Geo-Engineering (GE) is an attempt to intervene in the Earth´s climate system. It refers to “the deliberate large-scale intervention in the Earth’s climate system to counteract man-made climate change”. Solar Radiation Management (henceforth GE), is to mitigate global warming by reducing solar radiation reaching the Earth’s surface through techniques such as stratospheric aerosol injection, aiming to cool the planet by reflecting a portion of incoming sunlight. This could have significant levels of risk concerning its impact on the global climate system, natural ecosystems, weather patterns, biodiversity and human rights, therefore having heterogenous externalities. So far, only the legally binding London Convention / London Protocol (LC/LP) and the Convention on Biological Diversity (CBD) regulates the fertilization of oceans to promote CO2-binding algae, another type of GE. Other regulation on GE is lacking. In June 2023 the European Commission (EC) published their intention to “support international efforts to comprehensively assess the risks and uncertainties of such climate interventions and promote discussions on a potential international framework for their governance, including research into related aspects”.
This blogpost highlights the EU´s potential leading role in the evolving landscape around GE regulation and gives recommendations how the EU can leverage existing mechanisms to address the complexities possible GE regulation entails.
GE as a Market Failure: a public good and its externalities
As excluding individuals or groups from benefiting once the good is provided proves challenging, and the consumption by one does not diminish its availability for others, GE can be classified as a public good. GE has a quick, global effect, could be deployed by a single actor or a small group of actors at a relatively low cost, and would have different impacts on different regions of the world. Individual actors who see the use of GE as beneficial or “pareto-improving” will provide GE without seeking international consent from other states. However, regions experiencing a disadvantage from GE activity, could counteract by using other technologies to absorb radiation by the sun, which would lead to a temperature increase. “These actors (countries, subnational entities or individuals) face high transaction costs when acting collectively to prevent implementation, which puts them at an asymmetric disadvantage”. GE poses a threat to international security, when a single state is using GE technology as a military weapon to alter the climate of another state intentionally. Additionally, GE activity can lead to a disruption of food chains, which in turn has effects on food availability and prices worldwide. Moreover, uncertainty is inherent in the reality that humans are not omniscient and will never possess flawless information to accurately predict the behavior of intricate ecosystems.
Current theoretical regulatory approaches
The LC/LP has developed a “soft law” approach for the governance of marine GE concepts. It is developing this structure and creating a firmer framework under international law. Article 14 of the CBD seeks to impose a blanket moratorium on GE “until there is an adequate scientific basis on which to justify such activities’”
However, approaches to regulate GE are still in a nascent stage. The rather hierarchical structure of international treaties requires strong administrative capacities due to the need for constant monitoring and enforcement. No current international institution can address cross-cutting issues, develop cross-institutional guidelines and address emerging issues, develop general principles and perspectives and promote the exchange of information to address issues that are indirectly related to GE, such as international security and international food supply. As GE will initially be used on a national or regional level, “national law will have a key role to play particularly in the governance of encapsulated GE techniques”, which is also lacking. Research also needs to be included in the framework.
The regulation of GE necessitates a comprehensive approach, addressing social, ethical, legal, and political aspects alongside technical considerations. Under the precautionary principle, GE activity should be banned for the time being because the externalities are too heterogeneous and unpredictable. Article 191 of the Treaty on the Functioning of the European Union (TFEU) establishes the authority for decision-makers to implement precautionary measures in situations where scientific evidence regarding an environmental or human health hazard is uncertain, and the potential risks are significant. Additionally, the “no harm rule” in international law emphasizes states’ responsibility to prevent environmental damage beyond their borders, making international law a starting point for discussions and a check on unilateral actions. An international consensus is crucial for GE provision. The involvement of the scientific community, inclusion of national perspectives and legislation, coordination between bottom-up and top-down approaches, a combination of soft and hard law are advocated to enhance governance mechanisms and regulations to fully address the problems coming with GE.
Recommendations for EU-Engagement
The EU can be a potential contributor, leveraging its experience in comprehensive environmental policies, the European Green Deal, its role in international fora, support for scientific research and innovation. The EU can pursue a holistic approach, encompassing economic assessments, legal frameworks and a sufficient governance structure that includes the
international community, regional actors, private actors or companies, the public and also takes ethical considerations into account. Including GE into the climate legislation will allow flexibility and guidance for the Member States (MS). The EU could adopt a non-exclusive list of criteria, defining the prohibition and its scope, with a regular review of a positive list. Exemptions should be transparent, to encourage broad participation by the MS in decision-making.
The question of governance encompasses more than just legally binding rules. While it must create legal certainty, and establish political legitimacy, it can also only fulfil pragmatic functions such as coordination (Bodle et al., 2013). Co-regulation can also be considered for regulating GE. Co-regulation encourages the active engagement of relevant stakeholders, including scientists, engineers, environmental experts, and representatives from industry and civil society. As it needs primary law as a basis, the inclusion of GE in climate legislation would be the perfect base for such an approach. Through the inclusion of such a mechanism, the EU promotes a bottom-up approach and includes more stakeholders in the regulation of GE. Thus, a possible framework should consider soft law, co-regulation, and self-regulating standards and adopt a bottom-up approach, involving more stakeholders, avoiding a one-size-fits-all framework. The inclusion of GE research in Horizon Europe could also regulate its development, leverage collaborative opportunities, and align with the Union’s objectives. The programme also ensures transparency and accountability in the public funding of research and innovation projects, thus safeguarding the public interest.
As GE is a complex and interdisciplinary field that requires a deep understanding of its environmental, ethical, and social implications, research can help improve the scientific knowledge base, to inform policy decisions and thus make the discourse around GE more flexible. It should not be formulated too explicitly, to avoid lock-in effects, and to leave room for future emerging issues.