Governing the Atmosphere: Towards a Legal Regime for Geoengineering

The world is warming at a rapid pace. In a last-ditch effort to reverse climate change, an artificial cooling agent is injected into the Earth’s upper atmosphere. The attempt backfires horribly, turning the world into an icy, inhabitable wasteland. After the catastrophe, the last vestiges of humanity are left to fight over dwindling resources on a speeding bullet train. This far-fetched scenario describes the plot of Bong Joon-ho’s sci-fi thriller Snowpiercer. However, the film’s seemingly fantastical premise – releasing aerosols into the atmosphere to mitigate the effects of climate change – is increasingly being considered by scientists and politicians as a potential reality. In 2023, the White House Office of Science and Technology Policy issued a report after a 2017 act of Congress that mandated federal research on the technology. [1] International debates over the environmental risks and human rights implications of geoengineering are gaining momentum. And, a number of start-up companies have engaged in small-scale deployment of atmospheric and ocean-based geoengineering – raising concerns of a rogue actor taking the planet’s future into their own hands.

Why engage in a speculative legal analysis of geoengineering, given its significant risks and controversies? The fact is that the technology to implement geoengineering exists, while a policy framework to regulate that technology does not. As this topic continues to emerge as a point of interest in climate change dialogue, it is worthwhile to consider how the legal gaps surrounding it can be filled. 

 

1. What is Geoengineering?

Geoengineering technology can be divided into two main categories, each with its own set of potential techniques and risks. Carbon dioxide removal (CDR) refers to the direct removal of emitted CO2 from the Earth’s ocean and atmosphere. Many proposed CDR methods entail increasing the carbon sequestration capacity of natural carbon sinks. Land-based CDR techniques include direct air capture, soil carbon sequestration, and enhanced weathering. Ocean-based CDR techniques include ocean alkalinization and deep-sea carbon storage. [2] Solar radiation management (SRM) refers to efforts to artificially enhance the Earth’s albedo effect (the planet’s ability to reflect sunlight back into outer space). Proposed SRM techniques include injecting reflective aerosols into the stratosphere, artificially brightening/thinning clouds, and the installation of giant space mirrors. There are natural phenomena that lend credence to the feasibility of some of these techniques. [3] Throughout history, massive volcanic eruptions have resulted in temporary global cooling by releasing particles into the atmosphere that block solar radiation; solar engineering has the potential to mimic this effect. [4] Unlike CDR, SRM can also be rapidly implemented at minimal cost; deployment would cost around $2 billion a year, which is relatively inexpensive compared to the financial costs of climate change and the energy transition. [5]

Despite growing interest in the viability of these technologies, there are a number of potential unintended consequences. Large-scale interference in atmospheric and geological processes could result in unintended climatic consequences such as changes in precipitation patterns, adverse impacts on wildlife, disruptions to natural cycles, and acid rain. Additionally, a major risk of SRM is the concept of “termination shock”. SRM does not remove greenhouse gasses (GHGs) from the atmosphere; it simply minimizes their effects. If SRM is deployed and then stopped suddenly, many experts fear that the buildup of GHGs in the atmosphere could result in rapid warming. [6] For this reason, if SRM is found to have undesirable consequences, simply halting its implementation will likely not be a viable option. Once the decision is made to engage in large-scale geoengineering, the world may need to commit to it indefinitely, or at the very least prepare for a lengthy phase-out process. 

 

2. Relevant Precedent in International Environmental Law

While there is no established international treaty addressing geoengineering, there are a number of binding multilateral environmental treaties that are relevant to this subject and may contribute to a framework for governance. [7]

 

1. Climate Treaties 

The central objective of the United Nations Framework Convention on Climate Change (UNFCCC) is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. Under current emissions scenarios, experts argue that CDR  will be necessary in some form to achieve global climate goals. On the other hand, SRM could be seen as either aligned with or contradictory to the goals of the UNFCCC: does the release of reflective aerosols contribute to the “stabilization of greenhouse gas concentrations in the atmosphere”, or would this constitute “dangerous anthropogenic interference with the climate system”? [8]

While the UNFCCC lacks provisions directly addressing geoengineering, it is widely recognized as the foundational treaty for international climate governance, and could thus serve as a central body to determine what geoengineering activities are permissible. [9]

