Regulating Geoengineering: Applications of GMO Trade and Ocean Dumping Regulation.

• Author: Quinby, Elizabeth F.
• Position: Genetically modified organisms

TABLE OF CONTENTS I. INTRODUCTION 212 II. BACKGROUND 216 III. ANALYSIS: WHY EXISTING INTERNATIONAL 220 LAW WOULD NOT ADEQUATELY REGULATE GEOENGINEERING A. Existing International Laws 220 1. The United Nations Framework 220 Convention on Climate Change (UNFCCC) 2. The Kyoto Protocol 222 3. The Paris Agreement 223 4. The Environmental Modification 225 Convention 5. The UN Convention on the 226 Law of the Sea B. Unique Challenges of Regulating 228 Geoengineering IV. SOLUTION 230 A. Analogy to International GMO 233 Trade Regulation 1. Notification System 236 2. Clearing House and Risk 236 Management Mechanisms 3. Approval to Conduct Experiments 237 4. Polluter Pays Principle 238 B. Analogy to Ocean Dumping Regulation 240 1. Permit System 242 2. Research and Monitoring Program 242 V. CONCLUSION 243 I. INTRODUCTION

As efforts to reduce greenhouse gas emissions look increasingly inadequate, scientists have begun to consider geoengineering--the deliberate, large-scale manipulation of the environment--as an emergency solution to curb anthropogenic climate change. (1) Geoengineering presents many challenges for international law, mostly because of its unknown nature, relative ease of enactment by a single state or entity, and likelihood of causing trans-boundary effects. (2) These challenges also raise ethical and social questions beyond the scope of geoengineering's technical feasibility. (3)

There are two main categories of geoengineering: Carbon Dioxide Removal (CDR) and Solar Radiation Management (SRM). (4) CDR proposals envision removing carbon dioxide from the atmosphere and storing it underground or in the ocean. (5) Examples of CDR technologies include carbon capture and storage, (6) enhanced weathering strategies, (7) and direct air capture. (8) Proposed SRM techniques aim to reduce the amount of solar radiation absorbed by the Earth by increasing the reflectivity of the Earth's surface or by imitating the global cooling effect caused by volcanic eruptions by spraying reflective participles into the stratosphere. (9) This technique would increase the reflectivity of clouds by sowing them with seawater droplets. (10) This Note focuses on regulating SRM due to the dilemma it presents to regulators: SRM is cheaper and faster acting than CDR, but risks causing further environmental harm to the planet. (11) Unilateral SRM implementation could affect precipitation patterns in other regions and "may not appropriately address the global scale" of climate change. (12)

One of the major political, ethical, and legal challenges of regulating SRM is that scientists believe it could disparately impact global temperatures and precipitation levels, potentially causing negative side effects in some regions of the world. (13) Geoengineering, because of its relatively inexpensive nature, provides states with the opportunity to act unilaterally in ways that may therefore disparately impact other states. (14) For example, SRM deployed in one country could unevenly alter global temperature and precipitation levels in other regions of the world, impacting other regions' ecosystems, agriculture, and industries. (15) Another challenge is that if SRM efforts were to be deployed and then discontinued, climate change would likely accelerate far beyond its current trajectory. (16) One estimate warns that failing to sustain geoengineering, once implemented, could result in global warming at a pace twenty times greater than today. (17)

Currently, there are no international laws that explicitly regulate geoengineering. (18) While geoengineering would likely lie within the purview of several international environmental treaties, including the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, the United Nations Convention on the Law of the Sea (UNCLOS), the Kyoto Protocol, the Convention on Biological Diversity (CBD), and the Environmental Modification Convention (ENMOD), these existing treaties would inadequately regulate geoengineering. (19) Existing regulatory frameworks would at most regulate geoengineering intended as a weapon and would not prohibit geoengineering research aimed at reducing harm to humans and the environment. (20)

