At the Sabin Center, we have been writing about international legal guidelines that should guide governance discussions of marine carbon dioxide removal (mCDR) under the London Convention and Protocol. We published a white paper, and followed that up with two blogs (see here and here) summarizing the findings of that paper. In this, the third and final blog in the series, we analyze the treaties’ approach to governing a different climate intervention technique—sub-seabed sequestration of carbon dioxide—and what lessons that experience may hold for governance of mCDR.
Sub-seabed sequestration of carbon dioxide involves the storage of carbon dioxide in geologic formations beneath the seafloor. This is already occurring—for example, in the North Sea, where carbon dioxide captured at industrial sources (e.g., cement plants) is being injected into reserves under the seabed. Other projects (like this one) are looking at the possibility of sub-seabed sequestration of carbon dioxide removed from the ambient air, for example, via direct air capture.
As this blog shows, the history of sub-seabed sequestration governance provides valuable lessons for how to approach governance of mCDR. From the start, parties recognized the potential of sub-seabed sequestration to help mitigate climate change, and identified that as a worthy goal to be pursued via the London Convention and Protocol. The parties moved quickly to amend the treaties to facilitate sub-seabed sequestration projects. They also developed a framework for assessing proposed projects that explicitly requires such projects to be considered “within the context of … Parties’ approaches to reducing greenhouse gas emissions and mitigating climate change.” The parties have shown an ability, and willingness, to balance climate mitigation benefits with local environmental risks when evaluating sub-seabed sequestration projects under the treaties—something that we’ve long recommended they should do with respect to mCDR (see here, for example).
The history of sub-seabed sequestration governance demonstrates how parties can harmonize their international legal obligations to address climate change. In our previous white paper and blogs in this series, we discussed the application of four international legal guidelines to mCDR governance: precaution, prevention, due diligence, and environmental impact assessments (EIAs). Summarizing broadly, to operationalize these guidelines, parties should seek out scientific information to evaluate new climate mitigation techniques and, in evaluating those techniques, consider climate mitigation potential alongside potential environmental risks. Parties can draw from the history of sub-seabed sequestration governance under the London Convention and Protocol in advancing these goals in the context of mCDR.
History of Sub-Seabed Sequestration Governance
The London Convention was adopted in 1972 “to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, [or] to harm living resources and marine life . . . .” The London Protocol, which is intended to eventually replace the Convention, sets a more ambitious goal to “prevent, reduce, and where practicable eliminate pollution caused by dumping.” Both the London Convention and Protocol define dumping to mean “any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea” (with limited exceptions). The London Protocol also includes, within the definition of dumping, “any storage of wastes or other matter in the seabed and subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea” (again with limited exceptions).
In the late 1990s, with concerns about climate change growing and many countries looking to develop new climate change mitigation strategies, the parties to the London Convention and Protocol began to consider whether and how those instruments might apply to sub-seabed sequestration of carbon dioxide. The parties determined, early on, that the sub-seabed injection of materials could qualify as dumping—that was expressly stated in the London Protocol and implied in the London Convention. Under both instruments, dumping must be permitted by the country under whose jurisdiction it occurs, but the London Convention and Protocol include different rules for issuing permits. The London Convention authorizes parties to permit the dumping of any waste or other matter, unless it is listed in Annex I to the Convention. Carbon dioxide is not listed in Annex I, and thus, generally, parties may permit its injection into sub-seabed geologic formations.
In contrast, the London Protocol adopted a “reverse listing” approach, whereby parties were prevented from permitting the dumping of any substance, unless it was listed in Annex I to the London Protocol. As originally adopted, Annex I did not include carbon dioxide, and thus parties to the London Protocol could not issue permits for sub-seabed carbon sequestration. In 2006, the parties agreed to an amendment, which added “carbon dioxide streams from carbon dioxide capture processes for sequestration” to Annex I. That 2006 amendment entered into force in 2007. Later, in 2009, the parties agreed to another amendment to facilitate the export of carbon dioxide for sequestration. The 2009 amendment has not yet entered into force but, in 2019, the parties adopted a resolution to allow it to be provisionally applied (i.e., to allow export of carbon dioxide for sub-seabed sequestration before the 2009 amendment formally enters into force).
The London Convention and Protocol parties’ support for sub-seabed carbon sequestration and efforts to facilitate it (including through amendment) demonstrate the ability of the treaties to address complex tradeoffs between climate mitigation and environmental protection. Some of the key lessons learned are discussed below.
1. The Parties recognized a role for the London Convention and Protocol in advancing climate change mitigation and supported reforms to facilitate sub-seabed carbon sequestration based on its climate change mitigation benefits.
From the very beginning of discussions under the London Convention and Protocol, sub-seabed carbon sequestration was presented as a way of mitigating climate change. At the 2004 meeting of the parties to the London Convention and Protocol—the first where sub-seabed carbon sequestration was addressed in detail—the UK delegation highlighted the growing risks from climate change and the potential for sub-seabed carbon sequestration to help mitigate climate change. Other parties accepted that sub-seabed carbon sequestration would have climate benefits, though there was some concern about its potential to discourage emissions reductions. For example, at a previous meeting, the delegation of France is said to have “expressed … concern that research related to [carbon dioxide] disposal at sea should not deflect attention and resources from the need to prevent and reduce [carbon dioxide] emissions in the first place.”