 

2. Transboundary Harm 

The 1979 Convention on Long-Range Transboundary Air Pollution (CLRTAP) states that signatories have an obligation to mitigate air pollution, defined as any anthropogenic substance “resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment”. A significant reason for the creation of this treaty was acid rain resulting from transboundary sulfur pollution. [10]

Three of CLRTAP’s attendant protocols – the 1985 Helsinki Protocol, the 1994 Oslo Protocol, and the 1999 Gothenburg Protocol – specifically establish limits on sulfate emissions. The extent to which stratospheric sulfate aerosol injection qualifies as noncompliance with CLRTAP would likely depend on the success of this technique in limiting the effects of global warming and whether SRM has any adverse impacts on precipitation. [11]

 

3. Ocean-Based Carbon Dioxide Removal   

The 1982 United Nations Convention of the Law of the Sea (UNCLOS) governs the maritime activities of signatory states and outlines their obligations to protect the ocean environment. [12] While some countries, such as the U.S., are not signatories to the treaty, UNCLOS does still influence the behavior of non-signatory states through the establishment of norms and international customary law. Every state has a sovereign right to exploit and manage the marine resources within its exclusive economic zone (EEZ), the region within 200 miles of its coastline. This might allow states to engage in ocean-based CDR strategies within their EEZ.

The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the London Protocol aim to mitigate ocean pollution, particularly through the dumping of hazardous pollutants. [13] The parties to both agreements have asserted that marine interventions such as ocean fertilization fall within scope of the treaties. In 2013, the parties to the London Protocol approved an amendment regulating marine geoengineering, defined as “a deliberate intervention in the marine environment to manipulate natural processes, including the counteract anthropogenic climate change and/or its impacts”. While this amendment is not yet in force, it is notably the only existing instrument of international law with a specific focus on regulating climate engineering. [14]

 

3. Crafting a Governance Regime

Crafting a governance regime for geoengineering requires a comprehensive framework that addresses the distinct risks and complexities of specific technologies while fostering international cooperation and accountability. Integrating local, regional, and international frameworks can ensure accountability and inclusivity in the regulation of geoengineering while respecting state sovereignty. In Climate Engineering and the Law, environmental legal scholars Micheal Gerrard and Tracy Hester outline their recommendations for addressing the policy challenges associated with CDR and SRM. [15]

In order to determine which actions are permissible, a transparent, democratized global dialogue is  crucial to addressing the ethical concerns of geoengineering. For example, existing climate negotiation forums can serve as a platform to define the scope of permissible research for geoengineering, and allow stakeholders to express their concerns over deployment of the technology. Historically, the UNFCCC’s Conference of the Parties (COP) process has been effective in facilitating constructive dialogue on climate change mitigation, even when negotiations themselves have stagnated. COP could play a similar role in facilitating conversations about geoengineering in the absence of a concrete legal framework. Whether or not states are able to reach a consensus on deployment/non-deployment, these discussions will be crucial in guiding the creation of legislation.

Geoengineering governance should also require that any prospective deployment is reversible; this would help ensure that interventions remain secondary to traditional climate mitigation, and that geoengineering efforts can be scaled back and/or phased out without catastrophic consequences. To assess the potential benefits and risks of deployment, a framework for global authorization is needed, applying cost-benefit analyses, equity considerations, and reversibility standards before deployment is approved. Environmental impact assessments (EIAs) can be established as mandatory requirements for field testing and deployment. EIAs, which require actors to evaluate the ecological and social consequences of specific actions, have both domestic and international legal precedents (for instance, the National Environmental Policy Act in the U.S.). Additionally, safeguarding against "moral hazard"— the risk of geoengineering undermining emissions reduction efforts — requires regulatory safeguards to ensure SRM and CDR are complementary to climate mitigation goals rather than replacements. 

Finally, this legal framework should anticipate the transboundary effects and human rights implications of geoengineering, ensuring states are prepared to manage unintended consequences collaboratively and equitably. International accountability mechanisms must hold states and private actors liable for unauthorized or harmful actions, with penalties for rogue geoengineering activities and avenues for dispute resolution through international tribunals. Together, these principles may help form a foundation for navigating the ethical, legal, and environmental complexities of geoengineering in a rapidly warming world.

