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Future Prospects for Climate Engineering within the EU Legal Order

Published online by Cambridge University Press:  20 January 2017

Floor Fleurke*
Affiliation:
EU environmental law at Tilburg Law School

Extract

This article explores the prospects for the EU to develop a coherent policy regarding climate engineering (CE). To this end, we explore the most significant legal parameters derived from EU law from which such a future EU policy would have to arise. Obviously, in view of the principle of conferral, it must first be established if the EU enjoys competences to initiate a discrete policy on climate engineering. The mere fact that the EU presides over a plethora of climate mitigation and adaptation instruments is not sufficient to conclude that it likewise has competence to initiate a policy of intentional environmental change. Rather, precisely because climate engineering is such a different response to climate change than anything undertaken before, we must establish whether that difference is of a nature so as to rule out a future EU policy on climate engineering.

Type
Special Issue on Regulating Climate Engineering in the European Union
Copyright
Copyright © Cambridge University Press 2016

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References

1 Society, Royal, Geoengineering the Climate: Science, Governance and Uncertainty (2009), at 1718 Google Scholar

2 Ibid.

3 Royal Society (2009), supra n. 1. McNutt, M.K., et al., Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration. (Washington: National Academies Press, 2015)Google Scholar; McNutt, M.K., M.K., Climate Intervention: Reflecting Sunlight to Cool Earth. (Washington: National Academies Press, 2015)Google Scholar.

4 Royal Society (2009), supra n. 1.

5 See on the general regulation of CE J.L. Reynolds, ‘The International Framework for Climate Engineering.’ Working Paper, Geoengineering Our Climate Working Paper and Opinion Article Series. Available at: http://wp.me/p2zsRk-cw ; Reynolds, J.L., The Regulation of Climate Engineering (2011) 3 Law, Innovation and Technology 113 CrossRefGoogle Scholar. Bodansky, D., ‘May We Engineer the Climate?Climatic Change (1996) 33(3), 309321 CrossRefGoogle Scholar.

6 Lee, M., ‘The Environmental Implications of the Lisbon Treaty’, 10 Envtl. L. Rev. (2008), 131-8CrossRefGoogle Scholar.

7 European Commission, EU Action Against Climate Change: Leading Global Action to 2020 and beyond. Available on the Internet at: http://ec.europa.eu/clima/sites/campaign/pdf/post_2012_en.pdf.

8 Previously, the EU has committed itself to combat climate change in its Climate and Energy package of 2010, in which it pledges a reduction of 20% in greenhouse gases by 2020 relative to a 1990 baseline.

9 The 2 degrees Celsius goal is agreed at the Copenhagen Summit of 2010; See also World Resources Institute, Comparability of Annex I Emission Reduction Pledges Report.

10 See in this regard also Commission Communication, ‘A European Strategic Energy Technology Plan (SET Plan) – Towards a Low Crabon Future, COM(2007) 723 final and [2008] OJ C82/1.

11 See the European Environment Agency Report Progress towards 2008 – 2012 Kyoto targets in Europe, October 2014, available on the Internet at: http://www.eea.europa.eu/publications/progress-towards-2008-2012-kyoto.

12 See Sandbag Report, Drifting Towards Disaster is Sandbag's 5th annual report on the Environmental Outlook for the EU ETS (2013). Available on the Internet at: http://www.sandbag.org.uk/site_media/pdfs/reports/Drifting_Towards_Disaster.pdf.

13 Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC Text with EEA relevance OJ L 315.

14 Srivastava, N., ‘Geoengineering and Law: A Case Study of Carbon Capture and Storage in the European UnionEuropean Energy and Environmental Law Review (2011), 187196 Google Scholar.

15 The general consensus is that CCS is not a form of geoengineering since CCS modifies emissions and captures CO2 before it enters the atmosphere. See for example Royal Society 2009, supra n.1.

16 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006OJ L 140 (CCS Directive)

17 CCS Directive, Article 1. The Directive requires a permit for storage of CO2 except for research projects of up to 100 kilo tonnes.

