineering, there is an exclusion for extraordinary a private nuisance entails interfering
will move quickly past whether it circumstances, which can include with the right of use of private prop-
will work and focus instead on wheth- weather modification. We are mind- erty, and a public nuisance deals with
er it is legal. ful of a D.C. Circuit decision where interfering with the public interest.
We lawyers do have precedent the judges said it is best to review For these and other tort claims, a key
near to this subject. Before climate technologies at the R&D stage, before point in defending research will be
modification, there was weather modi- implementation. So there are signifi- arguing that there are benefits as well
fication. During the Dust Bowl era, cant NEPA hurdles even for research as costs. Those benefits are real and
there were cases about seeding clouds. projects. should be weighed in deciding wheth-
Questions arose as to whether it would In either type of assessment, policy- er a given research activity offends
work, what happened when there was makers will look at the harms that can one of these causes of action — laws
residue from the seeding, and what occur from deployment of a geoengi- that really were intended for full-scale
happened if the rain fell but not where neering technique. Those harms can implementation.
it was intended. Issues also arose with include disturbances from the tech- Property and contract law prin-
the possibility of hurricane diversion, nique itself. They can include the car- ciples will also be relevant to research.
where the moral question is whether bon footprint of the vessels or planes From an intellectual property stand-
you should intervene to try to save used to conduct the experiment. And point, if you develop an invention
Reprinted by permission from The Environmental Forum®, May/June 2020. M A Y / J U N E 2 0 2 0 | 55
Copyright © 2020, Environmental Law Institute®, Washington, D.C. www.eli.org.T HE DEB AT E
from the investigation, will you make world there is no way of compartmen- Dumping Convention, and its associ-
it freely available or license it on non- talizing the messages that you deliver. ated protocol, and the Convention
discriminatory terms, or will you hold And you should know that diversity on Biological Diversity. The impetus
it for commercial exploitation? The and inclusion, in your staffing, your for both of these regimes was the
answer to that question will color how advisors, and your community out- small-scale fertilization experiments
others view your program. reach, are now gating conditions for that were being conducted by private
International conventions may be any project. parties and academic institutions that
brought to bear on domestic research. My exhortation is that research is seeded small patches in the ocean with
The parties to the Convention for research — it is not the same as some- iron to induce phytoplankton produc-
Biological Diversity issued a caution- thing else. We should not apply to tion to take up carbon and sequester
ary note on geoengineering, much like research the environmental, tort, and substantial amounts on the bottom of
the Union of Concerned Scientists’ property legal rules that apply to full the ocean.
position, but they made an exception implementation. The parties to the London Dump-
for “small scale research in a controlled Any research project will be too ing Convention passed a resolution in
setting.” Similarly, the London Dump- limited to save the planet, but it might 2008 classifying ocean iron fertiliza-
ing Convention, on dispersal of ma- nevertheless lead to later success. If tion experiments as an activity other
terials in the ocean, has an exception you were simply weighing the cost and than dumping. However, at the same
for “legitimate scientific research.” This benefits, the short-term costs might time it placed serious restrictions on
is the language of diplomats rather outweigh the short-term benefits and those activities, limiting them to le-
than lawyers. It is not clear how those offend some of the regulatory and gitimate small-scale scientific research.
clauses will be interpreted and by common-law rules. We cannot let that Ultimately, in 2010 the parties did
whom. But each affords a reservation happen. We need to have research develop an environmental assessment
for needed research, and an indication proceed. Then we can tailor the tech- framework that could conceivably be
that research should be treated differ- niques, reject some methods, and let used for other kinds of geoengineering
ently than implementation. others proceed. That is the only way experiments.
Observers expect the United Na- we can make informed judgments As resolutions, these measures are
tions bodies to step in. There was an whether we have a technique that will not legally binding on the parties.
attempt to address solar geoengineer- work at the magnitude and for the However, the 47 parties to the proto-
ing in 2019. That did not transpire time periods needed to address climate col subsequently adopted an amend-
due to objections from a handful of change. ment establishing legally binding
countries. It is part of the agenda for regulation of ocean geoengineering in
the next assessment report, though, a number of different ways.
and it is expected that solar geoengi-
neering will get its day in court there.
International First, the amendment would ex-
pand the potential purview of what
I conclude with a recommendation Institutions could be regulated beyond ocean iron
and an exhortation. My recommenda- fertilization to all “marine geoengi-
tion, as an infrastructure lawyer, is to Need to Step Up neering activities,” defined broadly as
treat a research project much like other deliberate intervention of the marine
types of infrastructure projects. By Wil Burns environment to manipulate natural
You need a strategy for entitlement processes. Second, it would require
I
and development. You must identify will outline the potential inter- permits issued by the parties to the
the stakeholders, both those who are national institutions that might convention before such activities occur,
aligned with you and those who are govern one of these two categories including a requirement to limit or re-
opposed to you. You should consider of geoengineering that we’ve been dis- duce potential pollution in the marine
why they have those positions and cussing, carbon dioxide removal, both environment “as far as practicable.”
how they might change their views in terms of research and, later, the Third, permits are limited to legitimate
over time, appreciating their concerns governance issues in deploying these scientific research and there can be no
and drivers. You should find allies who approaches. pecuniary gains. Finally, the amend-
may be in a better position to advo- There have been two international ment establishes a risk assessment
cate points than you are, at least on regimes to date that have sought to framework, plus relevant monitoring
positions where you have alignment. regulate geoengineering. The first is and reporting to the secretary of the
Transparency is essential: if you are the Convention on the Prevention convention and to the other parties.
going to say something in one forum, of Marine Pollution by Dumping While this amendment to the
make sure it is consistent with what of Waste and Other Matter, which protocol would be legally binding
you are saying elsewhere. In today’s is usually referred to as the London and would substantially expand the
56 | T H E E N V I R O N M E N T A L F O R U M Reprinted by permission from The Environmental Forum®, May/June 2020.
