International waters don’t belong to anybody, but everybody is connected to them. Like the global burden created by greenhouse gas emissions from any one country, company or individual, what a single country or corporation chooses to put into the ocean as a climate change solution could be felt by the global community, if it turns out to have negative consequences on ocean chemistry or ecosystems.
In this final installment of our deep dive into the potential and risks of ocean carbon dioxide removal (CDR) techniques, we consider how this nascent industry should be monitored and regulated. We will take a look at the existing international legal frameworks relevant to ocean CDR – how they originated, how they apply, who is responsible for enforcing them, and what oversight needs to be put in place before these technologies start to scale up.
“We sort of have a chicken and egg problem because we need the research to happen, but we need the legal framework to facilitate the research and ensure it’s conducted in a scientifically sound way that minimizes risks to the environment and to society.” - Romany Webb, Sabin Center for Climate Change Law, Columbia University
Related Content
Episode 65: Can oceans save us? Part I: Using oceans to pull more CO2 from the air
Episode 66: Can oceans save us? Part II: The tricky science of ocean carbon capture
Full Transcript and References
[00:00:00] James Lawler: Welcome to Climate Now, a podcast that delves into the scientific ideas, technologies, and policies that will help us address the global climate crisis and reach a net zero future. I’m your host, James Lawler. If you find today’s episode interesting, you can find all of our content, including educational videos, newsletters providing in-depth analysis of current climate and energy related events, and partnership opportunities at our website, climatenow.com.
[00:00:33] This is the third and final part of our series on ocean carbon dioxide removal, also known as ocean CDR, which is a family of techniques and technologies that use the ocean to capture and store carbon dioxide. Joining me is guest host of this series Wil Burns, who is a visiting professor of environmental policy and culture at Northwestern University, and ocean CDR policy expert.
[00:00:54] Wil Burns: Together, we’ve been speaking with scientists and entrepreneurs in the growing ocean CDR industry. We’ve discussed methods such as using complex chemistry to turn sea water into a chemical magnet for carbon, to growing carbon eating kelp farms. There are a lot of possibilities, but there are also some big challenges.
[00:01:13] In part two, we looked at how even the simplest ocean CDR techniques like seaweed cultivation require complex research and monitoring to ensure they are offsetting as much carbon in theory as in practice, and that they’re not doing more harm to the oceans than good.
[00:01:31] James Lawler: In this episode, we will explore another complexity: who would be in charge of doing this monitoring, or regulating what kind of CDR is permissible, given that any one company or nation’s activities could impact the entire ocean.
[00:01:44] Our first guest is Romany Webb, a lawyer and climate change policy expert, whom we spoke with about existing legal frameworks that were put in place to protect the oceans from industrial harm, and how they might apply to the nascent field of ocean-based CDR.
[00:02:00] Here is Romany setting the stage for us on the current international agreements that might pertain to ocean carbon dioxide removal.
[00:02:06] Romany Webb: I mean, in the legal world there’s really a lot of uncertainty, because there’s currently no dedicated, comprehensive legal framework specific to ocean carbon removal, either internationally or domestically here in the US and in many other countries as well.
[00:02:23] In recent years, there has been an attempt to regulate specific ocean CDR techniques, in particular ocean fertilization, under a number of international environmental agreements.
[00:02:34] Wil Burns: Ocean fertilization, since we haven’t explored it yet in this series, is a biological form of ocean CDR in which you dump nutrients like iron into the upper level of the ocean, in order to stimulate phytoplankton production. Phytoplankton are microscopic ocean plants. They photosynthesize and trap carbon. So theoretically, the more phytoplankton you have, the more CO2 they’ll absorb. Okay. Now back to Romany on the ocean-based international agreements that do exist, and how they apply.
[00:03:08] Romany Webb: So those key ones, just to give you a few examples that I spend a lot of time thinking about, are the Convention on Biological Diversity, the London Convention and Protocol, and the United Nations Convention on the Law of the Sea.
[00:03:20] James Lawler: And could you tell us what each one of those is?
[00:03:23] Romany Webb: So the Convention on Biological Diversity, as the name suggests, is focused on sort of conserving and protecting biological diversity. It includes a number of provisions around transboundary environmental harm. So addressing situations in which an activity in one country could harm the environment in another country or the global commons like the oceans. Back in 2008, the parties to the Convention on Biological Diversity adopted a decision in which they recommended that countries avoid ocean fertilization until benefits and risks had been fully assessed, and an effective control or regulatory mechanism had been put in place.
