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«A Tale of Two Carbon Sinks: Can Forest Carbon Management Serve as a Framework to Implement Ocean Iron Fertilization as a Climate Change Treaty ...»

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A Tale of Two Carbon Sinks: Can Forest Carbon

Management Serve as a Framework to Implement Ocean

Iron Fertilization as a Climate Change Treaty

Compliance Mechanism?

Randall S. Abate†

Any post-Kyoto climate change treaty regime must seek to fully engage the use of carbon sinks to complement emissions reduction

measures in order to comply with the treaty’s mandates. The Kyoto

Protocol did not include avoided deforestation as a mechanism for

earning emission reduction credits. However, reducing emissions from deforestation and degradation (REDD) quickly gained popularity as a viable climate change compliance strategy in the period immediately preceding the negotiations at the Fifteenth Conference of the Parties (COP 15) in Copenhagen in 2009. The Copenhagen Accord is replete with references to REDD as a focus for the international community’s progression toward a binding successor agreement to the Kyoto Protocol.

Ocean iron fertilization (OIF) is an emerging and controversial strategy to promote climate change treaty compliance, and may be the next step in engaging the creative use of carbon sinks to fulfill carbon reduction mandates. Both REDD and OIF must overcome challenges such as developing effective monitoring techniques, ensuring the “permanence” of emission reductions, and avoiding “leakage” of such reductions. Like REDD, OIF could promote a global carbon trading market that may help ensure the success of a post-Kyoto climate change treaty. Unlike REDD, however, OIF is hampered by “moral hazard” and “unintended consequences” concerns associated with its techniques. In addition, to ensure effective regulation of the research and implementation of OIF projects, OIF must overcome significant international law governance challenges.

† Associate Professor of Law, Florida A & M University College of Law. The author presented an earlier version of this paper on a panel at the 2nd Yale-UNITAR Conference on Environmental Governance and Democracy at Yale Law School on September 18, 2010. The author gratefully acknowledges the assistance of Carla Nadal, Nick Claridge, Ani Garibyan, Elliott Jung, Betty Kuo, and Jessica Brunson in preparing this article.

2 [Vol. 1:1 Seattle Journal of Environmental Law Nevertheless, OIF has the potential to build on REDD’s success and become incorporated as another important dimension of a postKyoto carbon market system.

I. INTRODUCTION

Climate change is the most daunting and divisive environmental governance issue that humanity has ever faced. Traditional treaty negotiation and implementation efforts remain relevant to combat this crisis;

however, these channels of governance and diplomacy have fallen short of expectations in significant respects in the past two decades. For example, the refusal of the United States to become a member of the Kyoto Protocol1 has severely undermined the effectiveness of this global greenhouse gas emissions reduction agreement. In addition, the Copenhagen Accord2 does not commit nations to binding emission reduction goals and is a merely aspirational, non-binding international law agreement.

Therefore, the much-anticipated Fifteenth Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 15), held in Copenhagen in 2009, was widely regarded as a failure.3 Relying exclusively on traditional domestic emission reduction strategies will not suffice to meet the ambitious and urgent goals of climate change treaty compliance in the post-Kyoto era. The parties to the Kyoto Protocol recognized the need for flexible compliance strategies and implemented one such mechanism to fulfill this objective in the form of the Clean Development Mechanism (CDM).4 This creative compliance mechanism provides an opportunity for partnerships between developed and developing countries to promote clean energy projects that enable the participating countries to earn credits for emission reductions.5 The international community now has a valuable opportunity to expand the scope of the CDM model and employ market-based mechanKyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature Dec. 11, 1997, 2303 U.N.T.S. 162 (entered into force Feb. 16, 2005) [hereinafter Kyoto Protocol].

2. U.N. Framework Convention on Climate Change Conference of the Parties, Copenhagen, Den., Dec. 7-19, 2009, Copenhagen Accord, art. 6, U.N. Doc. FCCC/CP/2009/L.7 (Dec. 18, 2009), available at http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf#page=4.pdf [hereinafter Copenhagen Accord].

3. Given the recent failures in international climate change negotiations, some commentators have questioned whether the U.N. Conference of the Parties model is the best approach to address the international climate change crisis. See, e.g., John M. Broder, The Last U.N. Climate Extravaganza?, N.Y. TIMES, Oct. 8, 2010, http://green.blogs.nytimes.com/2010/10/08/the-last-u-n-climateextravaganza/.

