Moving beyond the carbon economy: the challenges for international law

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• Moving beyond the carbon economy the
  challenges for international law
• Professor Catherine Redgwell
• Faculty of Laws
• University College London
• c.redgwell_at_ucl.ac.uk

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Contents

• 1. Background and context the International
  Energy Agencys World Energy Outlook
• 2. Factors driving the transition towards a lower
  carbon future
• 3. International Legal Responses with focus on
• Climate Change
• Carbon Capture and Storage
• Geoengineering solutions?

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(i) IEA World Energy Outlook Reference Scenario
(present trends)

• Global energy demand will rise by 53 by 2030, to
  17,095 Mtoe, largely from developing countries
• Energy-related CO2 emissions will rise even
  faster, by 55, because the share of coal in
  energy production increases
• Electricity demand will double
• Oil production will increase, but with greater
  concentration in a few producers
• With mismatch between resource endowment and
  demand, energy trade and import dependency will
  grow
• Enough petroleum, hydroelectric and uranium
  resources to meet energy demand to 2030 proven
  oil reserves, including unconventional oil,
  could sustain current production for 42 years
• But investment required in energy facilities
  massive US20 trillion in 2005 dollars to 2030

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(ii) IEA World Energy Outlook Alternative Policy
Scenario

• Global primary energy demand 10 lower than RS,
  at 15,405 Mtoe
• Demand for all fossil fuels, especially coal,
  increases, but not as much as under the RS, with
  greater growth in nuclear, non-hydro renewables,
  biomass and waste
• Trade expands but oil imports to OECD countries
  drops after 2015
• Global CO2 emissions are 16 lower than under RS
  and in OECD countries they level off and decline
  to 2030
• 560 billion less than RS needed for
  infrastructure, in part because energy efficiency
  etc shifts focus to energy consumers (negawatt)

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(iii) WEO 2009 Climate Change excerpt released
6 October 2009

• How the energy sector can deliver on climate
  agreement in Copenhagen
• 2/3 GHG emissions from energy thus at the heart
  of the problem and key to its solution
• 450 scenario Long-term stabilisation of
  concentration of GHG emissions in atmosphere at
  450ppm of CO2 equivalent (2 degree C increase in
  temperature)
• Updates reference scenario under which
  stabilisation at 1000ppm by 2050
• Increased investment in energy efficiency and
  low-carbon power generation (10.5 trillion
  2010-2030)
• Fossil fuels still have a role to play, but 450
  scenario requires consumption to peak at 2020 and
  decline thereafter
• Dip in emissions in 2009 owing to financial and
  economic crisis creates a window of opportunity
• Assumes all regions engage in mitigation,
  consonant with common but differentiated
  responsibilities, and cap and trade in all OECD
  countries by 2013

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Factors driving transition BTCE

• Climate change
• Energy Security
• Increased Demand for Energy (with consequent
  resource depletion, energy security and climate
  change impact)
• Market, political and institutional restrictions
  on investment
• Eradicating energy poverty (up to 1/3 worlds
  population lack access to modern energy services
  estimates put 1.6 billion people without
  electricity 2.6 billion use fuel wood, charcoal
  and animal dung to meet daily energy needs for
  cooking and heating)

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• The link between energy and development is
  well established. Modern energy services are
  indispensable to improving productivity, creating
  enterprises, increasing employment and incomes,
  and providing effective public services - such as
  education and healthcare. Given the fundamental
  importance of energy for achieving sustainable
  development, it will not be possible to reach the
  United Nations Millennium Development Goals by
  2015, as agreed by the world's leaders, without
  increased attention to the provision of energy to
  the world's poorest societies."
  (Secretary-General, Energy Charter Treaty,
  September 2009)
• G8 Energy Summit May 2009 joint declaration
  includes reference to energy poverty particularly
  in Africa and the need to encourage the
  mobilisation of increased financing for
  addressing the problem of energy access
  throughout Africa

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International legal responses

• 1. Adapt, mitigate and trade Current negotiation
  of legal framework beyond 2012 commitment period
  under Kyoto Protocol
• 2. Recent amendments to 1996 London Protocol and
  1992 OSPAR (Dumping) to permit sub-seabed
  disposal of CO2
• 3. Consideration by scientific body under the
  Biodiversity Convention of liquid biofuel
  production and its impact on biological
  diversity, noting also its beneficial impact
  (Brazil, Mali, underscored importance of biofuel
  development for poverty alleviation)
• 4. Geoengineering the climate?
• 5. Future attention to promoting renewable energy
  and energy efficient technologies eg through a
  UNGA resolution (set objectives and common
  principles establish measures for measuring
  energy efficiency in energy supply systems and
  consumption and for appropriate energy pricing
  mitigate environmental impacts promote education
  and information and foster international
  cooperation)

