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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 5-2018 NEWS & ANALYSIS 48 ELR 10415 . In addition to legal questions raised by NET siting, infra- structure, and operations, some of these facilities (particu- larly DAC units) will also likely generate substantial gas product streams and wastes. Such materials will evoke traditional environmental regulatory issues, such as the management and sequestration of potentially vast quanti- ties of captured CO2 (unless the gas is reused as a feedstock or product) and the disposition of wastes generated by the CO2 capture and removal process itself (e.g., spent chemi- cals or other process residues). These legal obstacles to the full deployment of NETs emphasize the environmental side effects and externali- ties of the expected operations. A more remote legal issue, however, may arise from the success (or failure) itself of attempts at large-scale NETs. If a nation or person suc- cessfully deploys significant DAC facilities that materially reduce ambient concentrations of CO2 or other GHGs, those reductions may have substantial negative economic effects on current “climate change winners.” For example, a government or corporation that has invested heavily in the expectation of expanded shipping across the newly opened Northwest Passage may argue that successful NET opera- tions have seriously damaged its property and operational expectations.15 Alternatively, the inept or incompetent implementation of NETs may create its own separate set of damages and legal concerns. To the extent that these spec- ulative legal liabilities arise from the successful mitigation of anthropogenic disruption of the atmosphere, however, the immediate prospects of such claims appear minimal and will not be further considered in this analysis.16 The legal options and pathways to resolve these issues will turn largely on the actual technology selected and the location and manner in which it is used. But the bulk of legal barriers to the widespread deployment of NETs could likely be resolved through the creative use of legal tools that federal agencies have already provided for the capture and sequestration of CO2 from power generation facilities as well as the policy options already developed for the use of CO2 in enhanced oil and gas recovery. The broad use of programmatic environmental impact statements (EIS), Waisman, , 29 Ga. St. U. L. Rev. 609 (2013) (“all fifty states have adopted the [Good Samaritan] immunity [doctrine] in one form or another, and it shows no sign of disappearing any time soon”). These laws appear unlikely to protect DAC operators who negligently cause harm during their operations. 15. J.B. Ruhl, , 97 Minn. L. Rev. 206, 272 (2012) (arguing that climate change winners should not re- ceive legally protected property rights from climate change effects). 16. These potential types of liability may also arise within the larger field of climate engineering, and they could potentially apply to atmospheric ma- nipulation techniques that do not rely on removal of ambient CO2 (e.g., solar radiation management (SRM) and albedo enhancement from marine cloud brightening). See, e.g., Michael Burger & Justin Gundlach, Research Governance, in Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal 269 (Michael B. Gerrard & Tracy Hester eds., Cambridge Univ. Press 2018) (discussions of potential theories of legal liability for climate engineering activities). presumptive model permits, and condemnation powers could remove many of the remaining legal barriers as well. This Article begins by briefly overviewing in Part II the suite of potential technologies that could help directly cap- ture GHGs at a scale that would significantly reduce their concentrations in the ambient atmosphere. Part III outlines the potential legal requirements under current U.S. envi- ronmental laws that might impede the full development and implementation of NET technologies as well as pos- sible bases for legal liabilities that might discourage their development. Last, Part IV offers several potential avenues to minimize these legal hurdles in a way that could help the development of NET strategies without unduly increasing environmental risks or weakening necessary environmen- tal governance obligations, and Part V concludes. II. The Current Status of NETs and DAC Development As noted above, NETs offer a possible strategy to help reduce ambient global CO2 levels while the United States and other nations adopt comprehensive mitigation and adaptation strategies. This part provides a brief description of the fast-growing portfolio of possible NETs currently under development, with an emphasis on DAC approaches. It then assesses some of the relative strengths and weak- nesses of the varied methods. As an initial step, it is worth clarifying the scope of the term “direct air capture” for purposes of this Article. I define DAC to include any industrialized and scalable method to remove GHGs from the ambient atmosphere and either store or reuse those gases, especially (although not always) in a way that does not allow them to escape back into the atmosphere. As a result, this definition does not include various other technologies that attempt to directly offset the effects of anthropogenic climate change without removing atmospheric carbon stocks, such as solar radia- tion management (SRM), carbon capture and sequestra- tion (CCS) from fossil fuel combustion streams, enhanced agricultural or silvicultural carbon uptakes (including afforestation, reforestation, and reducing emissions from deforestation and forest degradation (REDD+)),17 and car- bon-neutral fuels. Within the scope of this definition, NETs fall into four general categories: mechanical DAC of CO2 from the ambient atmosphere; enhancement of CO removal 2 17. UN-REDDProgramme, : [r]educing emissions from deforestation and forest degradation (REDD+) is a mechanism developed by Parties to the United Na- tions Framework Convention on Climate Change (UNFCCC). It creates a financial value for the carbon stored in forests by offering incentives for developing countries to reduce emissions from for- ested lands and invest in low-carbon paths to sustainable develop- ment. Developing countries would receive results-based payments for results-based actions. REDD+ goes beyond simply deforesta- tion and forest degradation, and includes the role of conservation, sustainable management of forests and enhancement of forest car- bon stocks. http://www.unredd.net/about/what-is-redd-plus.html (last visited Mar. 19, 2018).PDF Image | NET Legal Pathways
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