The burning of fossil fuels and other human activities are continuing to cause rapid temperature rise. 2024 was the hottest year on record, and the planet’s 10 warmest years since 1850 have occurred in the past decade. Achieving global climate goals will require rapid and dramatic greenhouse gas emissions reductions, along with the removal of greenhouse gases from the atmosphere. Scientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Early efforts primarily focused on land-based approaches, but interest in ocean-based approaches, also known as marine CDR, has grown in recent years.
Marine CDR approaches appear to hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has analyzed the potential for this legal framework to impose liability on marine CDR project proponents (e.g., for environmental harms resulting from their activities). This new report begins to fill that gap with regard to projects in U.S. ocean waters.
At a high level, liability rules hold actors responsible when they breach a law or legal duty in a way that harms other people or the public at large. Liable actors may be required to remedy the harms caused by their actions, to pay damages, or may be subject to criminal penalties (among other things). As the report released today shows, a number of U.S. federal laws impose permit and other requirements applicable to marine CDR projects. These include the Marine Protection, Research, and Sanctuaries Act, the Clean Water Act, the Rivers and Harbors Act, and the Outer Continental Shelf Lands Act. These statutes could impose liability on mCDR project proponents who violate the laws by failing to comply with the relevant statutory requirements. Such violations could result in both civil and criminal penalties, with some statutes imposing fines for each day a violation continues.
Marine CDR project proponents could also be held liable for the harmful impacts of their projects under tort (i.e. judge-made) law. While some forms of tort law are unlikely to apply to marine CDR projects, others are relevant, especially for projects in state ocean waters. Application of state tort law is likely to vary based on, among other things, the specific location and impacts of a given project.
Application of statutory and tort liability to marine CDR project proponents is complex and uncertain, with the potential for overlapping state and federal liability. Further, the existing liability frameworks seek to restrict environmentally harmful activities, but do not promote potential environmental benefits. A different liability framework may better be able to balance these competing concerns.
The report released today concludes by analyzing three existing environmental liability regimes used in other sectors that may serve as models for a new liability regime to govern marine CDR: (1) the unified federal oil spill liability regime, (2) the insurance structure for nuclear accidents, and (3) environmental “Good Samaritan” statutes. These alternative regimes represent paths towards simplifying liability for marine CDR, fostering the development of experimental marine CDR techniques, and protecting good-faith efforts to limit and reverse the environmental damage caused by climate change.
Read the report here.
The report is part of the Sabin Center’s ongoing work on carbon management and negative emissions. Previous reports have analyzed the international and U.S. legal framework applicable to several marine CDR techniques, including seaweed cultivation, ocean alkalinity enhancement (“OAE”), ocean fertilization, and artificial upwelling and downwelling. Previous reports have also analyzed state authority to regulate OAE, and looked at state regulation of seaweed cultivation in California and OAE in Washington. The Sabin Center has also published model federal legislation and recommended executive actions to promote safe and responsible marine CDR research in the U.S.
Korey is the senior fellow in carbon management and negative emissions at the Sabin Center for Climate Change Law
