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Climate



26/08/2019

Taxing and Managing Meat: An Integrated Approach to Tackle Climate Change

By admin

By Maria Alejandra Serra Barney, Nathalia Cortez Gomez, Lorena Perez Roa and Melanie Auvray (Alumni Tilburg Law School)

taxing meat report

A few months ago, a team of four master students from Tilburg University participated in the Geneva Challenge 2018 on Climate Change. Our proposal aimed to tackle greenhouse gas emissions of the livestock industry, by creating a Global Tax Meat Scheme, that would allow countries from all over the world to have a profound transition to a cleaner industry while achieving a change on consumer’s behavior.

 

Climate Change is one of the biggest challenges of our generation. Action and cooperation from every country is needed, as well as from every sector and industry. While several actions to mitigate Climate Change have been developed in the most acknowledged pollutant industries, such as transportation, mining, or product manufacturing, the severe environmental impacts of the livestock industry have managed to remain in the shadows. Livestock industry alone is responsible for 14.5% of the annual worldwide Greenhouse Gas (GHG) emissions of Carbon Dioxide (CO2), Methane (CH4) and Nitrogen Dioxide (N2O), exceeding the emissions produced by the entire global transportation sector[1]. Nevertheless, a survey developed by Chatham House along with the Glasgow University in 2014[2], revealed that livestock sector is not recognized by people as a contributor to climate change[3]. As a matter of fact, one-quarter of people considered that ‘meat and dairy production contributes either little or nothing to climate change’[4].

 

Accordingly, and contrary to popular belief, the livestock industry is responsible for a large amount of the global Greenhouse Gas (GHG) emissions, which are generated through animal physiology (enteric fermentation, respiration and excretions), animal housing, feed crops, manure handling, processing of livestock products and bi-products, transportation and land use for livestock production (deforestation, desertification)[5]. This should not come as a surprise, considering its strong place in the economies of both developed and developing countries, as the main supplier of global calories, proteins, and essential micronutrients[6]. Likewise, livestock production is a good alternative in some developing countries that have difficulty growing crops and need to ensure the nutrition of their population[7], however relying almost exclusively in livestock products entails risks for human health and food security itself. The consumption of meat in developed countries is five times higher than in the developing countries[8], which increases the risk of colorectal cancer, pancreatic cancer and prostate cancer[9]. According to the World Health Organization (WHO), red meat (beef, veal, pork, lamb, mutton, horse and goat) has been classified as Group 2A: “probably carcinogenic to humans”; and processed meat (‘hot dogs’, ham, sausages, corned beef, beef jerky, canned meat and meat-based preparations and sauces) as Group 1: “carcinogenic to humans”[10], just as tobacco smoking and asbestos. This is why the WHO stresses the importance of the reduction on consumption of processed meat[11], which makes the leading role that meat products have in food security nowadays questionable.

 

In addition, the increase in the global temperature will have a direct impact on the health and life of livestock animals[12]. According to experts, the rise in the temperature will enable the acceleration in the growth of pathogens and parasites[13], which might generate shifts in disease spreading, outbreaks of severe diseases or even introduce new ones[14], increasing the risk of morbidity and death of livestock. Therefore, relying on livestock products to guarantee the food security in the world might lead to a food crisis in the future.

 

For environmental, health and food security reasons, livestock production should be limited and regulated. However, when it comes to international environmental treaties and agreements, even though there is a commitment and a mandate for countries to reduce GHG emissions, livestock industry is not really targeted, even though the projections indicate that animal product consumption will continue to increase[15]. Indeed, UNFCCC and Kyoto Protocol only formulate a fragmented set of rules’[16] and the Paris Agreement gives general recommendations that prioritize food security rather than targeting livestock industry. Regarding the health and food security issues related to the livestock industry, some countries are already using taxation to encourage healthy eating habits on its population, for instance by raising the prices of sugary soft drinks or sweets. Nevertheless, this approach has never been used on livestock products that, as it was explained before, are known to cause several health issues when consumed in excess.

 

In this sense, a study on the results on taxing beef, pork and chicken[17] in Denmark, succeeded to prove that a possible tax on meat would reduce GHG emissions between 10.4% and 19.4% for an average household[18]. However, we believe that these figures are not enough. Our proposal for the Geneva Challenge 2018 consisted in the establishment of a Global Meat Tax Scheme, which would consider the application of taxes in developed countries and levied on the consumers in order to directly induce changes in meat consumption. It should be collected by national authorities which must ensure that tax revenues are given back to specific actors so they can invest in the development of eco-efficient technologies to support technological improvements of the livestock industry management, or to invest in high protein food alternatives[19]. Likewise, governments shall cooperate with international organizations in order to promote and support the transition into cleaner technology and farming processes in developing countries .

To make sure that tax revenue funds are safe and utilized solely for the intended purposes, we suggest the utilization of blockchain technology, which would enhance the security of the scheme, guaranteeing the transparency of all transactions being made, and as a consequence promoting trust among governmental entities and individuals. Likewise, States would be under the monitoring and supervision of an international authority, which would assess the compliance of the States and the adequate utilization of the funds.

 

We invite you to read our full project report for further explanations on this “Global Meat Tax Scheme” and its complementary adaptation and mitigation measures which would allow countries from all over the world to have a profound transition of the industry to cleaner livestock management while achieving a change on consumer’s behavior.

 


[1] M. Rojas-Downing et al, Climate Change and livestock: Impacts, adaptation and mitigation. (Climate Risk Management, 2017) 152

[2] Rob Bailey, Antony Froggatt and Laura Wellesley, Livestock – Climate Change’s Forgotten Sector Global Public Opinion on Meat and Dairy Consumption (2014) <https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20141203LivestockClimateChangeForgottenSectorBaileyFroggattWellesleyFinal.pdf > accessed  16 April 2018

[3] Rob Bailey, Antony Froggatt and Laura Wellesley, Livestock – Climate Change’s Forgotten Sector Global Public Opinion on Meat and Dairy Consumption (2014) <https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20141203LivestockClimateChangeForgottenSectorBaileyFroggattWellesleyFinal.pdf > accessed  16 April 2018

[4] Rob Bailey, Antony Froggatt and Laura Wellesley, Livestock – Climate Change’s Forgotten Sector Global Public Opinion on Meat and Dairy Consumption (2014) <https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20141203LivestockClimateChangeForgottenSectorBaileyFroggattWellesleyFinal.pdf > accessed  16 April 2018

[5] M. Rojas-Downing et al, Climate Change and livestock: Impacts, adaptation and mitigation. (Climate Risk Management, 2017) 151.