 

 

[1] White House OSTP, “Congressionally-Mandated Report on Solar Radiation Modification”, 2023.

[2] IPCC, “Carbon Dioxide Removal”, n.d.

[3] NOAA, “Solar radiation modification: NOAA State of the Science factsheet”, 2024.

[4] USGS, “Volcano Watch – The Pinatubo Effect: Can geoengineering mimic volcanic processes?”, 2011.

[5] Carrington, Damian. “Solar geoengineering could be ‘remarkably inexpensive’ - report”, 2018.

[6] Parker & Irvine, “The Risk of Termination Shock from Solar Geoengineering”, 2018.

[7] Reynolds, Jesse L. “International Law”, Climate Engineering and the Law, 2018.

[8] UN, “United Nations Framework Convention on Climate Change”, 1992.

[9] id at 7

[10] UNECE, “Convention on Long-Range Transboundary Air Pollution”, 1979.

[11] id at 7

[12] UN, “United Nations Convention on the Law of the Sea”, 1982.

[13] EPA, “London Convention and London Protocol: International Treaties to Prevent Marine Pollution”, n.d.

[14] id at 7

[15] Gerrard, Michael B. and Hester, Tracy. “Conclusions and Recommendations”, Climate Geoengineering and the Law, 2018.

 

Works Cited

White House Office of Science and Technology Policy, 2023. “Congressionally-Mandated Report on Solar Radiation Modification”.

https://www.whitehouse.gov/ostp/news-updates/2023/06/30/congressionally-mandated-report-on-solar-radiation-modification/ (accessed November 12, 2024)

Intergovernmental Panel on Climate Change, n.d., “Carbon Dioxide Removal”.

https://www.ipcc.ch/report/ar6/wg3/downloads/outreach/IPCC_AR6_WGIII_Factsheet_CDR.pdf (accessed November 12, 2024)

NOAA Science Council, “Solar radiation modification: NOAA State of the Science factsheet”, 

National Oceanic and Atmospheric Administration, Climate.gov, 2024.

https://www.climate.gov/news-features/understanding-climate/solar-radiation-modification-noaa-state-science-factsheet (accessed November 12, 2024)

Hawaiian Volcano Observatory, “Volcano Watch – The Pinatubo Effect: Can geoengineering 

mimic volcanic processes?”, United States Geological Survey, 2011.

https://www.usgs.gov/observatories/hvo/news/volcano-watch-pinatubo-effect-can-geoengineering-mimic-volcanic-processes (accessed November 12, 2024)

Carrington, Damian. “Solar geoengineering could be ‘remarkably inexpensive’ - report”, The 

Guardian, 2018.

https://www.theguardian.com/environment/2018/nov/23/solar-geoengineering-could-be-remarkably-inexpensive-report (accessed November 12, 2024)

Parker, Andy and Irvine, Peter J. “The Risk of Termination Shock from Geoengineering”, 2018.

https://agupubs.onlinelibrary.wiley.com/doi/10.1002/2017EF000735#:~:text=If%20solar%20geoengineering%20were%20to,it%20is%20an%20influential%20concept.

Eds. Gerrard, Michael B. and Hester, Tracy. Climate Engineering and the Law, 2018.

https://www.cambridge.org/core/books/climate-engineering-and-the-law/climate-engineering-and-the-law/24EE1BC7233788CD2FBA89C9057E9C15.

United Nations, “United Nations Framework Convention on Climate Change”, 1992.

https://unfccc.int/resource/docs/convkp/conveng.pdf.

United Nations Economic Commission for Europe, “Convention on Long-Range Transboundary 

Air Pollution”, 1979.

https://unece.org/sites/default/files/2021-05/1979%20CLRTAP.e.pdf.

United Nations, “United Nations Convention on the Law of the Sea”, 1982. 

https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

“London Convention and London Protocol: International Treaties to Prevent Marine Pollution”, 

U.S. Environmental Protection Organization, n.d.

https://www.epa.gov/ocean-dumping/london-convention-and-london-protocol-international-treaties-prevent-marine-pollution.