Copyright © 2020, Environmental Law Institute®, Washington, D.C. www.eli.org.T HE DEB AT E
purview of what could be regulated some of these activities might have on sinks and reservoirs. So to the extent
under the London Dumping Conven- human health, or social justice impli- that carbon dioxide removal options
tion, there are some big limitations. It cation, such as impacts of diverting are a way to protect and enhance
would be restricted to marine-based large amounts of land and potentially sinks by taking carbon dioxide from
approaches. Further, this regime has raising food prices for some of the the atmosphere, it would seem that it
no particular expertise in the context world’s most vulnerable. would be one of the potential forms
of geoengineering. It has a limited Finally, quite frankly this has been of mitigation that could be incorpo-
number of parties, only half the num- a relatively feckless regime. It hasn’t rated into parties’ NDCs. This is also
ber of the convention. Perhaps most done a particularly good job of arrest- consistent with Article 5 of the agree-
importantly the amendment to the ing the decline of biodiversity. And ment, which expressly calls for the
protocol will only come into force so one would be hard-pressed to be parties to take action and conserve
when two-thirds of the parties have particularly effective in addressing this and enhance sinks and reservoirs of
adopted it. To date only five parties issue, which is arguably outside of its greenhouse gases.
have adopted this amendment. So purview. Paris could also be invoked to regu-
at this point the London Dumping The question arises as to what other late the use of carbon dioxide removal
Convention’s governance is largely potentially pertinent regimes and prin- by parties in several ways that might
restricted to recommendations with, ciples might govern carbon dioxide re- be pertinent. First of all, in the pre-
again, a focus on marine geoengineer- moval approaches at the international amble it indicates that when measures
ing activities. level in the future. Probably one of the are taken to address climate change
The Convention on Biological most logical ones would be the climate there is a need to “respect, promote,
Diversity has also scrutinized ocean regime, right? and consider” obligations in terms of
iron fertilization. The parties passed a If we were to utilize climate geo- human rights.
resolution in 2008 that called for com- engineering options in the future, Some of the carbon dioxide re-
piling scientific information on such presumably we would be doing it as moval approaches we’re talking about
fertilization, which the regime has part of a suite of responses in which could have human rights implications.
been doing on a pretty regular basis. In we would seek to radically reduce our For example, large-scale use of bioen-
2010, the CBD passed a resolution to greenhouse gas emissions, adapting to ergy with carbon capture requires huge
regulate geoengineering research, again climatic impacts that are inevitable, diversions of agricultural lands for bio-
restricting it to “small scale scientific and deploying these approaches to energy feedstocks, which some people
research.” Notably, the CBD is not presumably buy us time or to help us argue could massively raise food prices.
closing expansion of geoengineering in so-called overshoot scenarios where Some have argued that this could po-
activities in the future. temperatures exceed the targets of tentially contravene the human right
Also notably this is a pretty capa- the Paris Agreement. Since we would to food.
cious definition of geoengineering, be seeking to reduce temperatures Bioenergy with carbon capture
unlike under the London Dumping by drawing carbon out of the atmo- deployed at large scale also might
Convention, which is restricted to ma- sphere, the Paris regime would seem require as much water as all the water
terials placed in the oceans. The CBD pertinent. that we currently use for irrigation.
measure governs any technologies that The initial question is whether the As a consequence, it could have im-
deliberately reduce solar insolation, parties could include carbon dioxide plications for the human right to wa-
which would encompass solar radia- removal options in their pledges, their ter. To take another example, ocean
tion management approaches, or that so-called Nationally Determined iron fertilization might undermine
increase carbon sequestration on a Contributions. Well, if you look at fisheries, which could have implica-
large scale. Article 4 of the agreement, it says the tions in terms of rights to subsistence
But the CBD also has some serious parties are to prepare these NDCs and and development.
limitations. First of all, as is true with pursue domestic mitigation measures Finally, there are customary inter-
the London Dumping Convention, to achieve the objectives of such con- national law principles that would
these are not legally binding resolu- tributions. be pertinent at least to large-scale
tions on the parties. Second, again, Now, while the term mitigation deployment of these techniques. This
this is a regime that doesn’t have any strangely enough is not defined in includes the precautionary principle,
particular expertise in this field. Third, the Paris Agreement, it is in its parent which arguably could cut either way,
and maybe most importantly, the agreement, the UN Framework Con- either limiting geoengineering deploy-
focus of the regime is on the potential vention on Climate Change. The con- ment or requiring it to offset danger-
impacts of geoengineering activities vention defines mitigation as limiting ous climate change, and the no-harm
on biodiversity. So it’s not likely to fo- emissions of greenhouse gases and pro- principle where transboundary im-
cus on issues such as the impacts that tecting and enhancing greenhouse gas pacts might occur.
Reprinted by permission from The Environmental Forum®, May/June 2020. M A Y / J U N E 2 0 2 0 | 57
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