18 Ibid., Recital 19.

19 PBL Netherlands Environmental Assessment Agency, Trends in global CO2 emissions: 2013 Report. Available on the Internet at: http://www.pbl.nl/en or edgar.jrc.ec.europa.eu; Although it needs to be noted that the calculation method for GHG emissions is production based rather than consumption based.

20 See also International Energy Agency, CO2 Emissions from Fuel Combustion (2014). Available on the Internet at: https://www.iea.org/publications/freepublications/publication/CO2EmissionsFromFuelCombustionHighlights2014.pdf. In 2008 emissions from developing countries for the first time trumped emissions from developed countries.

21 Intergovernmental Panel on Climate Change, Synthesis Report based on the reports of the three Working Groups of the (IPCC), including relevant Special Reports. Available on the Internet at: https://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf. It provides an integrated view of climate change as the final part of the IPCC's Fifth Assessment Report (AR5).

22 For example Betts, R.A. et al., ‘When Could Global Warming Reach 4°C? Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences (2011) 369, 67 CrossRefGoogle ScholarPubMed.

23 Keohane, R.O. and Victor, D.G., ‘The Regime Complex for Climate ChangePerspectives on Politics (2011) 9, at 7 CrossRefGoogle Scholar.

24 J. Scott and L. Rajamani, ‘EU Climate Change Unilateralism’ The European Journal for International Law (2012) 23 2, 469-494.

25 Interesting in this regard is the example of a privately financed large scale ocean fertilization project at Haida Gwaii, off the coast of British Columbia, that was justified by one of the First Nation representatives, Old Massett Chief Councilor Ken Rea. He responded to a crowd of protesters by observing; ‘On a changing planet, we need to take bold steps and the people of Old Massett believe this is the right step.’

26 European Parliament resolution of 29 September 2011 on developing a common EU position ahead of the United Nations Conference on Sustainable Development (Rio+20), P7_TA(2011)0430.

27 Information on the IMPLICC project has been posted on the project's public website available at: http://implicc.zmaw.de.

28 Directive 85/337 on the assessments of the effects of certain public and private projects on the environment, OJ L 1985 L 175/30 (EIA Directive); Directive 2001/42/EC on the assessments of the effects of certain plans and programmes on the environment, OJ 2001 L 197/30 (SEA Directive).

29 EIA Directive, art. 1(1).

30 Ibid., art. 2(1).

31 See for more details points 16, 23 and 24 of Annex I and points 3 (j), 10 (i) of Annex II.

32 See par. 2.4 below.

33 SEA Directive 2001/42. Article 3(4).

34 Ibid., Aricle 3(5); Member States have to use the (non-exhaustive) criteria in Annex II.

35 Ibid., Article 5.

36 Ibid., Article 9 and 10.

37 Lee, M., EU Environmental Law: Challenges, Change and Decision- making (Hart Publishing: 2005), at 171 Google Scholar.

38 Trenberth, K.E. and others, ‘Observations: Surface and Atmospheric Climate Change’ in Solomon, S. and others (eds), Climate Change 2007: Working Group I: The Physical Science Basis (Cambridge University Press: 2007), at 274275 Google Scholar.

39 OJ 2009 L 286/1 replacing Regulation 2037/2000 OJ 2000 L244/1 as amended by Reg. 1791/2006, OJ 2006 L 363/1.

40 Reg. 1005/2009/EC, Article 2.

41 OJ 2008 L 152/I.

42 Dir. 2008/50/EC, Annex XI and Annex XII.

43 Convention on Long-Range Transboundary Air Pollution (opened for signature 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217 (LRTAP Convention), OJ L 171, 27.6.1981, at 11. See also Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Emissions or their Transboundary Fluxes by at least 30 per cent (1985); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions (1994).

44 OJ 2001 L 309/22. This Directive implements the Gothenburg Protocol to the UNECE Convention on long-range transboundary air pollution to abate acidification, eutrophication and groundlevel ozone, and deals with the sources of pollution.