[6] Philip Thornton, Mario Herrero and Polly Ericksen, Livestock and climate change (2011) Livestock Exchange Issue Brief 3

[7] Ibid

[8] Ibid

[9] World Health Organization, Q&A on the carcinogenicity of the consumption of red meat and processed meat (2015) <http://www.who.int/features/qa/cancer-red-meat/en/> accessed 22 April 2018

[10] Ibid

[11] Ibid. Cf: “The IARC Working Group considered more than 800 different studies on cancer in humans (some studies provided data on both types of meat; in total more than 700 epidemiological studies provided data on red meat and more than 400 epidemiological studies provided data on processed meat)”

[12] Alessandro, Nardone et al., Effect of climate changes on animal production and sustainability of livestock system (2010) LIVEST SCI. 57, 69 <10.1016/j.livsci.2010.02.011> Accessed 15 April 2018.

[13] C.D. Harvell et al., Climate warming and disease risks for terrestrial and marine biota (2002) Science 296 <https://people.ucsc.edu/~cwilmers/ENVS220/Harvell%20et%20al%202002%20Science.pdf> Accessed on 23 April 2018

[14] P.K. Thornton et al., The impacts of climate change on livestock and livestock systems in developing countries: A review of what we know and what we need to know (2009) ILRI <https://www.sciencedirect.com/science/article/pii/S0308521X09000584> Accessed on 25 April 2018

[15]  European Parliament, What if animal farming were not so bad for the environment (2017) <http://www.europarl.europa.eu/RegData/etudes/ATAG/2017/598619/EPRS_ATA(2017)598619_EN.pdf> accessed on 05 May 2018

[16] Bob O’Sullivan and Charlotte Streck, Forestry and Agriculture under the UNFCCC: A Jigsaw Waiting to be Assembled? (The Oxford Handbook of International Climate Change Law, 2016)

[17] Sarah Sall, Ing-Marie Gren, Effects of an environmental tax on meat and dairy consumption in Sweden (2015) Food Policy 41

[18] Louise Edjabou, S. Smed, The effect of using consumption taxes on foods to promote climate friendly diets and the case of Denmark (2013)  Food Policy 39, 84-96.

[19] Kelechi E Nnoaham et al, Modelling income group differences in the health and economic impacts of targeted food taxes and subsidies (2009) OJLS


02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

By Jonathan Verschuuren (TLS)

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).[8]

Ecosystem restoration and connectivity
measure aim
  • Replacing artificial, fixed banks by more natural banks and borders
  • Creating sandy islands in the main water body of the lake
  • Constructing a fish migration river
  • Opening up old creeks and streams
  • Gradual transition from water to land
  • Increase breeding space for birds & help sediment settle down thus improving water quality for (shell)fish
  • Enable migratory fish to bypass artificial dams
  • Restore natural connection between land and water
Adjusted management
measure aim
  • Targeted reed management (keep young reed plants in some areas, and perennial reed in others)
  • Introducing permits for commercial fishing with conditions
  • Banning certain recreational activities (boasting, kite surfing) in some areas
  • Concluding voluntary agreements with recreational sector
  • Adjust water level management to more natural levels is preferred; however, this measure is postponed to later, to be aligned with water management plans under climate change
  • Enable expansion of various species of reed birds and reed mammals
  • Avoid water birds getting caught in nets and other fishing gear
  • Reduce disturbance of protected birds
  • Inform and educate the public so as to achieve less impact on breeding birds
  • Establish natural water levels, plan for climate change related variations of water levels

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.



[1] F. Palmboom, ‘Introduction. Lake IJssel – The IJsselmeer’ in: A.L. Nillesen et al. (eds.), Delta Interventions: Design and Engineering in Urban Water Landscapes (Delft University Publishers 2016) 52-53.

[2] Eemmeer, Gooimeer, IJsselmeer, Ketelmeer, Vossemeer, Markermeer, IJmeer, Veluwerandmeren and Zwarte Meer. Officially, these are all considered separate lakes, with the IJsselmeer being the largest. In this blogpost however, I treat them together under the overall name of Lake IJssel as they are largely (although not entirely) interconnected and all protected under the same legal regimes.

[3] See for example this document (in Dutch) that discusses the conservation status of a very long list of habitat types and species that require protection under EU law in part of the Lake IJssel area,

[4] R. Loeve et al., Klimaatverandering en waterkwaliteit (Future Water 2006), available online; Deltares, Mogelijke gevolgen van versnelde zeespiegelstijging voor het Deltaprogramma. Een verkenning (Deltares 2018), available online. See also the government website on climate change impacts for the Lake IJssel area.

[5] J. Verschuuren, ‘The Case of Transboundary Wetlands Under the Ramsar Convention: Keep the Lawyers Out!’ (2007/2008) 19(1) Colorado Journal of International Environmental Law and Policy 49-127.

[6] See the special website on this policy.

[7] Ministry of Infrastructure and Environment, Natura 2000 Beheersplan IJsselmeergebied 2017-2023. Publiekssamenvatting (Rijkswaterstaat 2017) 7-8.

[8] Taken from a range of documents on the management of the Natura 2000 sites of Lake IJssel,all of which are available here, and here.

[9] A. Remmelzwaal et al., Preverkenning IJsselmeergebied (Ministry of Infrastructure and water 2017).

[10] See extensively, Wil Zonneveld, Governing a Complex Delta, in Han Meyer, Steffen Nijhuis, Inge Bobbink (eds.), Delta Urbanism: The Netherlands (Routledge 2017), chapter 5.


09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren (TLS)

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

 

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

 

 

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.


24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

By Jonathan Verschuuren (TLS)

In the Netherlands, no cases have been lodged against emitters of GHGs yet. This is somewhat surprising, given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands and given the fact that around 60% of Dutch land is prone to flooding, either by rivers or by the sea. An extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.[1] It is estimated that the Dutch government needs to spend 26 billion euros for coastal and river adaptation measures alone.[2]

(Photo: Flickr user Shell)

(Photo: Flickr user Shell)

Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.[3] There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.[4] The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.[5] Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later.

The flood of cases against RDS and several other major oil companies in the United States may well be the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.[6] In January 2018, New York City filed another lawsuit in a federal court, again against RDS as well as BP, Chevron, ConocoPhillips and Exxon Mobil, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.[7]

The complaint in the latter case is a very interesting document that in very strong and persuasive words argues that these companies’ actions constitute an unlawful public and private nuisance and an illegal trespass upon New York City property because they produced, marketed, and sold fossil fuels ‘for decades and at ever more dangerous levels while knowing of the harm that was substantially certain’ and that lead to ‘damage from climate change, including inundation, erosion, and regular tidal flooding’ of the city’s property and to ‘imminent threats to its property, its infrastructure, and the health and safety of its residents’.

As stated above, the case is entirely focused on adaptation costs. The complaint refers to a number of actions already taken on which billions of dollars have been spent:

-        Protect vulnerable residents during increasingly severe heat waves (which already kill more New Yorkers each year than all other natural disasters combined)

-        Reinforce NYC coastline and elevate its infrastructure within the floodplain.

In addition, it looks ahead to future adaptation measures that need to be taken:

‘the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline (…) [such as] enlarge existing storm and wastewater storage facilities and install additional facilities and associated pumping facilities and infrastructure to prevent flooding in low-lying areas that are vulnerable to rising seas and increasingly severe downpours.’ According to the complaint, ‘these are long-term design and construction projects that must be built to last for decades, often up to fifty years or more. The City must take these actions as soon as possible in order to protect public health and safety and City property and infrastructure. The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.’