A comprehensive regulatory framework must be enacted eventually to ensure that states adequately research, coordinate, and exercise mutual restraint before enacting geoengineering. Without comprehensive regulation, states may unilaterally undertake geoengineering in ways that could harm other states that may not have consented to the geoengineering efforts. While most scholars agree that specific geoengineering research and implementation regulation is needed, there is no consensus as to how to accomplish such regulation. (21) Some believe that geoengineering regulation should be developed through existing international legal institutions, such as the creation of a new protocol to the UNFCCC or of an entirely new international governance structure specifically for geoengineering. (22) Others believe norms should develop from the bottom up, as to avoid "premature, poorly-crafted binding rules." (23) These proposals often include coordinated research efforts and a ban on geoengineering research and deployment above a certain level. (24)

US scientists have already begun advocating for a ground-up regulation regime. In January 2017, researchers from the U.S. Global Change Research Program (USGCRP), a US executive office that oversees federally funded climate research, asked Congress to provide funding for a geoengineering research program. (25) The USGCRP's research program plans to "provide[] insight into the science needed to understand pathways for climate intervention or geoengineering and the possible consequences of any such measures, both intended and unintended." (26) In its report, the USGCRP supported the idea of scientist-directed norm creation, noting the importance of "laying a science and governance foundation that would allow potential future experiments to be conducted in ethical and responsible ways." (27) The report also noted "the need to understand the possibilities, limitations, and potential side effects of climate intervention... with the recognition that other countries or the private sector may decide to conduct intervention experiments independently from the U.S. government." (28) This push to research geoengineering from the scientific community will help establish norms that can later establish an international regulatory scheme, once it appears that large-scale geoengineering projects are imminent.

This Note proposes that once sufficient norms have been established from the ground up, geoengineering regulation should be modeled after aspects of both marine dumping and international genetically modified organism (GMO) trade regulations. Existing international GMO trade regulations mandate trans-boundary exporters of genetically modified organisms to adhere to a notification system. They also require exporters to register all relevant information with a clearing house. Additionally, ocean dumping regulations provide a useful analogy because of ocean dumping's relative ease and low cost, as well as its clear potential for harmful transboundary impacts. A compensation system for transboundary harms that result from unilateral geoengineering efforts should be created to discourage states from enacting geoengineering individually and prematurely.

2. BACKGROUND

   In the last century, the average temperature of the Earth's surface has increased by 0.78[degrees]C. (29) Climate change models predict that global surface temperatures will continue to significantly rise during the twenty-first century. (30) The majority of scientists believe that this global warming trend is mainly caused by human activities that release greenhouse gases such as carbon dioxide ([CO.sub.2]) into the atmosphere, fueled by industrialization. (31) Greenhouse gases let sunlight into the atmosphere, but they prevent heat from exiting it, resulting in increased global and atmospheric temperatures. (32)

   Global warming presents many threats to the environment and to humanity. Unless climate change is mitigated, Earth is likely to continue to experience a myriad of environmental effects, including warming temperatures, rising sea levels, changes in precipitation, and glacial retreat. (33) Climate change is also likely to cause an increase in extreme weather events, such as droughts, heat waves, floods, and heavy snowfall. (34) These climate conditions might have further-reaching consequences, potentially resulting in species extinction, ocean acidification, lowered crop yield, food insecurity, and rising sea levels that could render certain areas of the world uninhabitable. (35)

   Over the past twenty years, countries around the world have come together to discuss ways to mitigate and adapt to climate change. (36) Adaptation involves adjusting to the effects of actual or expected climate change, while mitigation involves limiting future climate change through "fundamental changes in the way that human societies produce and use energy services and land." (37) Adaption and mitigation implicate different timescales: adaption has the capacity to affect climate change risks in the near future, while mitigation has mostly long term benefits. (38) Reducing human fossil fuel consumption is a commonly discussed method of mitigation. (39) This can be accomplished by switching to different, non-carbon energy sources, such as wind, solar, and nuclear energy. (40) Other frequently discussed means of mitigating climate change include expanding forests to remove [CO.sub.2] from the atmosphere and making buildings more energy efficient. (41) These efforts, however, have not spurred nearly enough progress in mitigating climate change and reducing global warming. (42)

   More drastic action is required to reduce carbon emissions and mitigate global warming. Geoengineering is being increasingly...