{"id":19563,"date":"2023-09-28T07:45:38","date_gmt":"2023-09-28T12:45:38","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=19563"},"modified":"2023-10-25T10:06:41","modified_gmt":"2023-10-25T15:06:41","slug":"the-evolving-legal-landscape-for-ocean-based-carbon-dioxide-removal","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2023\/09\/28\/the-evolving-legal-landscape-for-ocean-based-carbon-dioxide-removal\/","title":{"rendered":"The Evolving Legal Landscape for Ocean-Based Carbon Dioxide Removal"},"content":{"rendered":"
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The Sabin Center wrapped up Climate Week NYC last Friday with an event<\/a> exploring the opportunities and challenges posed by ocean-based carbon dioxide removal (CDR). As evidenced by the 150-plus people in attendance, ocean CDR is attracting growing attention as a possible climate change mitigation option. It is not hard to see why. The Intergovernmental Panel on Climate Change recently concluded<\/a> that CDR will be needed, alongside deep emissions cuts, to limit global warming to 1.5 to 2o<\/sup>C in line with the goals of the Paris Agreement. There is growing consensus<\/a> that a variety of CDR approaches will be required. Ocean-based approaches, such as ocean fertilization and ocean alkalinity enhancement, appear to hold promise. But, as noted in a 2021 National Academies of Sciences (NAS) report<\/a>, key questions remain about their efficacy, benefits, and risks. The NAS report called for development of \u201ca research program for ocean CDR,\u201d and identified priority research investments totaling approximately $1.4 billion. Others have advocated for even larger investments in research (see here<\/a> for an example).<\/p>\n

\"\"<\/a>
Credit: Mesa Schumacher<\/a><\/em><\/figcaption><\/figure>\n

Funding is, of course, essential to advance ocean CDR research but other factors could also have a major bearing on future projects. As previously reported<\/a> on this blog, ocean CDR research could implicate various international and domestic laws that might affect whether, when, where, and how projects take place. Among the international legal instruments that might apply to ocean CDR are the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter<\/a> (London Convention or LC) and the 1996 Protocol to the Convention<\/a> (London Protocol or LP). Parties to those instruments are set to meet in London next week\u2014from October 2 to 6\u2014to discuss the regulation of so-called \u201cmarine geoengineering activities\u201d (among other things). The outcome of those discussions could have a major bearing for future ocean CDR projects.<\/p>\n

Briefly, by way of background, both the LC and LP aim to limit ocean dumping. The LC was adopted first in 1972. Twenty years later, in 1992, the parties agreed to the LP which was intended to update and eventually replace the LC. However, before the LC can be replaced, all of the countries that are party to it must ratify the LP. Many haven\u2019t yet done so. The U.S., for example, is a party to the LC but has not yet ratified the LP.<\/p>\n

Both the LC and LP require parties to adopt domestic laws to regulate the \u201cdumping\u201d of \u201cwaste and other matter\u201d at sea. Dumping is defined broadly to mean \u201cthe deliberate disposal of waste or other matter at sea from vessels, aircraft, platforms, or other manmade structures.\u201d Legal scholars, myself included, have long debated whether and when this definition might encompass ocean CDR activities that involve adding materials to the ocean.<\/p>\n

For example, would the definition capture ocean fertilization projects<\/a> in which vessels discharge iron or other nutrients onto the surface of the water, with the goal of stimulating the growth of phytoplankton that uptake carbon dioxide as they grow? What about ocean alkalinity enhancement projects<\/a> that involve the discharge of alkaline substances (e.g., ground rock) into the ocean? What about artificial upwelling \/ downwelling projects<\/a> that use long vertical pipes to cycle water between the deep ocean and the surface? In each case, something is added to the ocean\u2014nutrients in ocean fertilization, ground rock in ocean alkalinity enhancement, and pipes in artificial upwelling \/ downwelling. But the projects arguably don\u2019t involve \u201cdeliberate disposal.\u201d After all, materials are not being added to the ocean to get rid of them, but rather for the purpose of CDR.<\/p>\n

In both the LC and LP, the definition of \u201cdumping\u201d excludes the \u201cplacement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of\u201d of the LC \/ LP. What this means for ocean CDR has, too, been hotly debated.<\/p>\n

Some clarity emerged in 2008, when the parties to the LC and LP adopted a resolution<\/a>, dealing with ocean fertilization. The resolution stated that ocean fertilization projects conducted for research purposes \u201cshould be regarded as placement of matter for a purpose other than mere disposal, and thus will not be classed as dumping, provided they are \u201cnot contrary to the aims of the\u201d LC \/ LP. The parties subsequently, in 2010, adopted a framework<\/a> for assessing research projects. The framework provides that countries \u201cshould\u201d only conclude that research is not contrary to the aims of the London Convention and Protocol, and thus not dumping, if \u201cconditions are in place to ensure that . . . environmental disturbance would be minimized and the scientific benefits maximized.\u201d<\/p>\n