What is particularly interesting in this case, is the emphasis that is placed on the special position that these big oil companies have, not just because of their large share in global fossil fuel production, but also because of their role in misinforming the public. The complaint devotes several pages of text to the campaign orchestrated by the oil companies to cast doubt on climate science and gives detailed examples of covert attempts to mislead the public. The complaint concludes:

‘Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their in-house scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry. In this coordinated effort to discredit the science, which began in earnest during the 1990s and has continued in a subtler form even in recent years, Defendants and their agents and advocates have made the alleged “uncertainty” of climate science their constantly-repeated mantra. The purpose of this campaign of deception and denial was to increase sales and protect market share.’

In my view, these cases against ‘big oil’ in the US may very well pave the way for a global flood of litigation against oil companies. The recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.[8]

Another interesting recent development is the growing pressure on investment banks and pension funds to divest in fossil fuel related projects.

In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’[9] The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be admissible by any National Contact Point for the OECD Guidelines.[10] Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

 

[1] Jonathan Verschuuren, Jan McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1:2 Transnational Environmental Law 355-379.

[2] https://deltaprogramma2016.deltacommissaris.nl/viewer/paragraph/1/deltaprogramma-/chapter/het-deltafonds-financieel-fundament-onder-het-deltaprogramma/paragraph/de-financiele-opgaven-van-het-deltaprogramma

[3] Paul Griffin, The Carbon Majors Database. CDP Carbon Majors Report 2017 (CDP 2017), 14.

[4] On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website.

[5] See in more detail, Nicola Jägers, Katinka Jesse, Jonathan Verschuuren, The Future of Corporate Liability for Extraterritorial Human Rights Abuses: The Dutch Case against Shell, (2014) American Journal of International Law Unbound “Agora: Reflections on Kiobel”, e-36/e-41.

[6] Michael Burger, Local Governments in California File Common Law Claims Against Largest Fossil Fuel Companies, blogpost Sabin Center for Climate Law, 18 July 2017, http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/, and Jessica Wentz, Santa Cruz Joins Other Municipalities Suing Fossil Fuel Companies for Damages Caused by Climate Change, blogpost Sabin Center for Climate Law, 8 January 2018, http://blogs.law.columbia.edu/climatechange/2018/01/08/santa-cruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climate-change/.

[7] Nicholas Kusnetz, New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest, Inside Climate News 11 January 2018, https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio . The full text of the complaint is available through this blogpost.

[8] Expert Group on Global Climate Change, Principles on Climate Obligations of Enterprises (Eleven International Publishing 2017).

[9] The full text of the complaint (in English) is available online through https://www.oxfamnovib.nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen.

[10] According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klacht-tegen-ing-in-behandeling-genomen.

 

 

 

 

 

Category: Adaptation, Climate

13/06/2017

Enhancing Soil Carbon Sequestration and Adaptation in Europe’s Agricultural Sector: Towards a New Approach under CAP and ETS

By Jonathan Verschuuren (TLS)

Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 Gt of carbon, four times more than vegetation.[1] Through soil degradation, much of natural soil carbon stocks has been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils is 50 to 60% of the historical carbon loss of 42 to 78 Gt of carbon.[2] With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.[3] Soil erosion control and soil restoration has an estimated carbon sequestration capacity of between 5 and 15% of global emissions.[4] After peaking, a new equilibrium will be reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.[5]

(Photo: Flickr user Kai C. Schwarzer)

(Photo: Flickr user Kai C. Schwarzer)

Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increases the ability of soils to hold moisture and to better withstand wind and water erosion, enriches ecosystem biodiversity, helps cropping systems to better withstand droughts and floods, increases fertility for crops through restoring healthy soil microbial communities, and increases livestock efficiency (sustainable intensification).[6] Other potential positive side-effects of practices aimed at soil carbon sequestration are various environmental benefits, such as avoided use of chemical fertilizers and pesticides and improved biodiversity and wildlife.[7]

Examples of soil carbon sequestration practices relevant for Europe are the application of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.

Research shows that strong top-down policies that are linked with, and fed by, bottom-up initiatives, are needed to achieve the required level of adaptation in the agricultural sector.[8] Holistic strategies have to be adopted that go beyond technical approaches aimed at stimulating autonomous farm-level risk reduction. So far, the EU did not focus much attention on agriculture in its climate change adaptation policy. The EU’s Adaptation Strategy refers to the Common Agricultural Policy (CAP) in which adaptation measures have been integrated to a limited extent.[9] An assessment of the soil carbon related adaptation potential of the current CAP, however, shows that this potential is limited. Soil carbon projects can receive funding both under the green direct payments, and under the rural development policy. Whether such projects are actually carried out with CAP funding depends entirely on initiatives by farmers (for green direct payments), or by Member States (for the rural development policy). Unfortunately, there are not many indications that Member States radically focus their Rural Development Programmes (RDP) on climate change, perhaps with the exception of Ireland. The CAP also has several inherent constraints as far as soil carbon sequestration and associated adaptation are concerned, mostly due to the fact that CAP is not linked to the EU climate policy but serves as a separate instrument with a much wider policy goal than combatting climate change. The accounting rules, for example, do not require farm level quantification of the amount of carbon sequestered linked to the payment, so it cannot be assessed whether and in how far an increase in soil carbon levels is real, additional and verifiable. Integrating the CAP more into the EU’s climate policy requires rules to be set in place to assure a reliable measuring of the carbon sequestered. Payments, to give another example, are based on the amount of hectares per year of measures under the RDP, not on the amount of CO2 sequestered. This is a consequence of the provision that payments can only cover additional costs and income forgone resulting from the commitments made.[10] Such indirect payments, therefore, do not stimulate farmers to sequester as much carbon as possible. A third example of the CAP’s shortcomings with regard to soil carbon sequestration is that projects financed under the CAP are characterized by a relatively short lifespan, 1-5 years for green direct payments, and 5-7 years for projects under a RDP. Under a climate policy, such a lifespan is almost futile, as combatting climate change requires measures that cover decades, if not the entire 21st century. That is why in Australia, carbon sequestration projects are required to run for twenty five or even a hundred years (see blog posts on Australia’s carbon farming legislation part 1 and part 2).

Towards an alternative approach: agriculture in the EU ETS

The conclusion that the current EU policy is completely inadequate to stimulate large scale soil carbon sequestration on agricultural land seems inevitable, also when taking into account the broader climate change mitigation policy. The recently presented proposal for a European Regulation on the inclusion of greenhouse gas emissions and removals from land use and forestry into the EU’s 2030 climate framework (LULUCF Regulation) is a good first, yet inadequate, step towards including agriculture’s emissions and sequestration potential into the EU’s climate policy (see for broader assessment of the climate policy instruments, the paper). That is why an alternative approach needs to be developed. A further stimulus to the adoption of soil carbon projects that currently is not being discussed but that needs to be investigated at European level soon is the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia, and more recently also China.[11] These states show that it is possible to stimulate soil carbon sequestration (and other climate smart agriculture practices and technologies) through the ETS, provided an elaborate regulatory regime has been put in place to ensure integrity. When in place, sectors covered by the ETS will be allowed to finance sequestration projects on farm land, thus paying farmers for their efforts.