[00:04:03] Following that in 2010, the parties adopted a second decision, which applies more broadly to geoengineering activities, and again says countries should avoid those activities until their risks have been fully assessed and there is a regulatory framework in place. Both of those decisions are not legally binding, and they both include a specific exemption for small scale controlled research projects.
[00:04:28] James Lawler: Who are the parties to that agreement? How broadly adopted is that agreement?
[00:04:32] Romany Webb: Yeah, it’s actually one of the more broadly adopted international agreements across both the developed and the developing world. Certainly much broader membership than some of the other international agreements that are potentially relevant here.
[00:04:45] Wil Burns: Except us, right?
[00:04:46] Romany Webb: Yes. Except the United States.
[00:04:49] Wil Burns: Minor details.
[00:04:50] James Lawler: What’s the impact of that? I mean, the fact that the US is not party to CBD.
[00:04:54] Romany Webb: Yeah. So the US is not a party. The two decisions that have been adopted actually are expressed in broader terms. So they say they recommend that neither the parties, nor other governments, which would include the US, engage in these activities. But it is just a recommendation. It’s not a legally binding direction. And, you know, given past experience with the US in the international community, one would not expect the US to necessarily listen to that recommendation.
[00:05:24] So it doesn’t have a lot of force, particularly in the US, but even more broadly, it doesn’t have a lot of force.
[00:05:30] James Lawler: So just to recap, this Convention on Biological Diversity is about protecting marine life. And it recommends that signatories avoid ocean fertilization and geoengineering, including OAE, or ocean alkalinity enhancement projects, until further research has been done.
[00:05:46] It doesn’t have much teeth, but it is not the only international regulation. There’s also the London Convention and Protocol.
[00:05:53] Romany Webb: The London Convention and Protocol have more limited membership than the Convention on Biological Diversity. The US is actually a party to the London Convention, but not to the protocol. Both the convention and the protocol deal with ocean dumping.
[00:06:08] And the protocol is really sort of an update to the convention. The idea is that the protocol will replace the convention once it’s been adopted by all of the parties to the convention. But that hasn’t yet happened, and so currently both instruments continue to operate. They both apply to ocean dumping, which they define to mean the deliberate disposal of waste or other matter in the ocean.
[00:06:31] There’s some uncertainty as to whether different ocean CDR techniques might involve dumping and when they involve dumping. In 2008, the parties to the London Convention and Protocol adopted, again, a non-binding resolution, which says that ocean fertilization does fall under the instruments, and the resolution draws a distinction between ocean fertilization research and non-research projects.
[00:06:56] With respect to research, it says those projects should be reviewed on a case by case basis. And in 2010, the parties to the London Convention and Protocol adopted a framework to guide that assessment. And the framework says that countries should only allow research projects if there are conditions in place to minimize environmental harms and ensure that the scientific benefits of the research are maximized.
[00:07:20] With respect to non-research projects, the 2008 resolution says that such projects should not be allowed, but again, the resolution is not legally binding. Building on the 2008 resolution and the 2010 assessment framework, in 2013, the parties to the London Protocol, which is a relatively small group of countries, around I think it’s 55 or 60 countries [53 parties], adopted an amendment, which is really intended to create a new regulatory framework for so-called marine geoengineering activities.
[00:07:52] And basically the amendment prohibits the placement of matter in the ocean in connection with certain listed marine geoengineering activities. At the moment, only ocean fertilization is listed, and there is a framework through which countries can permit ocean fertilization research projects.
[00:08:10] That amendment hasn’t yet entered into force, it has to be ratified by two thirds of the parties to the London Protocol to enter into force, and so far, I think that it has been ratified by five or so. So there’s still a way to go before that takes effect.
[00:08:24] Wil Burns: It seems like the resolutions that the London Convention has adopted would be kind of good news, bad news if you were a startup company in the ocean CDR world, right? The good news is that you don’t get that nasty dumping label for what you’re doing, but the bad news is you can’t try to sell carbon credits, right? ‘Cause there can’t be a commercial motivation.
[00:08:45] So, if a startup wanted to go out and dump iron filings or put limestone in the ocean or seaweed, could it argue: ‘Yes, we’re dumping, full scale, and we wanna get a permit,’ and would the convention and the protocol allow them to apply for and potentially obtain permits to do commercial large scale dumping with these approaches?
[00:09:12] Romany Webb: Yeah, it’s a really good question. It depends on the material that they’re using because the London Convention and Protocol both allow parties, countries that are party to those instruments, to permit dumping in the ocean.