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1. Climate Change post 2012 legal framework

• December 2007 Bali Action Plan adopted launching
  a process to reach an agreed outcome on
  long-term cooperative action on climate change
  with a scheduled end at the Copenhagen COP
  December 2009
• agreed outcome signals lack of agreement on
  legal form such outcome should take, and its
  level of ambition
• Decision of COP? Protocol to FCCC, supplementing
  or replacing KP? Amendment to KP? Combination?
  Largely a political vs legal choice

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Climate Change contd

• Climate regime comprises 1992 Convention and 1997
  Kyoto Protocol, both in force
• Current KP commitments require industrialised
  countries to reduce GHG to 5 below 1990 levels
  in the commitment period 2008-2012
• IPCC recommends 25-40 below 1990 levels by 2020
  for industrialised countries (4th assessment
  report 2007)
• Kyoto commitment period end 2012 US, which emits
  20 of GHGs, is not a party to the KP (though is
  a party to the UNFCCC)

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What legal form?

• Legally binding instrument to supplement
  Convention and KP
• Legally binding instrument replacing KP
• Single or set of COP decisions further
  implementing the Convention
• Ministerial declaration contained elements of
  political agreement with legal form to be agreed
  in 2010 or beyond
• Any combination of the above (though any option
  other than amendment of Kyoto would require
  amendment of its annex B setting new, post 2012,
  targets for industrialised countries at least)

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Elements of a successful outcome

• Legally binding outcome
• Engages all developed countries
• Engages developing countries (especially those
  contributing significant GHG emissions)
• Level of ambition tied to stabilization of GHG
  the IPCC considers necessary (though level
  ultimately a political choice)
• Necessary means of implementation (technology,
  finance, capacity, and market-based instruments)
  for mitigation and adaptation
• Simplifies the existing legal and institutional
  ecosystem rather than adding to complexity
• (Rajamani, 2009)

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2. Carbon Capture and Storage

• Perceived obstacle regarding geological
  sequestration of CO2
• Is the geological storage/disposal of CO2
  prohibited by the terms of the relevant maritime
  conventions including 1982 UNCLOS, the 1972
  London (Dumping) Convention and 1996 Protocol, or
  regional arrangements such as the 1992 OSPAR
  Convention?
• UNCLOS provides the general jurisdictional
  framework and general obligation to protect and
  preserve the marine environment (art. 192) from
  acidification

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London Protocol amendment

• 1996 London Protocol (in force 24 March 2006)
  defines dumping to include the deliberate
  disposal or storage of wastes and other matter
  (Art 1(4)) general approach of prohibiting
  dumping unless permitted, with mandatory
  application of the precautionary principle (Art
  3(1)) .
• Amendment adopted permitting CCS from 10 February
  2007 with carbon dioxide streams from carbon
  dioxide capture processes for sequestration.
• Such streams may only be considered for dumping
  if
• Disposal is in a sub-seabed geological formation
• They consist overwhelmingly of carbon dioxide
  (may also incidental substances from the source
  material and the CCS process used)
• No wastes or other matter are added for the
  purpose of disposal
• N.B. By implication, disposal of CO2 in the
  water column is prohibited

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1992 OSPAR Convention amendment

• Regional framework for North Sea and Northeast
  Atlantic
• Pilot CCS projects including on Norwegian CS
  (Sleipner)
• Two decisions (2007/1 and 2007/2) adopted in June
  2007, with effect from 15 January 2008.
• Express prohibition on the placement (including
  disposal) of CO2 streams in the water column or
  on the seabed because, as preamble (2007/1)
  indicates, not a sustainable option because it
  is likely to result in harm to living resources
  and marine ecosystems and is thus neither a
  viable solution with regard to mitigating climate
  change nor compatible with the aims of the
  Convention.
• Decision 2007/2 provides the legal framework for
  the storage of CO2 streams in sub-soil geological
  formations, the purpose of which is to ensure
  permanent containment with no significant adverse
  consequences for the marine environment, human
  health and other legitimate uses of the marine
  area (para 2.1)

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OSPAR amendment contd

• Subject to permitting or approvals processes by
  the competent authorities including
• Description of operation
• Planned type and amounts of CO2 and incidential
  substances
• Location of injection facility
• Characteristics of the geological formation
• Methods of transport of the CO2 stream
• Risk management plan including monitoring and
  reporting requirements, mitigation and
  remediation options, and a site closure plan with
  same, with monitoring to continue until there is
  confirmation that the probability of any future
  adverse environmental effects has been reduced to
  an insignificant level

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3. Geoengineering the Climate?