The recent report of the Agricultural Markets Task Force, a European Commission expert group, also proposes to incentivise to farm carbon in addition to crops. The Task force, however, proposes to do this through redirecting funds under the CAP after 2020. It is debatable, though, whether this will be a successful strategy given the inherent shortcomings mentioned above. Some of the current constraints can perhaps be repaired, such as the short commitment period, or the provision that payments can only cover additional costs and income forgone. It is highly unlikely, though, that the CAP budget will be big enough to cover an EU wide adoption of carbon farming practices. An evaluation of the Australian carbon farming legislation indicated that government funds will never suffice to roll out an incentive mechanism across all farms in the country and that private funds need to come in, either through a carbon tax or an ETS.[12] The latter seems very suitable for the EU with its well-developed ETS that, hopefully, will pick up speed again after the structural reform takes effect in the fourth trading phase, which runs from 2021 until 2030. Regulation aimed at establishing a finance flow from large industrial emitters to the farming sector, with its capacity to sequester large quantities of carbon on farm land, seems a promising alternative, which is completely in line with the polluter pays principle as laid down in Article 191(2) of the Treaty on the Functioning of the EU.

 

[1] Daniel Kane, Carbon Sequestration Potential on Agricultural Lands: a Review of current Science and Available Practices (Breakthrough Strategies & Solutions, Takoma Park, Md 2015).

[2] Emanuele Lugato et al., ‘Potential carbon sequestration of European arable soils estimated by modelling a comprehensive set of management practices’, (2015) 20 Global Change Biology 3557.

[3] Pete Smith, ‘Agricultural Greenhouse Gas Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the last 20 Years?’ (2012) 18 Global Change Biology 35.

[4] M.G. Rivera-Ferre et al., Re-framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options, (2016) 7 WIREs Climate Change 869.

[5] Ibid.

[6] P. Smith et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in: O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 811, 846 and 847; J.R. Porter et al., ‘Food security and food production systems’ in: C.B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 485, 515 and 518.

[7] Annette Freibauer et al., ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1.

[8] L. Bizikova et al., Climate Change Adaptation Planning in Agriculture: Processes, Experiences and Lessons Learned from Early Adapters, (2014) 19 Mitigation and Adaptation Strategies for Global Change 411.

[9] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Strategy on Adaptation to Climate Change, COM (2013) 0216 final, 8.

[10] Art. 28(6) Regulation (EU) No 1305/2013.

[11] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7:1 Climate Law 1; Dong Sun et al., Carbon Markets in China: Development and Challenges, (2016) 52:6 Emerging Markets Finance and Trade 1361.

[12] Verschuuren 2017.

 

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 This blog is a summary of a paper accepted for presentation at the 3rd European Climate Change Adaptation Conference ‘Our Climate Ready Future’, Glasgow, 5th-9th June 2017 (ECCA2017). My project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU

 

 


25/02/2017

Climate Change Impacts on Agriculture and Food Security: What Role for Disaster Law?

By Jonathan Verschuuren (TLS)

Agriculture depends on a stable climate. Crops need a fertile soil, sufficient water and temperatures that remain within a certain (plant specific) bandwidth, livestock needs healthy grazing land, sufficient water and livable temperatures. The climate needs to be predictable, so that farmers can plan their activities with the aim to secure the best possible harvest. Such stable conditions only occurred after the previous major climate change that took place on Earth and which marked the end of the last ice age, around 12,000 years ago. Around that time, man settled down and started to grow his own food through agriculture.

Given the dependence of agriculture on weather and climate, it does not come as a surprise that the agricultural sector is and will be hit hard by climate change impacts. The impacts are diverse and potentially disastrous for global food security. The latest IPCC report on the impacts on agriculture and food security gives a chilling image of what is expected to happen and, in fact, is already happening across the world.[1] Water shortages in droughts and heat waves have a negative impact on crops as well as livestock. A surplus of water with excessive precipitation, floods and inundation, increased and changing occurrence of pests, weeds and diseases, are but a few examples of the other impacts of climate change that negatively affect agriculture. Extreme weather events, generally, hit rural areas hard with a profound negative impact on rural communities and food production.

Against this background of increasing climate change impacts on agriculture, both through slow- and sudden-onset disasters, it is particularly worrying that food demand is and will continue to grow over the next few decades until 2050. It is expected that increasing climate change impacts on agriculture and rising demand will lead to an increase of food prices across the globe. According to the IPCC, ‘it is very likely that changes in temperature and precipitation (…) will lead to increased food prices by 2050, with estimated increases ranging from 3 to 84%.[2] A World Bank report adds that losses in the agricultural sector and spikes in food prices can push vulnerable consumers into poverty, as poor people spend a large part of their budget on food.[3] The 2008 food spike caused around 100 million people to fall into poverty, and the 2010–2011 food price spike has been estimated to have pushed 44 million people below the basic needs poverty line across 28 countries.[4] It can, therefore, be expected that there is a substantial risk of increasing famine in developing countries.

Developed countries, however, are not safe either. Consumers in developed countries are not only expected to face drastic price increases, but food safety issues as well.[5] Rural communities in developed countries are particularly vulnerable for climate change impacts, for several reasons, such as the substantially higher average age compared to urban areas. The IPCC refers to the social impact of the prolonged drought in Australia during the early 2000s which led to ‘farm closures, increased poverty, increased off-farm work, and, hence, involuntary separation of families, increased social isolation, rising stress and associated health impacts, including suicide (especially of male farmers), accelerated rural depopulation, and closure of key services’.[6]

Climate disaster law

Disaster law is the field of law that aims to respond to disasters, to compensate for the losses that occurred in a disaster and to facilitate recovery and rebuilding, as well as to mitigate the possible impact of future disasters. Climate disaster law is the rapidly developing new body of law which responds specifically to climate disasters. So far, however, attention for agriculture and food security has been fairly limited and it is clear that in this area, much needs to be done to prepare the world for increasing climate disasters hitting agriculture and food security.

Disaster mitigation in agriculture

The disaster mitigation phase, usually, is considered to be the most important phase of the disaster cycle (mitigation-response-rebuilding), not just because of the simple fact that prevention is better than curing, but also because of the nature of climate disasters. Adler rightfully observes that ‘drought and other disaster response policies that might be appropriate for occasional and difficult-to-foresee events may no longer be appropriate for conditions that will now occur with increasing frequency due to climate disruption’.[7]

Disaster mitigation for agriculture starts with the adoption of climate smart practices and technologies. Most countries, around the globe, do not have comprehensive and effective legal instruments in place that stimulate farmers to adopt climate smart practices and technologies.[8] To make the agricultural sector more resilient to climate change, it is essential that law and policymakers around the world rapidly start developing policies and laws so that climate-smart agricultural practices are commonplace soon. Financial instruments, such as subsidies or offset mechanisms under carbon pricing programmes can be used to achieve this goal. In addition, well-functioning early warning systems should be operational to help farmers to manage the hazards and avoid these turning into disasters. International collaboration and fundraising seems required to speed up the development and implementation of early warning systems for agricultural climate disasters. The same is true for climate and weather information and forecasts. These do exist, but have to be further developed to make the forecasts more useful for farmers.