[00:09:25] Neither instrument imposes a ban on dumping. Under the London Convention, countries can permit the dumping of anything except for eight blacklisted substances. Things like radioactive materials, things that are seen as being very harmful to the environment. The London Protocol takes sort of the opposite approach.
[00:09:44] And it says countries can’t permit the dumping of anything, except for these eight white listed substances that are listed in an annex to the protocol. So in the case of the convention, you know, you look at what you are proposing to dump into the ocean, see if it’s on the blacklist, and if it’s not then you could get a permit.
[00:10:03] And that, I think, would include a lot of the materials that are proposed for use in things like ocean fertilization and ocean alkalinity enhancement, don’t fall into any of the categories on that blacklist. So you could get permits. In the case of the London Protocol, it’s a bit more restrictive because you have to be dumping one of those listed substances.
[00:10:24] And some initial research that we’ve done looking, for example, at the materials that are typically proposed for use in ocean alkalinity enhancement, don’t fall within any of those listed categories. And so you potentially couldn’t get a permit for that. It’s a lot about what you are proposing to dump, also where you’re proposing to dump makes a big difference, because as I said, only a relatively small number of countries are party to these instruments and sort of enforce it.
[00:10:48] And so if you’re not operating in their territory, loading the stuff onto a vessel in one of their ports, or using a vessel that’s registered with them, potentially the London Convention and Protocol wouldn’t apply.
[00:11:00] James Lawler: So just to break down the geopolitics so far, there is no specific global framework, no set of common rules in place, for regulating ocean CDR yet, because it is so new.
[00:11:10] It could fall under some existing agreements, the Convention on Biological Diversity, the London Convention and Protocol, and a third treaty, the UN Convention on the Law of the Sea.
[00:11:21] Romany Webb: The UN Convention on the Law of the Sea is often referred to as the constitution of the oceans. It establishes a broad framework for ocean-based activities, and it has an entire section dedicated to, for example, marine scientific research. And so a lot of the provisions in there could, in theory, apply to the testing of ocean CDR projects, experimentation with ocean CDR techniques in the ocean. It also has a section on Marine environmental protection and includes provisions requiring countries to prevent and mitigate and manage marine pollution.
[00:11:56] And the definition of pollution in the convention is actually very broad. It encompasses really any introduction of substances into the ocean by man either directly or indirectly, that has some negative effect. And there’s somewhat of a debate within academic circles about the scope of that and how that applies in the context of CDR.
[00:12:17] Because on the one hand, carbon dioxide in the marine environment could be considered a pollutant under that definition. And so CDR could really be viewed as a pollution control technique for addressing carbon dioxide in the ocean, or at least some CDR techniques could be viewed in that way. But on the other hand, some CDR techniques could be viewed themselves as a source of pollution, something like ocean fertilization and ocean alkalinity enhancement, where you are adding a substance to the ocean. That could be a source of pollution as well.
[00:12:46] Again, a lot of questions and complexity as to how CDR fits within that framework. And then lay it on top of that this notion of different countries being party to different agreements and you know, where you are operating and how you’re operating again has a big impact.
[00:13:00] Wil Burns: Well, just to complicate that a little further, right — how about the potential role of the framework, convention, climate change in the Paris Agreement? Since those are our instruments to address climate change, how would they fit into this kind of polycentric sort of governance, or do they?
[00:13:16] Romany Webb: Yeah, it’s a really good question. The Paris Agreement itself seems to envisage a role for these sorts of techniques. You know, it talks about, for example, enhancing carbon sinks, and it defines sink quite broadly in ways that could encompass, you know, using the ocean through some of these CDR techniques.
[00:13:33] So on the one hand you have the Paris Agreement, which appears to at least implicitly approve of the use of these techniques, and then you have this other set of more ocean-focused agreements that, at least there’s been an effort by the parties to impose restrictions on these techniques. And so reconciling the two I think is a real challenge.
[00:13:51] And then on top of that, you have issues around selling carbon credits, carbon accounting, how do you treat these techniques in, for example, emissions inventories that are required under the Paris Agreement and the UNFCCC, who gets to claim the reductions of an activity that occurs in the middle of the ocean, outside the territory of any country. So we’re just sort of scratching the surface on the complexities here.
[00:14:15] Wil Burns: So there’s one major regulatory challenge: how do you ensure that ocean CDR projects are actually doing what they say? You might recall how one of our guests from part one, the Vice President of asset management at Builders Vision, James Lindsay, described the current status of that challenge.
[00:14:34] James Lindsay: There are 20 standard-setting development organizations with 66 methodologies for 19 different versions of certificates in voluntary and compliance markets. It’s mayhem, right? Like, it’s just gonna be ripe for either intentional misleading, or unintentional issues.