45 Ibid., Article. 2(a)(b). It can be assumed that sulfate aerosol injected from airplanes does not fall under the exception of ‘aircraft emissions’ and therefore the injection of sulfate aerosols into the stratosphere falls under the scope of the Directive.

46 Ibid., Article 4 and 6.

47 Case C-165/09 and C-167/09 Stichting Natuur en Milieu and Others v. College van Gedeputeerde Staten van Groningen and College van Gedeputeerde Staten van Zuid-Holland, Judgment 26 May 2011, para. 75.

48 OJ 2008 L 24/8.

49 OJ 2010 L 334/17.

50 Jans, J.H. and Vedder, A.H., European Environmental Law (Groningen: Europa Law Publishing: 2011), at 365 Google Scholar.

51 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327. Article 4 (1) of the Water Framework Directive require that any adverse changes to the ecological and chemical status of surface waters (this includes coastal waters) must be avoided, and that a good ecological and chemical status must be preserved or attained. Details are contained in Directive 2008/105/EC on environmental quality standards in the field of water policy. The Directive has a programmatic character meaning that Member States have to make (transboundary) management plans including progamme of measures for every river basin within a given timeline.

52 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy, OJ L 164.

53 Ibid., Article 1(2)(a)(b).

54 For example, human-induced eutrophication is to be minimized, especially adverse effects thereof, such as losses in biodiversity, ecosystem degradation, harmful algae blooms and oxygen deficiency in bottom waters, permanent alteration of hydrographical conditions should not adversely affect marine ecosystems or concentrations of contaminants are at levels not giving rise to pollution effects.

55 Dir. 2008/56/EC, Article 3(8).

56 Most of the human pressures are located on land, within estuaries and along the coastal area but various additional pressures can also be identified for offshore waters, such as a gas storage platform.

57 Dir. 2008/56/EC, Article 6 and 9.

58 Ibid., Article 16. It is the Commission assesses whether, in the case of each Member State, the programmes notified constitute an appropriate framework to meet the requirements of this Directive

59 Ibid., Article 14.

60 Ibid., Article 14(1)(d). If this is the case the Member State has to ensure though that the modifications or alterations do not permanently preclude or compromise the achievement of good environmental status at the level of the marine region or subregion concerned or in the marine waters of other Member States.

61 However, similar to the NEC Directive both the Water Framework Directive and the Marine Strategy Framework Directive are programmatic from character and therefore cannot be enforced at the level of the individual permit.

62 Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1979] OJ L206/7 (Habitats Directive).

63 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the Conservation of Wild Birds [2010] OJ L20/7; this is the codified version of Council Directive 79/409/EEC of 2 April 1979 as subsequently modified (Birds Directive).

64 Habitats Directive, Article 2; Birds Directive, Articles 1 and 2. The latter do not contain the words ‘favourable conservation status’ but are generally understood to imply this purpose for wild birds.

65 Tenth Meeting of the Conference of Parties to the Convention on Biological Diversity, Oct. 18-29, 2010, Decision X/33—Biodiversity and Climate Change 5, U.N. Doc. UN-EP/CBD/COP/DEC/X/33 (2010). Available on the Internet at: https://www.cbd.int/climate/doc/cop-10-dec-33-en.pdf.

66 An exception is made for small-scale scientific activities.

67 Birds Dir., Article 4

68 Ibid.

69 Habitats Dir., Article 4.

70 The so-called Natura 2000 network accounts for over 22 000 individual sites and cover almost 17% of EU-25 land area as well as 140 000 km2 of marine area which is of significance for CE activities.

71 According to Article 7, this provision also applies to Birds Directive SPAs.

72 On the basis of preliminary lists of candidate SACs submitted by the member states, the Commission compiles lists of Sites of Community Importance (SCIs), which are then actually designated as SACs by the member states.