• Sept 2009 Royal Society report Geoengineering
  the climate science, governance and uncertainty
  concludes that the safest and most predictable
  method of moderating climate change is to take
  early and effective action to reduction emissions
  of greenhouse gases.
• It also acknowledges that geoengineering methods
  - CO2 reduction (CRM) and solar radiation methods
  (SRM) could be useful to support other efforts
  to mitigate anthropogenic climate change

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Ocean Iron Fertilization London Convention and
Protocol

• the question of control over geoengineering
  research and experimentation has already arisen
• In 2008 the parties to the global 1972 LC, as
  amended by the 1996 Protocol, adopted a
  resolution agreeing that ocean fertilization is
  governed by the treaty but that legitimate
  scientific research is exempted from its
  definition of dumping
• The assessment framework to be developed by the
  Scientific Groups under the 1972 London
  Convention and Protocol will provide the
  parameters for assessing whether a proposed ocean
  fertilisation activity is legitimate scientific
  research consistent with the aims of the
  Convention

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Ocean Fertilization Global contd

• Until this guidance is available, Contracting
  Parties are to use the utmost caution and the
  best available guidance in evaluating scientific
  research proposals to ensure protection of the
  marine environment consistent with the Convention
  and Protocol (Resolution LC-LP.1 (2008)
  paras.4-7).
• The best available guidance includes previous
  agreements of the parties, certain annexes of the
  Convention and Protocols, previous work by the
  Scientific Groups (including the Working Group on
  Ocean Fertilization), and existing generic waste
  assessment guidance.
• One criterion might be contribution to scientific
  knowledge and the likelihood of the activity
  achieving its stated purpose (though where the
  purpose is to mitigate climate change, this goes
  beyond the LC and may involve cooperation with
  other fora, eg the UNFCCC).

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Ocean Fe Fertilization and the Biodiversity
Convention (CBD)

• The parties to the 1992 CBD debated adopting a
  moratorium on all ocean fertilization activities
  (a proposal included in bracketed text in SBTTA
  Decision XIII/6 and supported, inter alia, by the
  EU, Norway, Venezuela and the Philippines) but
  ultimately followed the LC approach (but not its
  language).
• States are urged to ensure that ocean
  fertilization activities do not take place until
  there is an adequate scientific basis on which to
  justify such activities and a global transparent
  and effective control and regulatory mechanism is
  in place for these activities. An exception is
  made for small-scale research studies within
  coastal waters for scientific purposes, without
  generation or selling of carbon offsets or for
  any other commercial purposes (Conference of the
  Parties (COP) 9 Decision IX/16 2008).

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Ocean Fe Fertilization and CBD contd

• Given that coastal waters is ambiguous, and
  that small-scale near-shore studies are
  meaningless for ocean fertilization field trials,
  the negative impact this step could have on
  scientific research led to a swift response by
  the Intergovernmental Oceanographic Commissions
  Ad Hoc Consultative Group on Ocean Fertilization
  drawing attention both to the need for
  clarification of the language of the COP decision
  and challenging the scientific assumptions
  underpinning it.
• The CBD debates encapsulate the diverse public
  perceptions of this geoengineering technology,
  with concerns expressed about potential
  environmental impact, premature commercialisation
  of the activity in the face of so many scientific
  uncertainties, and that it offers a false
  solution to climate change.

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Geoengineering and the FCCC/KP

• For all geoengineering proposals, some of the
  provisions of the 1992 UNFCCC and 1997 KP will
  apply, such as the general obligation to use
  appropriate methods, e.g. impact assessment with
  a view to minimising adverse effects onthe
  quality of the environment of projects or
  measures undertaken to mitigate or adapt to
  climate change.
• The UNFCCC and KP create a significant
  institutional structure for international
  governance of the climate regime, and the climate
  change secretariat already cooperates with the
  other two Rio Conventions (the CBD and UNCCD) on
  mutually supportive activities, suggesting a
  possible role for fostering linkages and
  developing common approaches.
• A question for all carbon capture techniques is
  whether they will be eligible for certification
  under the KP (or its successor instrument) under
  the clean development mechanism (CDM) or joint
  implementation (JI) though questions of such
  eligibility are only one element in wider
  decision-making processes regarding whether the
  technology should proceed.

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Geoengineering and the CDM

• Discussion by the CDM Executive Board of CCS and
  its eligibility under the CDM has been ongoing
  since 2005 and illustrates the methodological
  difficulties related to project boundaries,
  monitoring and remediation.
• These difficulties are magnified for larger and
  more diffuse techniques such as ocean
  fertilization, where problems of clear state
  ownership and the identification of host and
  acquiring States loom large
• Nor is there a general accounting for GHG stored
  in the oceans, which falls outside the present
  IPCC reporting guidelines. Additionally, project
  boundaries would render the key requirements of
  periodic monitoring and verification difficult to
  ensure.