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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 10429 climate engineering, including NETs, could detract from needed initiatives to reduce current GHG emissions into the atmosphere, and the risks of planetary-scale projects to alter the climate pose extraordinarily thorny liability, gov- ernance, and implementation challenges.134 While NETs probably offer the climate engineering strategies that raise the fewest of these concerns, they have nonetheless suffered from U.S. policymakers’ broader disinterest in climate engineering in general.135 Prior federal funding remained modest and focused on basic research concepts (such as modeling of stratospheric releases), and the number of projects is small despite calls by some groups for expanded support under a coordinated research strategy.136 Despite that distaste, scientists and policymakers have begun to discuss the need for climate engineering research in public fora. The National Research Council, for exam- ple, expressly included CO2 removal in its 2015 recommen- dation that the United States should provide significantly more funding for climate engineering research to assess its viability and desirability.137 U.S. federal agencies have also suggested that climate engineering research (at least at the proof-of-concept stage) merits additional research support and financing.138 To achieve CO2 removal at the necessary scale within a relevant time frame, Congress and state legis- latures would likely need to significantly boost the funding available to support climate engineering research propos- als. In establishing funding and selecting projects to sup- port, the federal government and state governments should take care to avoid promoting one particular technology to the exclusion of others and thereby creating a “lock-in” of a designated method. . U.S. policymakers and regulators can take several steps to help reduce barriers to NETs from legal requirements, environ- mental permitting requirements, or environmental impact reviews. These steps, of course, should be taken with a firm 134. See, e.g., Turaj S. Faran & Lennart Olssen, - , 18 Int’l Envtl. Agreements: Politics, L. & Econ. 63-77 (2018), avail- able at https://doi.org/10.1007/s10784-017-9383-8. 135. Oliver Morton, The Planet Remade: How Geoengineering Could Change the World 158-64 (2016) (discussing moral hazard framing and subsequent justifications for climate engineering); Albert C. Lin, Pro- metheus Reimagined: Technology, Environment, and Law in the Twenty-First Century 124-28 (2013); Dale Jamieson, Ethics and Inten- tional Climate Change, 33 Climatic Change 323, 333 (1996). 136. NAS Report, supra note 11, at 90-91 (recommending broader research program and funding for CO2 removal technologies); Royal Society, supra note 28, at 61. See also Center for Science, Technology, and Engi- neering, U.S. Government Accountability Office, supra note 29, at 29 (as of 2011, only nine projects explicitly focusing on climate engineering had received federal research funding). 137. NAS Report, supra note 11, at 90-91. 138. See, e.g., Bob Yirka, , Phys.org, July 22, 2013 (NAS cli- mate engineering project suggested for funding by the U.S. Central Intel- ligence Agency, the National Aeronautics and Space Administration, and the National Oceanic and Atmospheric Administration), https://phys.org/ news/2013-07-cia-co-sponsoring-geoengineering-reversing-global.html; Eli Kinitsch, , Science, Mar. 14, 2009, at 1, available at http://www.sciencemag.org/news/2009/03/darpa-explore-geo- engineering. Our research has not identified any states that are sponsoring independent climate engineering research. expectation that any lowering of these legal barriers will not expose the public or the environment to unwarranted environmental risks. At the least, U.S. regulatory agencies and policymakers, especially EPA and state agencies with delegated author- ity to issue environmental permits, can explore whether to reduce permitting barriers or environmental review dis- incentives for laboratory research or limited field testing of NETs. For example, as noted earlier, EPA could extend its current conditional RCRA and CERCLA exemption for CO2 captured from industrial operations for geologic storage to also include CO2 captured from the ambient atmosphere by DAC operations. For broader deployment or implementation, EPA and state environmental agencies can adopt: (1) standardized approval and review procedures for NETs that use common procedures or similar physical designs, and (2) general permits for NETs that will likely have either small or predictable and controlled impacts to the environment. The president could also issue an Execu- tive Order directing expedited federal review of NET projects and activities. Presidential administrations have ordered expedited review and approval of key pipelines and other major energy infrastructure projects.139 In addi- tion, Congress could adopt legislation to provide favorable waivers or reduced environmental reviews of NET projects similar to the limited federal waiver from state permitting requirements on the same model used for CERCLA.140 More controversially, Congress and state legislatures and agencies can reduce barriers to NETs posed by land acquisition or authorization requirements by utilizing their power to authorize condemnation of property needed for these projects (akin to pipelines, rail corridors, municipal water districts, and flood control projects). This step poses serious risks, as highlighted by the environmental impacts and strong objections caused by other infrastructure proj- ects that relied on condemnation powers exercised by gov- ernment actors or private parties, particularly with pipeline construction and transportation and infrastructure. With appropriate oversight and protective limitations, Congress or state legislatures could also extend that condemnation power to private parties who engage in industrial-scale NET operations authorized by state or federal permits or certificates of convenience (i.e., similar to private condem- nation authority provided to private rail operations, pipe- line construction, and power line corridors). Given the controversial nature of climate engineering and the intense opposition that private condemnation efforts and governmental takings can provoke, however, federal or state governmental authorities should prob- 139. Exec. Order No. 13766, Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, secs. 2 and 3, 82 Fed. Reg. 8657 (Jan. 30, 2017); Exec. Order No. 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects, 77 Fed. Reg. 18885 (Mar. 28, 2012). 140. 42 U.S.C. §9621(e)(1) (“No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section.”). Notably, the ultimate remedial action selected must still ac- count for all applicable or relevant and appropriate state and local standards.PDF Image | NET Legal Pathways
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