Disaster response in agriculture

According to the FAO, between 2003 and 2013, about 3.4 percent of all humanitarian assistance was directed to the agriculture sector, with an average of around 374 million USD annually. The average annual crop and livestock production losses in developing countries, however, were much larger: an analysis of 140 disasters triggered by natural hazards found annual costs of crop and livestock losses to be 7 billion USD per year over the same period. With the expected increase of the number and size of disasters under climate change over the next few decades, much remains to be done to improve our ability to effectively respond to climate disasters, especially in the area of agriculture and food security. The current instrument of the Food Assistance Convention, that lays down a set of principles and best practices for effective and efficient food assistance for the most vulnerable people needs to be expanded to a full and comprehensive legal framework on international climate disaster response, so that the response efforts are well coordinated and aligned and so that domestic emergency managers are fully engaged and empowered.

Rebuilding: getting the farmer back into business asap

After a climate disaster, food production needs to be restored as soon as possible. Financial aid is usually needed so that farmers can clean up and prepare the land for agricultural activities, buy new seeds, new machines, new livestock etc. At the international level, organizations such as the World Bank, the International Fund for Agricultural Development, and the Special Climate Change Fund under the UNFCCC, put much effort into providing such financial aid. It is now well understood that farmers and communities should undertake investments with long term benefits, so that the next climate disaster has less impact. The compensation and rebuilding phase, therefore, is closely linked to the disaster mitigation phase.

A range of methods is explored for their suitability to compensate for the loss caused by climate change. Although private insurance has its limitations in the case of climate disasters, new insurance products are being developed, such as the ‘Broad Weather Insurance Policy’ which was developed by agricultural insurance companies together with agribusiness organisations and the government in the Netherlands to offer farmers insurance against climate change related crop damage.[9] This policy covers financial loss caused by natural disasters, such as extreme rainfall, extreme drought, erosion, severe windstorms, hailstorms and fires (caused by lightning). This insurance does not cover all damages, but instead requires farmers to bear 30% of the loss. The government has a subsidy scheme in place to provide financial assistance to individual farmers to pay for the premium. Reinsurance firms are even starting to operate in developing countries in Africa, where micro-insurance policies have been developed for farmers to cover for loss of crops due to drought, storms, pests, and diseases.[10] Private markets alone cannot provide the funding that is needed to develop and operate insurance products for farmers to protect them from financial losses caused by climate disasters. Some form of government intervention and cooperation between insurers, banks, governments and NGOs is essential to make climate disaster insurance for farmers a success. In order to avoid that farmers keep relying on government aid and insurance claims, and do not make the necessary changes to become more resilient to climate change, it is important that legal instruments in the area of disaster compensation reward the adaptive farmer.

 

[1] J.R. Porter et al., ‘Food Security and Food Production Systems’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014), 485-533. The IPCC is currently preparing a special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems. This report is due to come out in 2019.

[2] Id. at 512.

[3] S. Hallegatte et al., Shock waves. Managing the impacts of climate change on poverty (Worldbank 2016) at 5.

[4] W.N. Adger et al., Human security in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 763.

[5] M. Miraglia et al., Climate Change and Food Safety: An Emerging Issue with Special Focus on Europe, (2009) 47(5) Food and Chemical Toxicology 1009–21.

[6] A. Reisinger et al., ‘Australasia’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 1398.

[7] Robert W. Adler, Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought, and Agricultural Law, (2012) 64(1) Florida Law Review 201, 265.

[8] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7(1) Climate Law at 6-10.

[9] W.J. Wouter Botzen, Managing Extreme Climate Change Risks through Insurance 57 (2012). For an up-to-date description of the cover of the current policy, see agricultural insurance company ‘AgriVer’ website, http://www.agriver.nl/gewassen-te-velde.html (in Dutch).

[10] The World Bank’s Global Index Insurance Facility, for example, stimulated the emergence of ACRE Africa (Agriculture and Climate Risk Enterprise Ltd.), operating in Kenya, Rwanda and Tanzania, see ACRE’s website http://acreafrica.com.

______________________________

Jonathan Verschuuren is professor of international and European environmental law at Tilburg University, the Netherlands. E-mail: j.m.verschuuren@tilburguniversity.edu. A detailed article on this topic will be published later this year in: Rosemary Lyster and Rob Verchick (eds), Climate Disaster Law: Barriers and Opportunities (Edward Elgar, 2017). This project received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU

Category: Agriculture, Climate

10/11/2016

WTO limitations for domestic climate smart agriculture policies

By Jonathan Verschuuren (TLS)

Achieving the Paris Agreement’s climate goals will require states to start focusing both on reducing emissions from agriculture and on the sequestration potential of agriculture and land use.  The imminent rise in global food demand coupled with the decline in fertile agricultural land caused by climate change will further necessitate the drafting and implementation of effective policies. These policies have to aim for mitigation, adaptation and food security, the three pillars of ‘climate smart agriculture’. Climate smart agriculture is an approach to developing the technical, policy and investment conditions to achieve sustainable agricultural development for food security under climate change (FAO 2013).  Examples of climate smart practices are the introduction of rotational grazing management schemes, crop rotation, minimum tilling, permanent native vegetation on farmland and the use of compost and other soil additives to increase soil carbon levels.  Examples of climate smart technologies are sophisticated, computerized drip-irrigation systems, and methane capture and conversion technologies in animal raising facilities.  A comprehensive regulatory framework to incentivize the agricultural sector to convert from conventional practices to become climate smart is still largely lacking, not just in the EU, but worldwide. Incentives that already are applied on a small scale are subsidies and tradable offsets under a carbon pricing mechanism. It is expected that future policies aimed at advancing the implementation of climate smart practices and technologies in the farming sector will use one of these or both instruments.

WTOBoth are voluntary instruments in the sense that farmers can choose not to apply for a subsidy or participate in an offset scheme, yet both do have an impact on trade because these instruments incentivize certain agricultural practices thus favouring some domestic farmers and their products over foreign farmers and their (imported or exported) products. When drafting a policy aimed at stimulating climate smart agriculture, it is, therefore, important to remain within the legal boundaries set by international trade law. There has been remarkable little attention for these trade law limitations to domestic policies in the area of climate smart agriculture. In Australia, for example, there does not seem to have been any debate on possible WTO requirements for the domestic Australian carbon farming initiative, which is a scheme aimed at stimulating farmers to reduce emissions or increase sequestration through offsets that are bought up by the government in reversed auctions. Academic literature does exist, but mostly focuses on the WTO boundaries for domestic climate law in a broad sense. That literature is rather worrying. Because it takes a broad perspective and deals with all potential instruments that may infringe upon a wide range of WTO instruments, it looks as if the WTO is a huge stumbling block for domestic policies.[1]

In my view, it is more worthwhile to focus on the two most likely instruments. As stated above, policies aimed at stimulating climate smart agriculture are likely to be some sort of government subsidy of a system of offsets from agriculture that are allowed in the carbon market. These instruments primarily have to be assessed against the requirements of two WTO instruments: the Agreement on Agriculture (AoA) and the Agreement on Subsidies and Countervailing Measures (SCM).