The 2008 resolution and 2010 assessment framework are not legally binding. But, in 2013, the parties to the LP adopted an amendment<\/a> that is intended to be. The amendment deals with the \u201cplacement of matter into the sea\u201d for the purpose of \u201cmarine geoengineering,\u201d which the parties defined to mean:<\/p>\n

\u201ca deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and\/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be widespread, long lasting or severe.\u201d<\/p>\n

The amendment requires parties to the LP to prohibit \u201cthe placement of matter into the sea\u201d in connection with listed marine geoengineering activities \u201cunless the listing provides that the activity . . . may be authorized under a permit.\u201d Only ocean fertilization has been listed so far. The listing only allows for the issuance of permits for ocean fertilization research (not deployment) and only if certain requirements are met. Some in the ocean CDR community have expressed concern that the requirements are difficult to meet and thus could hinder needed research. Particular concerns have been expressed about a requirement that research not result in any \u201cfinancial and\/or economic gain,\u201d with some arguing that this could prevent privately-funded research that is intended to advance commercial interests.<\/p>\n

The 2013 amendment has not yet entered into force. For that to happen, it must be ratified by two-thirds of the parties to the LP. That seems unlikely in the near future given that, in the 10 years since the amendment was adopted, only six of the 55 parties to the LP have ratified it. Moreover, even if (or when) the amendment does enter into force, it will only be legally binding on LP parties. Countries, like the U.S., that are only party to the LC won\u2019t be legally bound by the amendment. It might still influence their actions, however.<\/p>\n

In June this year, a legal committee appointed to advise the LC and LP parties on marine geoengineering issued a draft statement<\/a> on the 2013 amendment. While the exact wording is still to be finalized, as shown by the inclusion of text in square brackets, the draft statement emphasizes the importance of the 2013 amendment, not only for parties to the LP but also for non-parties. According to the statement:<\/p>\n

“Parties to the LP who accepted the 2013 amendment [shall][should] refrain from acts which would defeat the object and purpose of the amendment pending its entry into force . . . Parties to the LP who have not yet accepted the amendment, and Parties to the LC are strongly encouraged to refrain from such acts.”<\/p>\n

The legal committee also suggested<\/a> that the 2013 amendment could be \u201cprovisionally applied\u201d before it enters into force. This has happened with other amendments to the LP. For example, in 2019, the parties to the LP agreed to allow the provisional application of a 2009 amendment allowing the export of carbon dioxide for sub-seabed storage (more on that here<\/a>). The parties might similarly agree to provisional application of the 2013 amendment.<\/p>\n

There is also talk about possibly expanding the range of activities that are listed, and thus regulated, under the 2013 amendment. As noted above, currently, the amendment only applies to ocean fertilization. However, early last year, GESAMP\u2014a group of independent scientific experts that advises the UN system on marine protection\u2014identified seven other activities \u201cthat the [LP] parties might wish to consider for listing.\u201d A scientific group advising the parties subsequently published<\/a> a short-list of four activities that they said deserve \u201cpriority evaluation.\u201d Two of them are ocean CDR activities, namely (1) \u201cenhancing ocean alkalinity\u201d and (2) \u201cmacroalgae cultivation and other biomass sequestration including artificial upwelling.\u201d The latter category includes seaweed cultivation and sinking<\/a>, which is gaining increasing attention as a potential CDR technique. (The other two activities listed for priority evaluation involve solar radiation management.)<\/p>\n

For the past several months, the scientific group and legal committee have been evaluating the activities, so as to inform the parties\u2019 decision on whether to list them under the 2013 amendment. The results of that evaluation were published in June (see here<\/a> for the scientific group\u2019s report and here<\/a> for the report of the legal committee).<\/p>\n

Interestingly, the scientific group concluded that the broad category of \u201cenhancing ocean alkalinity\u201d should be divided into three sub-categories based on \u201chow alkalinity is produced and where the [carbon dioxide] drawdown takes place.\u201d Specifically, the group distinguished between:<\/p>\n

“A) Adding alkaline material (natural or artificial substances) to the marine environment;<\/p>\n

B) Adding alkaline material to the marine environment that is produced by electrochemical approaches; and<\/p>\n

C) Controlled alkalinisation in reactors with discharge of a [carbon dioxide]-equilibrated or alkaline solution to the marine environment.”<\/p>\n

This may seem like a purely scientific distinction but it has important legal consequences. Indeed, the legal committee determined that while activities falling with sub-groups (A) and (B) above could be listed under the 2013 amendment, those within sub-group (C) may fall outside the scope of the amendment. This is because the amendment only applies to activities that involve \u201cthe placement of matter at sea\u201d for the purpose of \u201cmarine geoengineering\u201d (as defined above). According to the legal committee, activities in sub-group (C) above that involve the discharge of \u201cequilibrated seawater\u201d (rather than an alkaline solution) do not qualify because the discharge \u201cis merely an act of disposal with no other purpose, and no intention to manipulate natural processes.\u201d<\/p>\n

