By Dr. Snjólaug Árnadóttir
The climate crisis unveils legal gaps and inequitable outcomes of existing laws. Proposed projects which attempt to prevent and mitigate the impacts of climate change often fall into a legal lacuna. In particular, new methods for carbon dioxide removal are being developed to mitigate the adverse effects of the climate crisis, but legislators struggle to keep up with these developments, creating a host of legal gaps and uncertainties. There is an urgent need to bridge the gap between law and emerging industries and this calls for innovative lawyers to clarify the scope of existing laws and, in some instances, influence legal reform.
The International Panel on Climate Change has explained that planned reduction in greenhouse gas emissions will not suffice to prevent catastrophic changes to the Earth’s climate. States must also remove carbon dioxide from the atmosphere through sinks and reservoirs, which means storing carbon dioxide in terrestrial, geological and oceanic reservoirs and enhancing biological or geochemical carbon sinks. These anthropogenic activities can take many forms, including rewetting peatlands, restoring grasslands, forestation, ocean alkalinity enhancement and farming of macroalgae.
Approximately 100-1000 billion tons of carbon dioxide will have to be removed from the atmosphere by 2100. In fact, the 196 State parties to the Paris Agreement are obligated to formulate and implement measures to reduce the emission of greenhouse gases and to ‘conserve and enhance, as appropriate’ carbon sinks. Thus, carbon dioxide removal might even be obligatory under international law. However, rules governing such projects are riddled with legal uncertainty at the international and domestic level.
Carbon dioxide removal might even be obligatory under international law. However, rules governing such projects are riddled with legal uncertainty at the international and domestic level.
Iceland is home to novel carbon dioxide removal initiatives. Carbfix, part of the Reykjavik Energy Group, received its permit to operate in 2014 and is now the most firmly established carbon dioxide removal project in Iceland. It is a land-based project involving the capture of carbon dioxide from the atmosphere, which is mixed with liquid before being pumped deep underground and turned to stone through a reaction with basaltic rocks. This process has led to the injection of at least 85,000 metric tonnes of carbon dioxide into ground rock and that number is steadily rising.
Carbfix has attracted global attention, but scientists are still racing to find other suitable technologies to further accelerate carbon dioxide removal from the atmosphere. A variety of technologies and methods have been developed and the interest in ocean-based approaches is growing. The ocean is actually the world’s largest carbon sink, having already absorbed over 25 per cent of anthropogenic carbon dioxide emissions, and Iceland has a long tradition of utilising the ocean in a sustainable manner.
Transition Labs, a recent enterprise in Iceland, is in the process of deploying and scaling up various ocean-based, carbon dioxide removal projects. These involve, for example, the farming of kelp, a fast-growing macroalgae which is expected to absorb thousands of tons of carbon dioxide before sinking to the ocean floor, and the dissolution of alkaline minerals into seawater to accelerate the ocean’s natural carbon sink.
These types of projects are underregulated in most domestic settings and internationally. Carbfix operates solely on sovereign territory, primarily under Iceland’s exclusive jurisdiction. However, ocean-based projects invoke more legal questions as they fall outside territorial jurisdiction and are subject to international instruments, such as the UN Convention on the Law of the Sea (UNCLOS), the London Dumping Convention and Protocol, and regional conventions such as The Convention for the Protection of the Marine Environment of the North-East Atlantic (the ‘OSPAR Convention’).
States, such as Iceland, must take note of these international obligations when regulating the permit process and deciding whether to grant licenses to individual projects. That alone is challenging because the instruments do not specify how to manage all emerging technologies or how to evaluate risks associated with different types of pollution.
UNCLOS obligates States to ‘prevent, reduce and control pollution of the marine environment’ – but in this context, pollution may entail both the carbon dioxide subject to removal, as well as the equipment and material used to remove carbon dioxide from the atmosphere. Thus, States may have to weigh potential climate benefits against potential harm to the marine environment when deciding whether to license certain projects.
Furthermore, the London Dumping Convention and Protocol call for States to adopt domestic legislation to regulate the dumping of waste and other matter to areas and activities under their jurisdiction. ‘Dumping’ is generally prohibited under the Protocol but the same does not apply to a ‘placement’ where the purpose is something other than the mere disposal of the material. There is currently no consensus on whether carbon dioxide removal projects, such as large-scale seaweed cultivation and ocean alkalinity enhancement, constitute ‘placement’ or ‘dumping’.
Nonetheless, States must decipher these obligations and implement them into domestic processes to make sure that all individual permits abide by relevant international obligations. In many cases, legal reform will be necessary if States want to facilitate licensing processes and ensure that the activities are sufficiently monitored and subject to necessary impact assessment procedures.
Legal The Centre for Law on Climate Change and Sustainability (CLoCCS)
The rise of climate initiatives in Iceland demonstrates the need for innovative climate lawyers. Climate science is advancing at a remarkable rate and the legal community must strive to keep up with these developments. The projects described above have raised numerous legal questions and acted as a catalyst in the formation of a new research centre at Reykjavik University: The Centre for Law on Climate Change and Sustainability (CLoCCS).
The Centre aims to accelerate climate action through the study and dissemination of relevant international and domestic law to public and private sectors in order to clarify legal processes and help shape legal reform. CLoCCS is in its infancy but has already worked with private actors to identify key legal challenges and communicated the need for clarifications to state organs. The aim is to develop model laws for the surveillance and licensing of carbon dioxide removal projects in cooperation with relevant authorities and stakeholders.
One of the first focal points of the centre is carbon dioxide removal at sea due to the influx of such projects and Iceland’s long tradition of responsible exploitation, conservation and management of its vast maritime expanses. This field calls for expertise in administrative law, property law, domestic and international environmental law, treaty law and law of the sea and represents one example of the infiltration of the climate crisis into those areas of law. These initiatives aim to accelerate the transformation to a carbon neutral future and they clearly demand broad cooperation between disciplines and also from within the legal community. Indeed, law is a vital tool in the fight for our planet and climate lawyers can make meaningful contributions by streamlining legal processes and eradicating unnecessary legal hurdles to accelerate responsible climate action.
In the spirit of the Pledge, we will from now on ask all blog authors the same question aimed at identifying the exact points where their field of law could contribute to fighting climate change:
Dr. Snjólaug Árnadóttir is an Assistant Professor at Reykjavik University, Director of the Centre for Law on Climate Change and Sustainability (CLoCCS) and member of the International Law Association Committee on International Law and Sea Level Rise. She is the author of Climate Change and Maritime Boundaries: Legal Consequences of Sea Level Rise (Cambridge University Press, 2022).