Domestic policies aimed at stimulating the adoption of climate smart agricultural practices and technologies are environmental protection programmes that, in principle, are allowed under the so-called ‘Green Box’ of the AoA, provided the support is only given in the start-up phase and is terminated after the benefits from the conversion to climate smart practices, be it from improved productivity, the generation of energy or from the sale of carbon credits on the private carbon market, greatly surpass the costs involved. Incentives that have a positive impact on production, such as for soil carbon projects, and that are not allowed under the AoA’s Green Box, are actionable under the SCM Agreement. It is hard to say in general whether payments to farmers, be it through a subsidy or through the carbon market, are not actionable because they do not cause adverse effects on competing producers in other countries. This very much depends on the individual case.

Several carbon farming methodologies definitely have production-enhancing co-benefits and would, therefore be actionable under the SCM Agreement. Soil sequestration projects, for example, are known to have a tremendous positive impact on the production of crops. Financing such projects could, therefore, be seen as granting an actionable subsidy, as long as they are not covered by the AoA. This means that it is up to the injured WTO member state to prove these subsidies caused serious prejudice to its interests, i.e., that because of the subsidy, it suffers from displaced imports into the market of the subsidizing country, displaced exports to third countries, significant price suppression, or an increase in the world market share by the subsidizing country.  Should a country succeed and subsequent consultations not lead to an agreement, the injured state can take countermeasures.

The accused state could argue that the subsidies are non-actionable because these are meant to promote adaptation of existing facilities to new environmental requirements imposed by law and/or regulations, as allowed under the SCM Agreement.  It is, however, unlikely that all of the six conditions for this exception clause to apply are met as current schemes are voluntary, the subsidies are not one-time but re-occur every time new abatement has been achieved, and the payments are not limited to 20 per cent of the cost of adaptation.  The condition that financial assistance should be directly linked to and proportionate to a firm’s pollution reduction,  is only met in case of emissions abatement projects, such as methane capture. Sequestration projects are not covered as these do not reduce the firm’s own emissions. Whether the condition that the financial assistance needs to be available to all firms which can adopt the new equipment and/or production processes is met, depends on the design of the regulatory scheme. The Australian scheme, for example, under which only farmers with winning bids in a reversed auction receive government funds, seems incompatible with the latter condition.

The other WTO instruments are only relevant to a very limited extend. The GATT and TBT Agreement, generally, are not applicable in the case of the two instruments that are most likely to be used to stimulate climate smart agriculture. The GATS requires a policy to enable foreign service providers to be active under a carbon pricing mechanism aimed at offsets from agriculture. The TRIP Agreement requires states to protect the invention of climate smart technologies to be protected under patent law. Should policies be aimed at a rapid adoption of patented climate smart technologies, then states can opt for excluding a climate smart technology from patentability based on grounds of avoiding serious prejudice to the environment.

To further facilitate the adoption and implementation of policies promoting climate smart agriculture, the international community should take action in the area of international trade law. Unfortunately, climate change is not addressed in a comprehensive manner in the ongoing negotiations on liberalizing environmental goods and services, on the relationship between the WTO and the UNFCCC and the Paris Agreement, and on agriculture, nor in the regular meetings of the Committee on Trade and the Environment and the TBT Committee.  It is clear that policies aimed at stimulating climate smart agriculture cannot be neatly assessed under one of the current WTO Agreements, but instead are situated in between and across the various agreements, depending on the specific type of measure and the specific activity that is incentivized. It seems that it is difficult to give due consideration to climate smart agriculture in all of the ongoing negotiations and discussions within the WTO framework, although several realistic options to at least create more room do exist. The most realistic and feasible options in my view are including climate smart agriculture technologies in the yet to be concluded WTO Agreement on Environmental Goods and Services and to recognize carbon sequestration as an agricultural product under the AoA so that it becomes possible to support farmers’ sequestration measures under the Green Box.

 

[1] For example, David Blandford and Tim Josling, Greenhouse Gas Reduction Policies and Agriculture: Implications for Production Incentives and International Trade Disciplines (Geneva: International Centre for Trade and Sustainable Development, 2009); David Blandford, “Climate Change Policies for Agriculture and WTO Agreements”, in Joseph A. McMahon, Melaku Geboye Desta (eds.), Research Handbook on the WTO Agriculture Agreement. New and Emerging Issues on International Agricultural Trade Law (Cheltenham: Edward Elgar, 2012), pp. 223 et sqq.; David Blandford, International Trade Disciplines and Policy Measures to Address Climate Change Mitigation and Adaptation in Agriculture, E15 Expert Group on Agriculture, Trade and Food Security Challenges Think Piece (Geneva: ICTSD/WEF, 2013); Andrew Green, “Climate Change, Regulatory Policy and the WTO. How Constraining are Trade rules?”, 8:1 Journal of International Economic Law (2005), pp. 143 et sqq.; Christian Hberli, WTO Rules Can Prevent Climate Change Mitigation for Agriculture, Working Paper No. 2016/06 (London: Society of International Economic Law, 2016); Deok-Young Park (ed.), Legal Issues on Climate Change and International Trade Law (Cham: Springer International, 2016); Richard G. Tarasofsky, “Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change”, 2:1 Carbon and Climate Law Review (2008), pp. 7 et sqq.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

 EU


25/07/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part 2)

By Jonathan Verschuuren (TLS)

In my previous blog, I showed how various countries around the world are in the process of setting up offset schemes for agriculture, in an attempt to reduce greenhouse gas emissions from this sector. I also explained that Australia has a unique position as it has the longest operating system in place, and one that currently is not linked to emissions trading but is a stand-alone system. Technically, therefore, Australia’s Carbon Farming Initiative, is not an offset instrument, but a regulatory instrument aimed at achieving emissions reductions in the land use sector on its own. In this blog, I will focus on some of the results that have been achieved with the system so far, based on an empirical research that I carried out.[1] In case studies into selected CFI-projects and in a series of interviews with the key stakeholders, I searched for the experiences with the scheme in Australia, with the objective to draw lessons for other countries, including the EU as a whole, that wish to establish a policy aimed at reducing emissions from agriculture.