4. Kyoto Protocol, supra note 1, at art. 12.

5. See id.

2011] 3 A Tale of Two Carbon Sinks isms, consequently providing more flexibility in responding to the climate change crisis. Carbon markets have developed rapidly since the Kyoto Protocol’s emissions reduction commitments entered into force in

2005. Mandatory and voluntary carbon markets have been established.6 The mandatory carbon markets, such as the EU Emissions Trading System, have not drawn on avoided deforestation credits.7 However, within the past few years, voluntary carbon markets based on reducing emissions from deforestation and degradation (REDD) have emerged and are working effectively.8 These developments offer some hope that an international carbon market, bolstered by the authorized use of avoided deforestation credits, could evolve as part of a post-Kyoto climate change compliance regime.





If and when REDD becomes more institutionalized, ocean iron fertilization (OIF) projects may then be able to capitalize on REDD’s successes and become the next step forward in the use of market-based climate change regulation mechanisms. Tradable credits generated from the carbon dioxide sequestered from OIF projects could be part of a climate change compliance regime in much the same manner as avoided deforestation credits in REDD. However, several social, scientific, and legal uncertainties impede OIF’s succession of REDD.

II. REDUCING EMISSIONS FROM DEFORESTATION AND DEGRADATION

(REDD) The Kyoto Protocol’s exclusion of two significant contributing sources to climate change—deforestation and forest degradation—from its regulatory framework is one reason it failed to produce an adequate international response to climate change.9 Reducing emissions of greenhouse gases from traditional industrial sources, while failing to address emissions from other significant sources, created a situation of winning the battle but losing the war against climate change. Deforestation and forest degradation release up to 18 percent of annual global carbon dioCLÉMENT CHENOST et al., Bringing Forest Carbon Projects to the Market, UNEP 24, (2010), available at http://www.unep.fr/energy/activities/forest_carbon/pdf/Guidebook%20English%20 Final%2019-5-2010%20high%20res.pdf [hereinafter CHENOST].

7. Id. at 32.

8. Id. at 35.

9. During the Kyoto Protocol negotiations, REDD was considered and ultimately rejected for inclusion as one of the flexibility mechanisms in the Protocol. See Crystal Davis, Protecting Forests to Save the Climate: REDD Challenges and Opportunities, World Resources Institute, Apr. 23, 2010, http://earthtrends.wri.org/updates/node/303; See also Randall S. Abate & Todd A. Wright, A Green Solution to Climate Change: The Hybrid Approach to Crediting Reductions in Tropical Deforestation, 20 DUKE ENVTL. L. & POL’Y F. 87, 100 (2010) (more than a decade after the exclusion of REDD from Kyoto, “developing countries remain ineligible to earn tradable carbon credits under the Kyoto Protocol for curbing deforestation.”) [hereinafter Abate & Wright].

4 [Vol. 1:1 Seattle Journal of Environmental Law xide emissions.10 Forestry projects under the CDM do not include avoided deforestation but rather are limited to afforestation and reforestation.11 Moreover, CDM forestry projects comprise only 0.4 percent of all registered CDM projects.12 The CDM also has failed to provide developing countries with a meaningful role in addressing global climate change because it is too narrow and administratively stringent to achieve broadbased participation.13 REDD offers an opportunity to build on the CDM’s basic premise of cultivating partnerships between developed and developing nations in meeting climate change commitments, while operating in a more flexible and inclusive manner. REDD represents a critically important partnership between developed and developing countries. It involves developed countries paying developing countries to protect their tropical forests as an international climate change mitigation strategy.14 REDD seeks to establish a financial value for the carbon stored in forests by offering incentives for developing countries to reduce emissions from forested lands.15 Even though the international community was well aware of the important role that REDD could play in climate change treaty compliance, the parties to the Kyoto Protocol rejected the inclusion of this mechanism within the regime’s regulatory framework, citing concerns relating to monitoring and verification of reductions from REDD projects.16 Conceptually, environmental groups opposed REDD on the

10. SIR NICHOLAS STERN, THE STERN REVIEW ON THE ECONOMICS OF CLIMATE CHANGE 171

(2006), available at http://www.hm-treasury.gov.uk/stern_review_report.htm [hereinafter STERN].