73 See Fleurke, F.M. and Trouwborst, A., ‘European Regional Approaches to Transboundary Conservation of Biodiversity: The Bern Convention and the EU Birds and Habitats Directives’ in Kotze, L. & Marauhn, T. (Eds.), Transboundary Governance of Biodiversity (Brill Nijhoff: 2014), 128163 Google Scholar

74 For a particularly clear example, see Case C-117/00 Commission v Ireland [2002] ECR I-5335, paras 26-33.

75 See also European Commission, Managing Natura 2000 Sites: The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (European Commission, 2000), 24.

76 Case C-535/07 Commission v Austria [2006] ECR I-2755, para 59; see also Case C-418/04 Commission v Ireland [2007] ECR I-10947, para 154.

77 See, inter alia, Wheeler, K., ‘Bird Protection & Climate Changes: A Challenge for Natura 2000?’ (2006) 13 Tilburg Foreign Law Review 283 CrossRefGoogle Scholar; Cliquet, A., Backes, C., Harris, J. and Howsam, P., ‘Adaptation to Climate Change: Legal Challenges for Protected AreasUtrecht Law Review (2009) 5, at 158 CrossRefGoogle Scholar; Erens, S., Verschuuren, J. and Bastmeijer, K., ‘Adaptation to Climate Change to Save Biodiversity: Lessons Learned from African and European Experiences’ in Richardson, B.J. et al. (eds), Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (Edward Elgar: 2009)Google Scholar; Trouwborst, A., ‘Conserving European Biodiversity in a Changing Climate: The Bern Convention, the European Union Birds and Habitats Directives and the Adaptation of Nature to Climate ChangeReview of European Community and International Environmental Law (2011) 20, at 62 CrossRefGoogle Scholar.

78 See Case C-3/96, Commission v. the Netherlands ECR I-03031.

79 Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij. [2004] I-07405. The Court has borrowed the definition of the concept ‘plan or project’ from Council Directive85/337/EECon the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175, at 40.

80 Case C-57/89 Leybucht [1991] ECR I-00883; Case C-521/12, T.C. Briels e.a. v. Minister van Infrastructuur & Milieu, ECLI:EU:C: 2014:330

81 Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage OJ 2004 L 143/56.

82 Ibid., Article 2(1).

83 For damage regarding species and habitats the ELD refers to the Habitats and Birds Directives; for damage concering water the ELD refers to the Water Framework Directive.

84 Dir. 2004/35, Article 2(6).

85 Ibid., Article 2(7).

86 See e.g. Case C-343/05 Diego Cali &Figli v. SEPG [1997] ECR I-1547.

87 Dir. 2004/35, Article 5 and 6.

88 Dir. 2004/35, Annex III, point 14.

89 Ibid., Article 4(5).

90 Case C- 378/08 ERG I [2010] ECR I-01919, para 57.

91 Dir. 2004/35, Article 8(4).

92 Jans and Vedder (2011), supra n. 50 at 389.

93 As defined by Wiener, and Graham, Risk vs. Risk Tradeoffs in Protecting Health and the Environment (Harvard University Press: 1997), at 23 Google Scholar.

94 Ibid.

95 Posner, R.A., Catastrophe (Oxford University Press: 2004)Google Scholar.

96 Reynolds, J. L. and Fleurke, F.M.Climate Engineering Research: A Precautionary Response to Climate Change?CCLR (2) 2013, 101107 Google Scholar.

97 Hartzell-Nichols, L., ‘Precaution and Solar Radiation Management15 Ethics, Policy & Environment (2012), 158 et seq, at page 166CrossRefGoogle Scholar.

98 J. L. Reynolds and F.M. Fleurke (2013), supra n. 96, at 106; R.A. Posner (2004) supra n. 95; Sunstein, C. R., Worst-Case Scenarios (Harvard University Press: 2007)CrossRefGoogle Scholar.

99 This has also been emphasised by the CJEU. See e.g. Case C-77/09 Cowan Comércio International e Serviços Lda v. Ministero della Salute [2010] I-13533, para. 71.

