NET Legal Pathways

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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120. Legal Pathways to Negative Emissions Technologies and Direct Air Capture of Greenhouse Gases by Tracy Hester Tracy Hester is a Lecturer at the University of Houston Law Center. Summary Deep decarbonization will have to explore the use of nega- tive emissions technologies (NETs), which include the direct air capture (DAC) of ambient carbon dioxide. NETs capture or consume more carbon dioxide than they emit, and DAC is a subset of NETs that use any industrialized chemical or physical methods to remove greenhouse gases from the atmosphere and then store or reuse those gases, typically in a way that does not allow them to escape. While still nascent, NETs include a wide array of approaches such as biomass energy with carbon capture and sequestration, enhanced weathering of minerals, and the direct mechani- cal capture of ambient carbon dioxide through filters and chemicals. This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., - (forthcoming in 2018 from ELI Press), focuses on the legal pathways needed to accel- erate the development and use of NETs and assure their proper governance. I. Introduction Deep decarbonization will require a fundamental trans- formation of U.S. energy and manufacturing industries, but those sweeping changes alone will likely not suffice. Anthropogenic emissions since the start of the Industrial Revolution have already resulted in concentrations of car- bon dioxide (CO2) in the ambient atmosphere that will lead to disruptive average global surface temperature increases before the end of this century. Simply put, even if current anthropogenic emissions drop to zero, the levels of CO2 already present in the atmosphere will have locked us into rapid and intractable warming.1 Deep decarbonization of future emissions also will not sufficiently offset or respond to damaging physical transitions caused by ongoing cli- mate change that could cause substantial new greenhouse gas (GHG) emissions, such as melting permafrost, reduced arctic albedo, and carbon releases from forest fires.2 To address CO2 concentrations already stockpiled in the atmosphere, deep decarbonization will likely require addi- tional steps beyond simply halting carbon emissions from ongoing economic activities. One potential option under active investigation is ambient CO2 removal through the deployment of negative emissions technologies (NETs), including the direct air capture (DAC) of atmospheric CO2 or other GHGs to sequester them in an inaccessible or inert form or convert them into a commercial product or good.3 Given the enormous challenges facing efforts to adequately reduce current GHG emissions, climate change forecasts and strategies have begun to devote growing attention to NETs as a complement to broad emissions mitigation.4 For example, the United Nations Intergovernmental Panel on Climate Change’s (IPCC’s) latest integrated assessment models suite of 900 scenarios found only a small set of 76 pathways that could attain the Paris Agreement’s target of limiting temperature increases to 2 degrees Celsius (°C) or less, and the vast majority of those models relied on NETs.5 1. Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Synthesis Report §2.4, at 63 (2014) (“[w]arming caused by CO2 emissions is effectively irreversible over multi-century timescales unless measures are taken to remove CO2 from the atmosphere”). 2. Id. §2.2.4, at 62. 3. European Academies Science Advisory Council, EASAC Policy Re- port No. 35, Negative Emission Technologies: What Role in Meet- ing Paris Agreement Targets? (2018); James Hansen et al., Emissions, 8 Earth Sys. Dynamics 577-616 (2017), 4. Robert B. Jackson et al., , 12 Envtl. Res. Let- ters 110201 (2017). 5. Kevin Anderson & Glen Peters, , 354 Science 182 (2016) (“[i]t is not well understood by policy-makers, or in- deed many academics, that [integrated assessment models showing attain- ment of the Paris Agreement’s 2°C goal] assume such a massive deployment of negative-emission technologies,” including assumptions that NETs will bring global emissions to at least net zero in the second half of the 21st cen- tury); Joshua B. Horton et al., Harvard Project on Climate Agree- 5-2018 NEWS & ANALYSIS 48 ELR 10413

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