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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 10426 ENVIRONMENTAL LAW REPORTER 5-2018 supplemental protocol to impose additional restrictions on marine dumping. In particular, in 2013, the Contracting Parties to the London Protocol adopted Resolution LP.4(8), which defines “marine geoengineering” broadly to include “any deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that have the potential to result in deleterious effects. . . .”109 The resolution essentially sets out criteria for adding marine geoengineering activities under a new Annex 4 pursuant to a “positive listing approach” that would not allow marine geoengineering activities listed in that annex to take place.110 As a result, the London Protocol Parties’ declara- tion effectively restricts listed marine geoengineering activ- ities to legitimate scientific experiments under controlled circumstances after a thorough risk review.111 Similarly, the Parties to the Convention on Biological Diversity (CBD) have also sought to ban OIF (as well as other climate engineering activities, including SRM) as a threat to ecosystem resources and species protected under the CBD.112 Notably, these challenges to ocean-based CO2 removal have solely focused on OIF or other technologies that add chemicals or elements to waters in a way that enhances uptake.113 As a result, the legal status of alter- native marine NET approaches that would remove CO2 directly from ocean or coastal waters and then return the treated water to its original location remains untested. C. Legal Obligations Arising From NET Wastes and Emissions As with most industrial processes, the broad-scale imple- mentation of NETs will likely result in the generation of byproducts, wastes, and unwanted environmental con- sequences. Numerous legal restrictions and permitting obligations may be triggered by these secondary emis- sions or impacts, and those legal mandates may constrain joined it. The United States, notably, has joined the London Convention, but it has not subscribed to the London Protocol. International Mari- time Organization, The London Convention and Protocol: Their Role and Contribution to Protection of the Marine Environment (2008), available at http://www.imo.org/KnowledgeCentre/ShipsAndShip pingFacts AndFigures/TheRoleandImportanceofInternationalShipping/IMO_ Brochures/Documents/6%20page%20flyer%20London%20Convention. pdf. 109. London Protocol art. 6 bis. 110. Id. The prohibition on activities positively listed in Annex 4, however, may be lifted if the listing allows the activity to be authorized under a permit. Id. This permitting exception allows the performance of small-scale scientific research in certain coastal marine environments. , IMO Res. LC-LP.2 (2010). 111. London Protocol art. 6 bis. 112. Conference of the Parties to the CBD, Biodiversity and Climate Change (Oct. 29, 2010). The final text of Decision X/33 limits the prohibition to climate engineering projects that might affect biodiversity and that lack transparent and effec- tive governance mechanisms. The final language also includes important exceptions for small-scale scientific research as well as a working definition of “geoengineering.” See also CBD, - latory Framework, UNEP/CBD/SBSTTA/19/INF/2 (Oct. 5, 2015). 113. See discussion supra notes 50-53, re the effectiveness and status of technolo- gies to remove CO2 directly from marine waters. the broadest possible implementation of NETs to achieve deep decarbonization. The benefits of these legal protec- tions for responsible management of environmental harms arising from wastes or byproducts, however, will need to be preserved even if NETs receive their broadest possi- ble authorization. This section assesses some of the most likely legal mandates that will arise from environmental impacts and secondary materials generated by broad-scale NET operations. . An unsurpris- ing byproduct of NETs is, of course, captured CO2. While CO2 is frequently sold and managed as a commercial chemical product or feedstock, the quantities of CO2 that NET would have to remove from the ambient atmosphere would likely dwarf any conceivable market for commer- cial-grade CO2 for industrial uses.114 Some proposed NET processes would potentially convert the CO2 into fuels for transportation or other uses.115 Other processes would per- manently lock the CO2 in mineral basalt formations either in situ into geologic formations or by placement into dis- posal sites.116 At least one test project has directed power plant CO2 emissions to large adjoining algae ponds to pho- tosynthesize the CO2 into biofuel stock.117 But the most common proposed ultimate disposition of captured CO2 is most likely disposal in either deep geologic strata or deep marine waters. As noted above, the disposal of CO2 into geologic strata or marine waters would raise similar issues to proposals to sequester CO2 from CCS operations with industrial pro- cesses and power plants. The aggressive use of NETs, how- ever, would face constraints if the legal framework used for CCS were uncritically applied to captured CO2 from the ambient atmosphere. First, the volume of CO2 from NETs could beggar the amounts of CO2 from industrial CCS. If attainment of the Paris Agreement’s less ambitious 2°C goal would require the capture of 1,800 Gt ambient CO2, even a portion of that amount would exceed the poten- tial CO2 emitted from U.S. power plants alone by several orders of magnitude.118 Second, the current U.S. legal framework for management of CO2 from CCS provides a conditional exemption from hazardous waste regulations 114. This statement assumes that the DAC process would yield CO2 of suf- ficient purity and quantity that it would be suitable for industrial use in the first place. 115. See discussion supra note 40. To the extent that such DAC processes entrain the CO2 in a fuel, the subsequent combustion of that fuel would ultimately release the CO2 back into the ambient atmosphere. As a result, DAC used in this context is only carbon-neutral rather than true CO2 removal. 116. See discussion supra note 58. 117. Power Plant CCS, Capture, http://www.powerplantccs.com/ccs/cap/fut/alg/alg_proj_arizona_public. html (last visited Mar. 19, 2018). 118. As noted earlier, the direct capture of enough CO2 to reduce ambient at- mospheric concentrations by 100 ppm would generate 1,800 Gt CO2. See discussion supra note 75 (NAS Report, supra note 11, estimate). By con- trast, electrical power generated by fossil fuel combustion in the United States generated 1,900.7 Mt CO2 in 2015—by comparison, only 0.1% of the global sequestration total generated by a 100 ppm drawdown of ambient CO2 levels. U.S. EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015, at 3-2 tbl. 3-1 (2017) (EPA 430-P-17-001), avail- able at https://www.epa.gov/sites/production/files/2017-02/documents/ 2017_complete_report.pdf.PDF Image | NET Legal Pathways
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