11. See Bernard Schlamadinger et al., Should We Include Avoidance of Deforestation in the International Response to Climate Change?, in TROPICAL DEFORESTATION AND CLIMATE CHANGE 53, 53 (Paulo Moutinho & Stephan Schwartzman eds., 2005). “Afforestation and deforestation both refer to anthropogenic conversion of non-forested areas into forested land. The difference is that afforestation refers to projects on land that has not been forested for at least fifty years, while reforestation refers to the conversion of non-forested areas that have not been forested since December 31, 1989.” Abate & Wright, supra note 9, at 94 (internal citations omitted). REDD’s system of generating credits for avoided deforestation provides a more effective response to limiting anthropogenic greenhouse gas emissions from deforestation and forest degradation as compared to the CDM’s limited framework.

12. CHENOST, supra note 6, at 8.

13. Abate & Wright, supra note 9, at 95-97; see generally Ann E. Prouty, The Clean Development Mechanism and its Implications for Climate Justice, 34 COLUM. J. ENVTL. L. 513 (2009); Michael Wara, Measuring the Clean Development Mechanism’s Performance and Potential, 55 UCLA L. REV. 1759 (2008) (discussion of the CDM and some of the criticisms that have been lodged against it).

14. See UN-REDD Programme: The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (2009), http://www.un-redd.org/AboutREDD/tabid/582/language/en-US/Default.aspx

15. Id.

16. Abate & Wright, supra note 9, at 98.

2011] 5 A Tale of Two Carbon Sinks basis that industrialized nations should not be permitted to circumvent their greenhouse gas emission reduction requirements by investing in REDD projects.17 Another major concern is that funds generated from REDD activities could work to the detriment of indigenous forest communities by falling into the hands of corrupt local government officials.18 Several years after being considered and rejected as a Kyoto compliance mechanism, REDD’s role as a potentially valuable tool in the fight against climate change gained popularity at the Eleventh Conference of the Parties of the United Nations Framework Convention on Climate Change (COP 11) in Montreal in 2005.19 “Spearheaded by the Coalition of Rainforest Nations, a group of developing nations with a high percentage of tropical rainforests that support the use of carbon credits to curb tropical deforestation, REDD was proposed as a way to enhance developing nations’ contribution to climate change compliance.”20 REDD also was expressly included as part of the Bali Action Plan at COP 13 in Bali in December 2007,21 which called for “policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.”22 From 2005 to the present, REDD has become a focus of the developing world’s negotiation strategy for a post-Kyoto regime.23 Prior to the linking of forest conservation and climate change compliance through REDD projects, global forest conservation efforts had been limited to non-binding international environmental agreements such as the forest conservation principles developed at the United Nations

17. Erin Myers Madeira, Reduced Emissions from Deforestation and Degradation (REDD) in Developing Countries: An Examination of the Issues Facing the Incorporation of REDD into Market-Based Climate Change Policies 29 (2008), available at http://www.rff.org/RFF/Documents/RFFRpt-REDD_final.2.20.09.pdf.

18. Id.

19. Rhett Butler, Forest Conservation in U.S. Climate Policy: An Interview with Jeff Horowitz, Mongabay.com, Feb. 5, 2010, available at http://print.news.mongabay.com/2010/0205adp_forests_redd.html?print.

20. Randall S. Abate, REDD, White, and Blue: Is Proposed U.S. Climate Legislation Adequate to Promote a Global Carbon Credits System for Avoided Deforestation in a Post-Kyoto Regime?, 19 Tul. J. Int’l & Comp. L. 95, 99 (2010) (internal citations omitted).

21. See Bali Action Plan, Decision -/C.P. 13, available at http://unfccc.int/files/meetings/ cop_13/application/pdf/cp_bali_action.pdf.

22. Id. at art. 1(b)(iii).

23. For a comprehensive summary of the evolution of REDD from Kyoto to Copenhagen, see generally CARBON PLANET WHITE PAPER: THE HISTORY OF REDD POLICY (Dec. 4, 2009), available at http://www.carbonplanet.com/protected_downloads/white_papers/The_History_of_REDD.pdf.



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