[00:14:51] Wil Burns: You might be surprised to hear a venture capitalist argue in favor of more governance and regulation. But that’s what James Lindsay seemed to be pushing for in our conversation, but he has a clear reason for why it’s so necessary for the industry.
[00:15:05] James Lindsay: Governance with capital G is essential in all elements of carbon trading. And when you’re coming out of areas that have had lots of government changes and various levels of stability, sophistication, and corruption, it will be a mess. I think it all comes down to establishing better, any real standard in practice around carbon credits, because most of these groups are going to be dependent on carbon credits to reach scale as a business.
[00:15:33] We just need some standard out there in a market to be established quickly. And we are, we’re getting more and more nervous. We’re seeing very weird cases where people have been selling blue carbon credits, mainly restoration, where it should be challenged, whether it’s from legal reasons — I, you know, it’s really concerning what we’re seeing out there.
[00:15:51] We’re seeing groups who have sold blue credits that actually didn’t own the underlying land. They didn’t have sovereign rights over it.
[00:15:58] Wil Burns: Minor details.
[00:16:00] James Lindsay: Yeah, it’s just incredible. I mean, just thinking about mangroves alone, like when you’re covering large areas that have had no real land legal title work done in almost a century, which literally we can, we have examples of this where there’s been no one checking the title abstracts, and now it’s being sold and it’s like, well, who on earth verified this? Should it be the corporate entity that’s buying the credits? Probably not, but it needs to be done somewhere.
[00:16:30] James Lawler: So for ocean CDR to work, be it via alkalinity enhancement or upwelling systems or kelp farms, we need a way to independently verify what these projects are doing. James Lindsay says the industry is moving in that direction, but it will require government regulation on some level for technologies or techniques as powerful and wide reaching as those that comprise what ocean CDR could be.
[00:16:54] The regulatory and monitoring frameworks need to develop in tandem with the technologies so that we have the tools to understand what we are doing as we begin to try to do it at scale. Romany Webb, who we spoke to about existing international regulations that protect the oceans, had some thoughts about that question too.
[00:17:12] Here’s Romany Webb and Will, from that discussion on the future of ocean CDR regulation here in the United States.
[00:17:19] Wil Burns: I’m hoping that in the framework of this carbon earthshot, that the US now has, right, where there’s a lot of emphasis on the technology side, I hope they devote enough time to the legal and regulatory side.
[00:17:32] The Obama administration had done an earthshot in the context of solar energy. And the idea was that it would be an all hands on deck approach with all government agencies devoting resources, and a focus to, I think, goals in terms of increasing the deployment of solar energy. And the Biden administration, as part of its dedication to carbon removal, has established an earthshot now in that context with a goal of sequestering, at least a gigaton of CO2 ultimately, and calling on it to help facilitate that, and work with the private sector. And it includes large amounts of funding, right?
[00:18:11] There’s roughly $12 billion for both CCS and CDR in the US budget, direct air capture hubs, and other kinds of cooperative things to make this happen. But again, very little, what I’ve seen in this talks about this, this regulatory approach. Right? And I think as Romany correctly points out, regulation can limit what you can do, but it’s also highly facilitative at times, right? Especially for small companies.
[00:18:40] James Lawler: Well, talk about that, because that’s a little bit counterintuitive. What do we mean when we say, and Romany, feel free to jump in as well, in what ways, I mean, it’s quite obvious how it’s restrictive, but how is it facilitative?
[00:18:52] Wil Burns: Some of these small companies have such limited resources. They find it daunting to even be able to hire legal counsel, or quite frankly to find legal counsel that’s qualified in this context. I’ve dealt with a lot of these companies and had some attorneys that have sat in on this that quite frankly didn’t understand CDR, they were general environmental lawyers.
[00:19:14] I think that if the government provided a clearer kind of regulatory roadmap, it would help those lawyers get up to speed quicker. Right? Second of all, I think that the investment community is holding back in a lot of cases because they don’t feel these companies have an understanding of that regulatory framework and have taken the measures that they need to, and having the government provide that support, start working with companies, feeling out ways to develop models that then would streamline subsequent projects would be salutary, and at the same time, protect the interests of the community in doing so.
[00:19:55] Romany Webb: I mean, certainty is really important. You know, we talk a lot about regulatory certainty and, you know, we saw during the Trump administration, when there was this effort by the administration to roll back regulations in the climate and environment space, a lot of industries actually opposed those rollbacks because of the uncertainty and the complexity that they created. And so creating a regulatory framework that is specific to these activities would create a lot of certainty for these operators and a lot of clarity.