Sunset over rural Australia (Photo: J. Verschuuren)

Sunset over rural Australia (Photo: J. Verschuuren)

My research found that the current legislation on carbon farming in Australia provides an elaborate, yet reliable legal framework that seems well suited to assess project applications and issue credits to participating farmers who, through these projects, generated real and additional emission reductions. It was especially interesting to find that a major overhaul of the legislation in 2015, delinking the scheme from emissions trading, really pushed the scheme forward. Not having to sell credits on the volatile international carbon market, but being able to rely on long term, fixed government money (called ‘Emissions Reduction Fund’), spurred Australia’s farmers into action. It shows that it is important to create long term certainty for farmers. Farmers who want to introduce carbon farming have to implement structural changes to their farming practices with long term impacts on their business. The policy environment, as well as the agribusiness’ financial environment, has to accommodate such long term impacts. This also implies that relying on the carbon market for funding should only be done when there is long term certainty that carbon credits will earn an acceptable minimum price.

Another interesting finding is that, although Australia’s carbon farming policy and the associated regulatory framework is only aimed at achieving as much greenhouse gas abatement as possible against the lowest possible costs, many project actually have important co-benefits. These co-benefits often are an as important and sometimes even more important stimulus for farmers to convert to carbon farming than the direct financial benefits arising from selling generated carbon credits to the government. Generally, it is found that the policy is leading to the introduction of better farming methods in an overall conservative sector. These methods are not just good for combatting climate change, but have many benefits for farmers and even for food security. Vegetation projects generally reduce salination and erosion and improve water retention. Soil carbon projects were especially mentioned for having an astonishing impact on soil quality. Research indicates that an increase in the level of soil organic carbon, leads to a drastic increase of water availability and fertility, and thus to an increase in agricultural production. One respondent referred to an example he knew, of two brothers who had farmland adjacent to each other: ‘One of them was involved in a soil carbon project, the other was not. After a while, you could clearly see the difference, with much more and better growing crops on the land of the first. The other brother had to drive across his brother’s land to reach his own land and saw the difference every day.’ Although many respondents stressed that conservatism, especially among older farmers, slows down the adoption of these new climate smart practices, they all felt that the farming sector is slowly changing and is taking up these new practices. Assessing the impact of soil carbon projects, however, is complex and several stakeholders indicated that ‘we are still learning how to do it under different circumstances.’ Since the regulatory framework requires farmers to carefully monitor what is happening in the soil, a lot of new knowledge is generated. One respondent said: ‘We are in fact doing large scale experiments with soil carbon, all thanks to the Emissions Reduction Fund.’ There are many interesting case studies available remarkable results of reduced carbon emissions, better growing conditions, more water availability, and more biodiversity under such programmes as ‘soils for life’ and ‘healthy soils’.

Increasing soil carbon, therefore, has strong positive side-effects on adaptation as they increase the resilience of the land and lead to greater efficiency. Here, mitigation and adaptation go hand in hand. The same is true for some of the other sequestration methods that are allowed under the Australian scheme, such as native tree planting in arid and semi-arid areas both to store carbon and to stop degradation and salinization of farmland.

Sometimes, there are also direct economic co-benefits associated to carbon farming projects. In the piggeries sector, for example, there are producers who save A$ 15,000 (roughly € 10,000) per month on energy bills and earn an additional A$ 15,000 by delivering energy to the grid after having adopted methane capture and biogas production technology. When asked whether the CFI/ERF was the push factor, or the expected economic co-benefit, the respondent from the pork sector said that the CFI/ERF was the main driver for the distribution of this technology: ‘About half of the participating producers jumped because of the CFI/ERF push. It especially pushes medium sized producers, because it increases their payback just enough to get involved. Eighteen biogas projects in piggeries have to date generated A$ 6 million (€3.9m) a year in electricity savings and A$ 10.2 million (€ 6.6m) through carbon credits under the Emissions Reduction Fund. The Fund really was the driver for most of these eighteen producers.’ It is clear, though, that for the longer term, these co-benefits will continue to exist on a yearly basis, also without carbon credits being purchased by the government.

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

From these findings, the lesson can be drawn that a policy that has a wider focus on adaptation, food security, resilient and sustainable farm businesses and securing and creating jobs in the agribusiness sector, is likely to be more successful than one that only focuses on reducing emissions from agriculture. Several of the methods accepted or under development in Australia, such as those dealing with soil carbon, show that such co-benefits can indeed be achieved. Developing climate smart methodologies that not only deliver real, additional, measurable and verifiable emission reductions but also foster long term innovation and create economic, social and environmental co-benefits is essential for the success of any policy aimed at stimulating climate smart agriculture. Science has to be central in the development and adoption of methods that are accepted under the regulatory framework. In Australia, much research effort has already gone into method development. This now has to be taken to a global level. In order to avoid that every country is trying to invent the wheel, international collaboration in method development is pivotal. The aim has to be to roll out climate smart agriculture policies across the world, so as to stimulate our farmers to make a switch from conventional farming to climate smart farming.

 

[1] An article covering all the results of the project will be published in early 2017.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU


24/05/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part I)

By Jonathan Verschuuren (TLS)

Not many countries have regulatory schemes in place aimed at reducing greenhouse gas emissions from agriculture. As indicated in the blog on the Paris Agreement and agriculture, the agricultural sector is responsible for almost 25% of anthropogenic GHG emissions, both through CO2 emissions caused by deforestation and peatland drainage, and through methane (NH4) emitted by livestock and rice cultivation, as well as through nitrous oxide (N2O) emissions caused by the use of synthetic fertilizers and the application of manure on soils and pasture. There is a dark cloud hanging over this because emissions are expected to rise over the coming years and decades because of an expected sharp rise in food demand. The Australian Climate Change Authority, in a 2014 climate change policy review for that country, for example, reports that the agricultural sector is expecting a doubling of demand for agrifood commodities in emerging economies in Asia, particularly China and India. It is expected that Australia is in a good position to meet this increased demand, as a consequence of which Australia’s production of agrifood is expected to increase by 77% in 2050 (from 2007 level). The Climate Change Authority in its  report is pessimistic about what that means for climate change. Because of the strong economic incentives of the global food market, increasing emissions are inevitable: the expected production growth is likely to offset emission reductions achieved through the introduction of climate smart agriculture practices and technologies.

Photo by Flickr user Oli.

Photo by Flickr user Oli.

Doing nothing, however, is no option, as this will lead to an even bigger rise in emissions. And what is more: the agricultural sector has the potential to store large quantities of carbon in soils and vegetation. Domestic regulators, however, have been reluctant to address agricultural emissions, partly because of regulatory difficulties. It is, for example, difficult to measure emissions at the individual farm level since a variety of factors determine the amount of emissions (such as the diet of individual animals, soil composition, weather systems of individual regions, the way in which fertilizer is applied, etc.). In addition to emissions, removals are relevant as well since crops and other vegetation absorb CO2 from the air, and lots of carbon is stored in soils (more carbon is stored in soils than what is present in vegetation and the atmosphere). Soil carbon may be released, or remains there, or is increased, depending on how you manage the land.

