NET Legal Pathways

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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 48 ELR 10414 ENVIRONMENTAL LAW REPORTER 5-2018 In particular, the models assume that the world commu- nity will broadly adopt the technology of generating power through burning biomass for energy with carbon capture and sequestration (BECCS) of the resulting emissions.6 This Article assesses the legal and policy challenges of decarbonizing the atmosphere itself through NETs and, in particular, DAC. The Deep Decarbonization Pathways Project’s (DDPP’s) analysis does not discuss the viability and impact of this potential approach because it concluded that the feasibility and sustainability of large-scale NETs, including DAC, remained too uncertain at that time to include in country-level deep decarbonization pathways.7 For example, in its 2014 interim report, the DDPP excluded from its pathway assessments any significant reductions achieved by NETs. According to the DDPP, “[t]he sustain- ability of the large-scale deployment of some net negative emissions technologies, such as BECCS, raises issues still under debate, in part due to the competition in land uses for energy and food purposes.”8 The DDPP’s final report did not rely on NETs or DAC for similar reasons.9 Yet, despite its current technological uncertainty, the potential broad use of NETs could offer significant ben- efits to the deep decarbonization initiative. As the DDPP’s authors note, the availability of NETs such as BECCS or DAC would enable a gentler transition to a low-carbon economy because they would allow for a higher CO2 bud- get in the first half of the 21st century to the extent that those NETs become widely available in the second half of the century.10 More importantly, the widespread use of NETs could help reduce the historical accumulations of atmospheric GHGs that would currently result in poten- tially disruptive climate change even if ongoing emissions dropped to zero. While we now have only an initial sense of the tech- nological efficiency and economic viability of NETs, some early assessments foresee that the wide use of NETs and DAC in the United States alone could lead to a removal of approximately 13 gigatons (Gt) of CO2 per year with ments, Implications of the Paris Agreement for Carbon Dioxide Re- moval and Solar Geoengineering 3 (2016). See also Michael Gerrard, Columbia/SIPA Center on Global Energy Policy, What the Paris Agreement Means Legally for Fossil Fuels 2 (2015) (concluding that the Paris Agreement will require capture of carbon emissions before they enter the air, create new sinks, and “[d]evise, and deploy on a massive scale, technologies to remove the carbon from the air, and sequester it”). 6. Anderson & Peters, supra note 5, at 183. 7. Sustainable Development Solutions Network & Institute for Sus- tainable Development and International Relations, Pathways to Deep Decarbonization: 2014 Report 8-9 (2014) [hereinafter Path- ways Report] (“We have therefore made an assumption in the DDPP that large-scale net negative emissions are still too uncertain to build into our country-level Deep Decarbonization Pathways (DDPs), even though we strongly support research programs that could make net negative emissions a future reality”); id. at 19 (“A disadvantage is that the process of isolating and removing the CO2 from air at low ambient concentrations is technically challenging, currently expensive, and unproven at scale.”) 8. Sustainable Development Solutions Network & Institute for Sus- tainable Development and International Relations, Pathways to Deep Decarbonization Interim Report 2 (2014), http://www.iddri.org/ Publications/Rapports-and-briefing-papers/DDPP%20Executive%20Sum- maryEN.pdf. 9. Pathways Report, supra note 7, at 8-9, 19. 10. Id. at 18-19. a cumulative removal of approximately 1,100 Gt CO2 by 2100.11 In the United Kingdom (U.K.), land-based NETs could potentially remove 12 to 49 megatons (Mt) of carbon equivalent annually, or about 8% to 32% of current emis- sions.12 By comparison, anthropogenic emissions of CO2 equivalent (CO2e) emissions reached a rate or 49 +4.5 Gt per year.13 A clearer legal framework that removes potential regulatory and liability barriers, as well as policies that fos- ter and support the actual implementation of NETs, could encourage their broader deployment at scale in a speedier time frame. The widespread deployment of NET strategies to achieve deep decarbonization would need to surmount several legal hurdles. Given the potentially important role that fully developed NETs could play in reducing CO2 levels in the ambient atmosphere, the removal of these legal obstacles at an early stage could play an important role in improving the odds for their availability as a policy option. For clarity, this Article groups the legal challenges into three catego- ries: construction and infrastructure legal issues, legal con- sequences of operational impacts, and legal requirements for management of process wastes. . These chal- lenges would arise from the disruptions and effects of locating, constructing, and provisioning NET operations and facilities. Some of these barriers might include the assessment and disclosure of the environmental impacts of the siting; construction and operation of industrial-scale NET units dispersed throughout wide geographic regions; or the acquisition of rights to use potentially broad swaths of land or marine surfaces needed by some NETs such as accelerated weathering. These hurdles might warrant the possible use of condemnation powers to obtain those prop- erty rights. - tions. Other obstacles may arise from the anticipated impacts that routine large-scale NET operations might have on adjoining properties and neighbors. For example, broadly dispersed NET operations may affect fragile eco- logical resources or protected species and their habitat. The operators of NET systems may also face potential tort liability if they create conditions that either negli- gently injure other persons and resources or create nui- sances and trespasses.14 11. National Research Council of the National Academies, Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration 62 (2015) [hereinafter NAS Report]. 12. Pete Smith et al., , 18 Envtl. Sci.: Pro- cesses & Impacts 1400 (2016). 13. Climate Change 2014: Synthesis Report, the Fifth Assessment Re- port of the Intergovernmental Panel on Climate Change 5 (2015), available at https://www.ipcc.ch/pdf/assessment-report/ar5/syr/SYR_AR5_ FINAL_full_wcover.pdf. 14. While several states have Good Samaritan laws to provide protection against tort liability for parties who provide assistance to threatened individuals, those laws typically restrict their coverage to medical personnel or specialists who intervene in emergency situations. They also typically require: (1) the rendering of emergency care, (2) gratuitously, and (3) in good faith (with an exception for grossly negligent, wanton, or willful misconduct). Restate- ment (Third) of Torts: Physical & Emotional Harm §42 (2012); Dov

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