In evaluating sub-seabed carbon sequestration, parties to the London Convention and Protocol relied heavily on scientific reports, especially from the Intergovernmental Panel on Climate Change (IPCC). One example is the 2005 IPCC Special Report on Carbon Dioxide Capture and Storage, which is mentioned multiple times as an authoritative scientific report to guide the parties in meeting documents. The 2006 IPCC Guidelines for National Greenhouse Gas Inventories was also cited by the parties and demonstrated that carbon capture and storage (CCS) represented a viable climate mitigation technology with clear accounting guidelines. This shows the parties’ willingness to engage with authoritative climate science by the IPCC, and lead with the science in making governance decisions.
Notably, the parties accepted that climate change mitigation is something that should be advanced under the London Convention and Protocol. For example, the UK delegation argued the treaties are “well positioned to play an important role in ensuring that any development of [carbon dioxide] sequestration in the marine environment was within a clear legal framework that permits climate change mitigation” (emphasis added). Implicit in this statement is a recognition that the London Convention and Protocol can, and perhaps should, be used to advance action on climate change. Other parties appear to have agreed with this position.
2. Parties moved quickly to adopt the 2006 and 2009 amendments.
Parties to the London Convention and Protocol first considered sub-seabed carbon sequestration in 1999, but at that meeting only agreed to have the scientific groups monitor developments and keep the parties informed. The issue was not discussed in detail amongst the parties until 2004. From then, it took only two years for the parties to adopt the amendment allowing sub-seabed carbon sequestration projects to be permitted under the London Protocol. Parties appear to have felt the need to act based on the urgency of climate impacts and the growing development of sub-seabed carbon sequestration projects.
It is notable that neither of the 2006 nor the 2009 amendments to the London Protocol dealing with sub-seabed carbon sequestration were adopted by consensus. Consensus decision-making is the default under the London Convention and Protocol (even though it is not, strictly speaking, required under the rules of practice) but it was put aside here, with the parties agreeing to adopt the amendment by majority vote.
3. There was a real effort to engage with, and learn from other, international bodies.
The London Convention and Protocol parties made a concerted effort to coordinate their work on sub-seabed carbon sequestration with that occurring under other treaty regimes, such as the Convention for the Prevention of the Marine Environment of the North-East Atlantic (OSPAR Convention). The OSPAR Convention adopted an amendment to allow sub-seabed carbon sequestration in 2007, just one year after the London Protocol amendment Multiple meeting documents also include references to coordinating work with the UN Framework Convention on Climate Change (UNFCCC). For example, a working group on the issue was directed, from the start, to “consider whether the London Convention/Protocol has a role in relation to other work being carried out on CO2 sequestration, for example, in relation to [the] UNFCCC.”
The London Convention and Protocol parties should be commended for this effort which, as explained in our recent white paper, is essential to uphold the parties climate change-related international legal obligations. As the International Court of Justice (ICJ) wrote in its Advisory Opinion on Climate Change, countries “must take their obligations under the climate change treaties . . . into account” when interpreting their obligations under other relevant treaties. Thus, for example, parties to the London Convention and Protocol must take into account their climate-related obligations under the UNFCCC and Paris Agreement when regulating climate-related activities under the treaties.
4. The Parties developed an assessment framework for sub-seabed sequestration projects that includes climate policy considerations.
In 2012, parties to the London Protocol developed specific guidelines for assessment of sub-seabed carbon dioxide storage. The guidelines include specific provisions on consideration of waste management options, risk assessments, field monitoring, and mitigation plans, among other things.
The guidelines suggest that parties follow a two-step process in determining whether a sub-seabed carbon sequestration project should proceed. First, parties undertake impact evaluations including “an assessment of the likelihood for [carbon dioxide] migration and leakage and associated impacts and a suitable risk management plan.” Second, if these evaluations are found to be satisfactory, parties make a decision on whether to issue a permit. Importantly, the assessment framework states that “[c]arbon dioxide sequestration in sub-seabed geological formations is a management option to be considered within the context of Contracting Parties’ approaches to reducing greenhouse gas emissions and mitigating climate change.” Thus, parties are directed to frame consideration of projects in light of their broader climate goals.
As explained in our white paper and previous blog, international rules on the application of EIAs indicate that parties to the London Convention and Protocol must consider climate benefits when conducting EIAs for climate-related activities. In regulating activities with regard to climate change, international courts have set specific guidelines around how States should conduct EIAs—namely that countries must assess the climate impacts of activities within their EIAs. As the ICJ wrote in its Advisory Opinion on Climate Change, “possible specific climate-related effects must be assessed as part of EIAs at the level of proposed individual activities, e.g. for the purpose of assessing their possible downstream effects.” The London Protocol parties’ guidelines for assessment of sub-seabed sequestration projects represent one effort to incorporate climate consideration into an EIA process—namely that parties must consider approaches to mitigating climate change in their assessment of individual sequestration projects.
Conclusion
The history of sub-seabed carbon sequestration governance under the London Convention and Protocol provides lessons for mCDR governance under the treaties. First, parties can pursue regulation of activities in a way that facilitates climate mitigation and provides for local environmental protection. Sub-seabed sequestration governance under the treaties advances both of these goals. Second, parties can move quickly to establish governance frameworks when the issue is urgent. The urgency of the climate crisis, and the rapidly growing mCDR field, suggest that parties should move quickly to develop an adequate governance structure for mCDR activities. Third, parties can and should engage across treaty bodies when governing mCDR activities. This should include engagement with and consideration of obligations under climate change treaties, like the UNFCCC. Fourth, parties should develop an assessment framework for mCDR activities that takes into account climate mitigation potential and local environmental risks, as has been done in the sub-seabed sequestration context. This would uphold country obligations under international rules on the application of EIAs to climate-related activities.
Great Job Korey Silverman-Roati and Romany Webb & the Team @ Climate Law Blog Source link for sharing this story.
