Environmental Law

26/04/2016

Solar Climate Engineering and Intellectual Property

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.

10/01/2014

First binding international law on climate engineering

In October 2013, the Parties to the London Dumping Convention (to be more precise: the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter) adopted amendments aimed at regulating marine geo-engineering. This is the first time the international community adopted binding legal rules on climate engineering. Climate engineering, or geo-engineering, is the deliberate interference with the Earth’s climate to achieve a cooling effect, thus mitigating global warming. A range of very different techniques are being researched at the moment, usually divided into two groups: solar radiation management (SRM) and carbon dioxide removal (CDR). SRM techniques are for instance the injection of sulphur aerosols in the stratosphere to block the sun light, thus mimicking volcanic ashes in the stratosphere after a volcanic eruption (stratospheric aerosol injection, SAI), and the injection of fine sea water particles in clouds to increase the reflective capacity of clouds (marine cloud brightening, MCB, sometimes also referred to as cloud seeding). CDR techniques are for instance the emission of fertilizers such as iron into the ocean to stimulate a bloom of phytoplankton, which are responsible for a large share of the carbon take up (ocean iron fertilization, OIF), large scale afforestation, and direct air capture of greenhouse gasses (DAC).

Each of these techniques has its own pros and cons. Some are considered to be potentially dangerous because of the large scale at which they have to be used to be effective and the risk of unexpected negative side effects. It, for instance, has been estimated that for stratospheric aerosol injection to be effective, a more or less continuous emission of aerosols by a very large number of aircraft (perhaps as many as a thousand) is needed to keep a constant blanket of aerosols in the atmosphere. As this technique does not interfere at all with the amount of carbon in the atmosphere, generations to come have to continue applying this technique. Stopping the emission of aerosols will trigger a very sudden drastic warming effect. Other negative consequences of SAI are side effects, such as potentially drastic changes in precipitation in some regions, ongoing ocean acidification and potential harm to the ozone layer. Ocean fertilization leads to eco-system changes and may affect fish stocks. There are many reports that describe the pros and cons of the various geo-engineering techniques. In Germany, the Kiel Earth Institute published a good reportin English. In the Netherlands, the Rathenau Institute published an up-to-date and very well accessible reportin Dutch in December 2013.

As is often the case with the development of new techniques and technologies, the law regulating these is lagging behind. This, however, does not mean that climate engineering is completely unregulated at the moment. International law that applies to (some forms of) climate engineering, can be divided into four categories:

–        International customary law. The no harm principle limits the use of techniques that may have an irreversible negative side effect for certain states (in the 1997 Gabčíkovo-Nagymaros case, the International Court of Justice stated that in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage).An assessment of the potential negative impacts on the environment of other states is required as a consequence of this principle (as was concluded by the ICJ in the 2010 Pulp Mills case). Other international environmental law principles that are relevant here are the precautionary principle and the principle of intergenerational equity.

–        International human rights conventions may apply, although both advocates and critics of climate engineering use human rights as an argument in favour of and against the deployment of geo-engineering techniques (climate engineering is necessary to protect human rights which will be affected by climate change, or: climate engineering may negatively impact on human rights in case of unexpected failure or negative side-effects)

–        Existing treaties that more or less explicitly deal with climate engineering. The best example before the adoption of the 2013 amendments to the London Protocol is the 1976 Convention on Environmental Modifications (ENMOD convention). Although this convention is mainly aimed at environmental modifications with a hostile intend, it also sets some conditions to environmental modifications for peaceful purposes, such as climate engineering. Climate engineering is allowed under the ENMOD Convention, provided that a State does not develop and employ climate engineering on its own (international cooperation is needed), the deployment has to contribute to international economic and scientific collaboration aimed at improving the environment, and States have to take into account the needs of developing countries.

–        Existing treaties that happen to be applicable to a certain climate engineering technique, such as the 1979 Convention on long range transboundary air pollution which sets a cap on various emissions, such as sulphur emissions, thus limiting the use of sulphur for stratospheric aerosol injection.

The adoption of amendments to the London Protocol referred to in the first sentence of this blog fit within the third category, but is special because it is the first time that climate engineering has been explicitly targeted by international law. Through the amendments, a new article and two new annexes are inserted into 1996 Protocol. The new article states that “Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geo-engineering activities listed in Annex 4, unless the listing provides that the activity or the sub-category of an activity may be authorized under a permit”. Annex 4 then lists ocean fertilization as a prohibited activity, with the exception of legitimate scientific research. Such research has to be permitted and assessed under the criteria laid down in Annex 5. Annex 5 has extensive provisions for the permitting process at the domestic level by the parties to the protocol, on consultation, prior assessment, site selection, risk management, monitoring, scientific  peer review, etc., etc. States have to adopt legislation so as to implement these new provisions. Once ratified, these amendments will thus lead to legislative activity in all of the 44 parties to the protocol. They will serve as a benchmark for all future geo-engineering law, both at international and national level.

28/06/2011

CCS or algae?

Storing CO2 under the ground, which climate change specialists often refer to as CCS (carbon capture and storage), is seen as an important step on the road to a society in which we are no longer dependent on burning fossil fuels. The technology for removing CO2 from the air has existed for quite some time already (as evidenced by the addition of carbonic acid to drinks to make them fizzy). In a new generation of power plants, the CO2 could be removed before it ever has the chance to get into the atmosphere. But the transportation of the CO2 to the storage site, and the process of storing it, are more problematic. This is because the CO2 must be transported and stored in such a way that it cannot escape – ever again. A blow-out would not only defeat the whole object of storing the CO2 in the first place, it could also be very dangerous. A small leak from a pipeline in Berkel en Rodenrijs in 2008 received international attention, even though casualties were limited to a few ducks. But the worst case scenario at the back of everyone’s minds is the large-scale escape of CO2 from a lake in Cameroon in 1986 as a result of volcanic activity. The escaped gas suffocated 1700 people. Storage in thinly populated or uninhabited regions or under the sea bed would seem to be the best solution, but the disadvantage of this is that it requires long pipelines. Many trial projects are underway in both Europe and Australia, mostly still in their initial phase. In 2009, an EU directive was issued including regulations on the underground storage of CO2. These focused particularly on preventing any harmful environmental effects, especially over the longer term. The most important legal issue is liability. Who will be responsible if in the future, say 100 years from now, damage is caused despite all the security measures that have been taken? For American and Australian companies, this is now a cause for extreme caution in moving forward with CCS. In the EU, this problem has been solved by the automatic transfer of liability to the state after a certain period of time.

However, it now seems that new technology is becoming available which could be much more lucrative than CCS – that is recycling CO2. In Australia, a company has been set up which uses an industrial application of CO2 to cultivate algae and produce commodities such as cattle food, bio fuels and raw materials for medicines. I’m certainly curious about the legal issues that will arise from that!