[00:20:23] James Lawler: And so what is the proper, or, you know, optimal context to provide that kind of certainty and monitoring framework? Like, is this best done through some law that needs to be passed? Is it in the United States?
[00:20:37] Romany Webb: Yeah, I mean, I think different people have different opinions on that. My view is that in a legal framework that was ocean CDR, that would take the form of a new piece of legislation that Congress would pass that laid out a permitting framework that laid out, you know, consultation and environmental review requirements that laid out monitoring and addressed issues around, for example, liability, that would be very valuable in terms of providing certainty and clarity.
[00:21:04] You know, I think we’re all painfully aware of how difficult it is to get anything through Congress. And, you know, I’m not sure that this is at the top of their list though, who knows? So, you know, short of that, there are things that could be done within the executive to start to address some of the issues that we’re talking about.
[00:21:20] You know, as I said before, there’s these existing laws that create permitting frameworks that might apply to some of these projects sort of indirectly. So, in the case of ocean dumping, we’re talking about the Environmental Protection Agency, which has an ocean dumping permitting framework that it uses for things like people who wanna dump dredged material into the ocean, fishing operations that wanna dump fish waste into the ocean, and it has an established process for how it reviews applications for permits for those activities. It has not said how it will approach permits for, say, ocean fertilization or ocean alkalinity enhancement. What factors will it consider? What will the timeline look like? How will the environmental review be done? All of those unresolved questions. So that would be a valuable step.
[00:22:08] James Lawler: Well, my question that jumps to mind from that point would be whether we actually know enough about the science to properly describe the right regulation or regulatory framework in which these projects are permittable in the first place. I mean, Will and I have spoke with several academics and practitioners over the last couple weeks who often have differences of opinion as to, sort of, even how to, how to think about the system that one is impacting with the carbon fixing project.
[00:22:41] So even the boundaries of the system in consideration are not well understood. So in that context where we don’t even know how big the box is to regulate, what could one possibly even write in a framework to give certainty?
[00:22:55] Romany Webb: I mean, it’s a good point, and it highlights the need for more research. You know, the reality is we don’t know for sure that a lot of these techniques work. We don’t know for sure that they will remove carbon and durably store it on time scales that have climate benefits. So we need to confirm that for some of their techniques, and we need to do more research into the potential, you know, most of these techniques haven’t been tested in the ocean yet.
[00:23:22] And so it’s really important that that happens. But, you know, we sort of have a chicken and egg problem because we need the research to happen, but we need the legal framework to facilitate the research and ensure it’s conducted in a scientifically sound way that minimizes risks to the environment and to society.
[00:23:39] James Lawler: As Romany Webb explained, in all of these regulations and treaties and verification systems, the most important ingredient is certainty. Governments and communities need certainty that ocean CDR won’t harm the environment. Companies investing in carbon offsetting need certainty that their ocean CDR partners will deliver on their promises, and ocean CDR entrepreneurs need certainty that the science will prove true and their projects will bring enough carbon from the air to the sea without causing harm. And I’ll admit after covering this topic for three episodes, that sense of certainty is pretty far off.
[00:24:14] At first glance, ocean CDR seems like it could be the miracle industry the planet needs right now. Oceans can naturally hold enormous quantities of carbon. There are many potential ways to increase the ocean’s carbon dioxide removal capacity, and some are as simple and economical as cultivating seaweed. So on the one hand, it was a bit disappointing to learn that there’s so much work yet to be done before ocean CDR becomes a true staple of the climate economy.
[00:24:40] On the other hand, this is a brand new industry. And just because it is still developing doesn’t mean it doesn’t hold tremendous potential. James Lindsay is one of the most skeptical people that Will and I spoke with during this series, but his company is also investing in ocean CDR and helping others to do the same.
[00:24:55] He believes in its potential, but it is a long term investment, one which may not pay off for many years, but when it does, could pay off in a big way and be a key part of the climate solution. Personally, I’m excited to see what happens.
[00:25:15] That’s it for this episode of the podcast. If you’d like to get in touch, email us at contact@climatenow.com or tweet us @weareclimatenow. We hope you’ll join us for our next conversation.
[00:25:28] Climate Now is made possible in part by our science partners, like the Livermore Lab Foundation. The Livermore Lab Foundation supports climate research and carbon cleanup initiatives at the Lawrence Livermore National Lab, which is a Department of Energy applied science and research facility. More information on the foundation’s climate work can be found at livermorelabfoundation.org.
Can oceans save us? Part III: The laws of the sea