100 See for example Dir. 1999/93 on baby food [1999] OJ L 124, p. 8, fourth recital: ‘Whereas taking into account the Community’s international obligations, in cases where the relevant scientific evidence is insufficient, the precautionary principle allows the Community to provisionally adopt measures on the basis of available pertinent information, pending and additional assessment of risk and a review of the measure within a reasonable period of time’.

101 Ibid. See also Case T-74/00 Artegodan GmbH v. Commission [2002] ECR-II 4945.

102 Article 7 of Reg. (EC) No. 178/2002 contains the first legal definition of the precautionary principle under Community law. It states: 1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment. See also Commission of the European Communities, Communication from the Commission on the Precautionary Principle, COM(2000)1 fin. See also the related opinion of the Economic and Social Committee on the ‘Use of the Precautionary Principle’ 2000/C/268/04. 2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The matters shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.

103 Rio Declaration on Environment and Development 31 International Legal Materials (1992), 874 et sqq, Principle 15.

104 Somsen, H., ‘Cloning Trojan Horses: Precautionary Regulation of Reproductive Technologies’, in Brownsword, R. and Yeung, K. (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing: 2008), at 221 Google Scholar.

105 Fleurke, F. M., Unpacking Precaution: a Study on the Application of the Precautionary Principe in Europe (Edward Elgar, forthcoming)Google Scholar. PhD version on file at the University of Amsterdam, 2012, at 34 et seqq.

106 An example of this is the qualitative standard of Article 6(3) of the Habitats Directive as discussed above.

107 UNFCCC 1771 UNTS 107, 9 May 1992, in force 21 March 1994, Article 3.3.

108 Reynolds and Fleurke (2013), supra n. 96 above.

109 Ibid

110 de Sadeleer, N., Environmental Principles – From Political Slogans to Legal Rules (Oxford University Press: 2002)CrossRefGoogle Scholar., Scott, J., ‘The Precautionary Principle before the European Courts’ in Macrory, R., Principles of European Environmental Law (Europa Law Publishing, 2004), 5175 Google Scholar; Peel, J., Precaution - A matter of principle, approach or process?The Melbourne Journal of International Law (2004) 5, 483501 Google Scholar. F.M.Fleurke (2012), supra n. 73.

111 See e.g. Case C-6/99 Association Greenpeace France and Others v Ministère de l'Agriculture et de la Pêche and Others [2000] ECR I-01651; Case C-473/98 Toolex [2000] ECR I-5681, paras 46 and 47, Case C-192/01 Commission v. Denmark [2003] I-9693 and Case C-219/07 Raad van State, the Nationale Raad van Dierenkwekers en Liefhebbers VZW [2008] ECR I-4475.

112 Case T-13/99 Pfizer Animal Health v. Council [2002] ECR II-3305, para. 143; Case C-236/01 Monsanto, para. 113; Case C-192/01 Commission v. Denmark, para. 51.

113 See e.g. Case C-192/01 Commission v. Denmark, para. 48. The CBD ban mentioned earlier should be viewed rather as an political than a legal expression of the precaution.

114 See for example Case T 74/00 Artegodan, paras 199-200.

115 In Case T-13/99 Pfizer para. 410, the CFI laid emphasis upon cost-benefit analysis as a ‘particular expression’ of the proportionality principle

116 An example of this type of regulation is Directive 2001/18/EC on the Deliberate Release of Genetically Modified Organisms [2001] OJ L 106.

117 F.M. Fleurke (2012), supra n. 73. In the literature the need for public participation and deliberation is also emphasised, see e.g. Fisher, E., ‘Framing Risk Regulation: A Critical Reflection’ (2013) 4 European Journal of Risk Regulation, 125 CrossRefGoogle Scholar; Weimer, M., Applying Precaution in EU Authorization of Genetically Modified Products – Challenges and Suggestions for Reform,” European Law Journal (2010) 16 (5), 624 et seqqCrossRefGoogle Scholar.

118 Consider for instance, the well-known termination problem (once a climate engineering measure has been taken (particularly SRM measures) it might be difficult stop) that in violation with the condition that precautionary measures should be provisional as to allow monitoring and re-assessment.

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