The legal committee also considered whether macroalgae and artificial upwelling projects might qualify for listing under the 2013 amendment. With respect to the former, the committee distinguished between projects that involve growing and sinking seaweed in the ocean, and those in which seaweed is grown and then harvested for use on land. Ultimately, however, the committee concluded that both classes of projects would qualify for listing under the 2013 amendment. So too, in the committee\u2019s view, would artificial upwelling projects. According to the committee, in each case, material is placed in the ocean for the purpose of manipulating natural processes so as \u201cto remove carbon\u201d and that placement \u201chas the potential to result in deleterious effects.\u201d While the legal committee did not elaborate on those potential effects, they are discussed in detail in a report published by the scientific group (see here<\/a>).<\/p>\n

It remains to be seen what the parties to the LP will do with this information but it is sure to be discussed at next week\u2019s meeting in London. Regardless of the outcome of those discussions, it is likely that some countries will enact domestic laws to control ocean CDR and other \u201cmarine geoengineering\u201d activities.<\/p>\n

Germany has already done just that. In 2020 and 2021, Germany amended two existing laws\u20141998 High Seas Dumping Act and 2009 Water Management Act\u2014to regulate marine geoengineering activities. The German delegation to the IMO recently reported<\/a> that, as a result of the amendments, \u201ccurrently all types of marine geoengineering activities except ocean fertilization . . . research projects [are] prohibited\u201d under domestic law. Australia might do something similar. A bill<\/a> currently before the Australian parliament would, if enacted, prohibit listed marine geoengineering activities without a permit. Like the 2013 amendment to the LP, the Australian bill currently only lists ocean fertilization, but could be expanded to apply to other ocean CDR activities in the future.<\/p>\n

The situation is a little different here in the U.S. The LC is implemented domestically in the U.S. through a federal statute known as the Marine Protection, Research, and Sanctuaries Act (MPRSA). The U.S. Environmental Protection Agency (EPA), which is responsible for administering the MPRSA, has concluded that it may apply to some ocean CDR activities. It won\u2019t apply to all of them, however. As the U.S. delegation to the IMO recently reported<\/a>, the MPRSA will only apply to projects that involve \u201cthe deposition of material in the ocean,\u201d if the project developer does \u201cnot intend, anticipate or prepare to recover the material form the ocean as part of the project.\u201d So, for example, ocean CDR projects that involve the cultivation and harvest of seaweed for use on land may not be captured. Nor may artificial upwelling projects that involve only temporary installation of pipes in the ocean (i.e., that are later removed). As previously reported<\/a> on this blog, those activities might be subject to other domestic laws, but exactly how and when those laws will apply is often highly uncertain.<\/p>\n

The one thing that is clear is that law\u2014both international and domestic\u2014will have a huge bearing on future ocean CDR research. As the 2021 NAS report noted, \u201c[d]eveloping a clear and consistent legal framework is essential to facilitate research . . . while also ensuring that projects are conducted in a safe and environmentally sound manner.\u201d The Sabin Center recently published a model law<\/a> that aims to achieve those dual goals by, on the one hand removing inappropriate barriers to research, and on the other still maintaining appropriate safeguards to minimize environmental and other risks. It remains to be seen whether the U.S. and other countries can achieve the right balance.<\/p>\n

Note: A video recording of the Climate Week NYC event on ocean CDR, which the Sabin Center co-hosted with Ocean Visions, is available here<\/a>. <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Sabin Center wrapped up Climate Week NYC last Friday with an event exploring the opportunities and challenges posed by ocean-based carbon dioxide removal (CDR). As evidenced by the 150-plus people in attendance, ocean CDR is attracting growing attention as a possible climate change mitigation option. It is not hard to see why. The Intergovernmental […]<\/p>\n","protected":false},"author":2327,"featured_media":10040,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5671,65722],"tags":[69267],"class_list":{"0":"post-19563","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-international","8":"category-negative-emissions","9":"tag-ocean-cdr","10":"czr-hentry"},"yoast_head":"\nThe Evolving Legal Landscape for Ocean-Based Carbon Dioxide Removal - Climate Law Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.law.columbia.edu\/climatechange\/2023\/09\/28\/the-evolving-legal-landscape-for-ocean-based-carbon-dioxide-removal\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Evolving Legal Landscape for Ocean-Based Carbon Dioxide Removal - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"The Sabin Center wrapped up Climate Week NYC last Friday with an event exploring the opportunities and challenges posed by ocean-based carbon dioxide removal (CDR). As evidenced by the 150-plus people in attendance, ocean CDR is attracting growing attention as a possible climate change mitigation option. It is not hard to see why. 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