A growing number of countries is setting up regulatory schemes aimed at reducing emissions from agriculture, mostly in the form of an offsets scheme linked to emissions trading. Under these schemes, industries and energy producers can buy credits generated by agriculture, and use these partly to comply with their obligation to hand in allowances equal to their emissions. This is the case in California, Quebec, Alberta, and Ontario. Under the California ETS, two types of agricultural offset projects are accepted, both aimed at reducing methane emissions: biogas systems in dairy cattle and swine farms, and rice cultivation projects. In Alberta, agricultural offsets include a wide range of projects: nitrous oxide emission reductions, biofuel production and usage, waste biomass projects, conservation cropping, several types of projects concerning beef production, projects aimed at reducing emissions from dairy cattle and biogas production.

The country with the longest experience in this area, however, is Australia. Despite the country’s much criticized poor overall climate policy, Australia adopted a Carbon Farming Initiative (CFI) as early as 2011, which spurred farmers into action and, therefore, potentially provides the rest of the world with a model to reduce emissions from agriculture. In 2011, the CFI originally was set up as an offset scheme under its ETS. Since the repeal of the ETS in 2015 (just before trading was set to start), the initiative, now called Emissions Reduction Fund (ERF) functions on its own and is enjoying rapidly increasing attention from farmers.

Instead of having to rely on the (unreliable) international carbon market, under the ERF farmers can offer the credits that they generated to the government through reversed auctions. Farmers can obtain credits for both emission avoidance projects and sequestration projects and offer these credits to the government. The government buys up credits from projects that achieved the biggest emissions cuts against the lowest costs. Agricultural emission avoidance projects mostly focus on methane emissions reductions: methane capture and combustion from livestock manure and methane emissions reduction through manipulation of digestive processes of livestock. A third important emission avoidance project for the agricultural sector is the application of urease or nitrification inhibitors aimed at reducing fertilizer and manure emissions. Sequestration projects are for example projects aimed at sequestering carbon in soils in grazing systems, on farm revegetation, rangeland or wetland restoration, the application of biochar to the soil, and the establishment of permanent plantings on farmland.

Since 2011, an enormous amount of expertise has been built up in Australia, and a very elaborate and effective regulatory system has been developed that on the one hand seems to ensure a high level of environmental integrity, while on the other hand not overburdening farmers with costly administrative obligations. The Australian scheme, therefore, is an interesting example for the rest of the world, particularly for the EU, that has yet to tackle emissions from agriculture. A government funded, project based system of emissions reductions seems to fit well in the EU’s Common Agricultural Policy.

In May 2016, the results from the latest auction were released. After three auctions a total of 309 carbon abatement contracts have been awarded by the Australian government to deliver more than 143 million tonnes of CO2 equivalent abatement, earning the project proponents a total of A$1.7 billion (about € 1 billion). The vast majority of abatement is by vegetation projects, which often are on farmland (but not always). Carbon farming has grown into an important new income stream for farmers in Australia. In a country prone to droughts, floods and bush fires, the scheme, therefore, not only helps to reduce emissions from agriculture, it also assists in diversification of agricultural practices and leads to a more resilient sector.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU


26/04/2016

Solar Climate Engineering and Intellectual Property

By Jesse Reynolds (TLS)
A schematic of stratospheric aerosol injection climate engineering. Image by Hugh Hunt, Creative Commons Attribution-ShareAlike 3.0 Unported.

A schematic of stratospheric aerosol injection climate engineering. Image by Hugh Hunt, Creative Commons Attribution-ShareAlike 3.0 Unported.

Climate change has been the focus of much legal and policy activity in the last year: the Paris Agreement, the Urgenda ruling in the Netherlands, aggressive climate targets in China’s latest five year plan, the release of the final US Clean Power Plan, and the legal challenge to it. Not surprisingly, these each concern controlling greenhouse gas emissions, the approach that has long dominated efforts to reduce climate change risks.

Yet last week, an alternative approach received a major—but little noticed—boost. For the first time, a federal budget bill included an allocation specifically for so-called “solar climate engineering.” This set of radical proposed technologies would address climate change by reducing the amount of incoming solar radiation. These would globally cool the planet, counteracting global warming. For example, humans might be able to mimic the well-known cooling caused by large volcanos via injecting a reflective aerosol into the upper atmosphere. Research thus far – which has been limited to modeling – indicates that solar climate engineering (SCE) would be effective at reducing climate change, rapidly felt, reversible in its direct climatic effects, and remarkably inexpensive. It would also pose risks that are both environmental – such as difficult-to-predict changes to rainfall patterns – and social – such as the potential for international disagreement regarding its implementation.

The potential role of private actors in SCE is unclear. On the one hand, decisions regarding whether and how to intentionally alter the planet’s climate should be made through legitimate state-based processes. On the other hand, the private sector has long been the site of great innovation, which SCE technology development requires. Such private innovation is both stimulated and governed through governmental intellectual property (IP) policies. Notably, SCE is not a typical emerging technology and might warrant novel IP policies. For example, some observers have argued that SCE should be a patent-free endeavor.

In order to clarify the potential role of IP in SCE (focusing on patents, trade secrets, and research data), Jorge Contreras of the University of Utah, Joshua Sarnoff of DePaul University, and I wrote an article that was recently accepted and scheduled for publication by the Minnesota Journal of Law, Science & Technology.  The article explains the need for coordinated and open licensing and data sharing policies in the SCE technology space.

SCE research today is occurring primarily at universities and other traditional research institutions, largely through public funding. However, we predict that private actors are likely to play a growing role in developing products and services to serve large scale SCE research and implementation, most likely through public procurement arrangements. The prospect of such future innovation should be not stifled through restrictive IP policies. At the same time, we identify several potential challenges for SCE technology research, development, and deployment that are related to rights in IP and data for such technologies. Some of these challenges have been seen in regard to other emerging technologies, such as the risk that excessive early patenting would lead to a patent thicket with attendant anti-commons effects. Others are more particular to SCE, such as oft-expressed concerns that holders of valuable patents might unduly attempt to influence public policy regarding SCE implementation. Fortunately, a review of existing patents, policies, and practices reveals a current opportunity that may soon be lost.   There are presently only a handful of SCE-specific patents; research is being undertaken transparently and at traditional institutions; and SCE researchers are generally sharing their data.

After reviewing various options and proposals, we make tentative suggestions to manage SCE IP and data. First, an open technical framework for SCE data sharing should be established. Second, SCE researchers and their institutions should develop and join an IP pledge community.  They would pledge, among other things, to not assert SCE patents to block legitimate SCE research and development activities, to share their data, to publish in peer reviewed scientific journals, and to not retain valuable technical information as trade secrets. Third, an international panel—ideally with representatives from relevant national and regional patent offices—should monitor and assess SCE patenting activity and make policy recommendations. We believe that such policies could head off potential problems regarding SCE IP rights and data sharing, yet could feasibly be implemented within a relatively short time span.

Our article, “Solar Climate Engineering and Intellectual Property: Toward a Research Commons,” is available online as a preliminary version. We welcome comments, especially in the next couple months as we revise it for publication later this year.

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