The Week in Carbon Dioxide Removal: Three Take-Aways

Week 1 Edition

Professor Wil Burns, Environmental Policy & Culture Program, Northwestern University

This is the first installment of a new column that will seek to highlight “three big stories” in the realm of carbon dioxide removal each week. Of course, there’s always room for disagreement in terms of my “priorities,” and I’ll always appreciate hearing from our community where you deem me to be misguided.

Story 1: Launching of the Carbon Business Council

On Tuesday of this week, the Carbon Business Council was launched, with Ben Rubin serving as the inaugural Executive Director. The Council, comprised of 42 members at the outset, all carbon removal companies, seeks to support and advocate for the nascent sector. It’s contemplated that the Council’s remit will include lobbying for legislation to facilitate carbon removal (including seeking to create an “equal playing field for all carbon management approaches”), and seeking to strengthen connections of companies, investors, buyers and non-profit organizations.

Among the Council’s guiding principles and goals are seeking to strengthen voluntary carbon markets, acknowledging the importance of traditional mitigation efforts, and establishing separate targets for emissions reductions and carbon removal. The Council has also drafted an “Oath to Restore the Earth,” to be signed by carbon removal countries, which emphasizes, inter alia, the need for the carbon management industry to be guided by science, facts, transparency, and independently verified data.”

Story 2: Carbon Negative Shot Summit

On Wednesday of this week, the U.S. Department of Energy’s (DOE) Office of Fossil Energy and Carbon Management convened the Carbon Negative Shot Summit, the third target within DOE’s Energy Earthshots Initiative. The Carbon Negative Shot was launched by U.S. DOE in 2021 to advance the development of the carbon dioxide removal industry. It is conceived of as “an all-hands-on-deck call for innovation in CDR pathways that will capture CO2 from the atmosphere and durably store it at gigaton scales for less than $100/net metric ton of CO2-equivalent.” Its overarching objective is to help spur innovation, with an eye to achieving a global net-zero carbon emission goal, and ultimately to remove “legacy emissions” from the atmosphere.

The Summit’s speakers included the Secretary of Energy, Jennifer Granholm, two of the leading supporters of CDR legislation in Congress, Senator Sheldon Whitehouse, and Scott Peters, Anna Fendley, Director of State and Regulatory Policy for the United Steelworkers, Nan Ransohoff, who heads up Stripe’s climate program, and Professor Scott Doney of the University of Virginia, who has been very active in ocean-based CDR activities, including helming the National Academy of Science’s report on ocean CDR last year.

I will summarize the proceedings from the meeting when the recording of the conference is released, as I wasn’t able to attend due to other obligations.

Story 3: Sabin Center Report on Ocean Iron Fertilization and the Law

This week, Columbia Law School’s Sabin Center for Climate Change Law released the latest of its reports on law and governance issues associated with ocean-based carbon dioxide removal approaches. The report, focused on ocean fertilization approaches, is entitled Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges and Opportunities (2022). The authors are Kori Silverman-Roti, Romany M. Webb & Michael B. Gerrard.

Among the primary conclusions of the report are the following:

• The ultimate sequestration potential of ocean fertilization remains highly contested, with field studies to date, focused on iron fertilization, yielding extremely mixed results in terms of the prospects for long-term carbon dioxide storage;
• Ocean fertilization could potentially produce co-benefits, such as stimulating growth in fish stocks and ameliorating ocean acidification. However, it could also pose risks associated with mineral mining, as well as potential negative ecosystem impacts, including nutrient robbing and harmful algal blooms;
• While there are not currently any legal regimes with legally binding provisions related to ocean fertilization, several regimes have already addresses ocean fertilization, or would appear to have legal authority to do so.
• The London Convention and Protocol. The Parties to the Convention passed a resolution declaring ocean iron fertilization to NOT constitute dumping if conducted in a way that isn’t contrary to the aims of the Convention or its Protocol. However, this circumscribes the circumstances under which such operations can be conducted. Alternatively, a party to the Convention could potentially permit ocean fertilization as dumping under the Convention, because iron, phosphorus and nitrogen aren’t on its Annex I list of prohibited substances. However, this wouldn’t be the case under the Protocol, as it’s not listed in its Annex I as one of the substances that can be dumped. The marine geoengineering amendment to the London Protocol could establish “a new permitting regime specific to ocean fertilization,” however, very few Parties have ratified it to date.
• The Convention on Biological Diversity contains several provisions potentially pertinent to ocean fertilization, including the obligation to identify activities potentially harmful to biodiversity, and to conduct environmental to prevent or ameliorate potential negative impacts. The Parties also have passed several non-legally binding resolutions on “geoengineering,” which could encompass ocean fertilization under many circumstances. These resolutions stipulations largely track those of the resolutions passed by the Parties to the London Convention/Protocol;
• The Law of the Sea Convention also contains a number of potentially pertinent provisions, including its section on marine scientific research, prevention and amelioration of pollution. It provides for liability for breach of legal obligations, and mechanisms for dispute resolution.
• There are also a number of legal agreements that might be brought to bear on ocean CDR approaches, including agreements governing shipping, The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the World Heritage Convention, the Antarctic Treaty, and others. The report also discusses potentially applicable principles of customary international law.
• Finally, the report examines potentially pertinent U.S. laws, including the Marine Protection, Research and Sanctuaries Act, the Clean Water Act, and the National Marine Sanctuaries Act, as well as laws governing mining and processing of the minerals contemplated to be used in such operations.

This report, as was case for the ones that were released prior to this provides an excellent roadmap for legal researchers, as well as start-ups that have to navigate the shoals of the ocean regulatory environment.