Carbon farming as a direction for solving modern climate problems: the search for a legal paradigm
Authors: Kulynych Pavlo 
Published: December 2024

The problem of climate change has not only acquired the significance as a global ecological and socio-economic problem, but more and more citizens are disturbed of it. In recent years, the fight for climate safety has increasingly been seen as a fight for democratic values. After all, only in a democratic state is the fight for climate protection perceived as an unconditional imperative. At the initiative of the citizens of Portugal, the European Court of Human Rights (ECHR) considers the case of Duarte Agostinho and Others v. Portugal and Others (39371/20) regarding emissions of greenhouse gases in Portugal and other 32 states, which, according to the applicants, lead to an increase in the level of global warming and negatively aﬀect the living conditions and health of the applicants. Obviously, the satisfaction of the application of the citizens of Portugal will create a precedent that will allow the citizens of one country to apply to the ECHR for climate damage compensation from any member state of the Council of Europe. Therefore, the growth of the legal capacity of citizens to protect their climate rights determines the need to improve legal mechanisms to strengthen control over the state of the climate.

The negative impact on the climate is caused not only by such generally recognized industrial factors as industrial emissions, use of fossil fuels, etc., but also by many other types of human production activities that were previously not realized or considered insignificant. One of such types of production activity is agriculture.

The issue of preventing or reducing the release of greenhouse gases in agriculture is becoming more and more important in the EU. In particular, in December 2019, the European Union introduced ambitious energy transition program — the European Green Deal, the implementation of which is designed to make Europe climate neutral by 2050. Adequate legal means are being sought in the EU to implement plans to achieve climate neutrality in agriculture as well. Thus, the European Commission plans to introduce an initiative that will include a new green business model to reward land managers for reducing greenhouse gas emissions.

During the last decade, Ukraine's agriculture started also to be the sector with the sharpest tendency to increase greenhouse gas emissions. It is caused by the degradation of lands because of their intensive agricultural and other use, which leads to the release into the atmosphere of carbon accumulated in the soil during the thousand-year process of soil formation.
Unfortunately, the compliance of Ukrainian legislation with EU law in terms of environmental and climate protection can be assessed as initial. In many new or updated national development strategies achieving climate neutrality is declared one of the priority targets. However, the legal acts of Ukraine do not contain eﬀective legal mechanisms for ensuring climate neutrality. There are no norms in the legislation of Ukraine that would regulate the climate-protective use of land, aimed at preventing or at least reducing carbon emissions into the atmosphere in the process of farming.

Farmers of Ukraine also faced the negative consequences of soil degradation. Despite the lack of a suﬃcient legal basis in national legislation, they began to search for ways to minimize such soil degradation by improving methods of soil cultivation in agriculture. One such method is carbon farming. It is a direction of climate protection activities, which involves the use of land resources, in which CO2 is eﬀectively extracted from the atmosphere through plant photosynthesis and preserved in the form of organic matter in the soil and plant residues (carbon sequestration). In recent years, a new type of business activity has emerged in European countries — trading of reduced carbon emissions, and companies have appeared that oﬀer farmers to sell such reduced emissions. Recently, the international company Agreena entered the Ukrainian market, oﬀering domestic agricultural producers to sell to it the amount of carbon retained in soils in the process of carbon farming. The Agreena company provides measurement and independent verification of the amount of carbon retained by a farm in the soil and turns it into a financial instrument in the form of carbon certificates. Such a system encourages those who have excess emissions to pay for it and allows those who reduce these emissions to earn from such reduction.

At the same time, cases of the use of carbon farming technologies by Ukrainian agrarians are occurred solely as an initiative of the farmers themselves, who are guided by the motives of social responsibility, the desire to improve the environment, devotion to democratic values, etc. This state of legal regulation of carbon farming relations is unsatisfactory. Ukraine must significantly improve its climate policy and climate protection legislation in the sphere of regulation of agrarian and land relations.
Obviously, the best option for the introduction of legal regulation of carbon farming is to combine in the legislation clear rules of behavior of the subjects of such relations, the introduction of a system of legal and economic incentives for the subjects to achieve the goal of the corresponding legal regulation, the provision of state support to farmers in the transition to carbon farming technologies, and as well as the implementation of state control over compliance of farmers who received state support in the application of carbon farming technologies with the relevant legal norms. It is expedient to base the formation of legal regulation of carbon farming on the principle of climate neutrality, which provides that any actions of subjects of legal relations must comply with carbon farming indicators established by the state.

However, it is advisable to start the formation of a legal mechanism for the introduction of carbon farming based on «soft» law — a system of legal norms that contain recommendations and incentives for the transition of agricultural producers from traditional methods of farming to the standards of carbon farming. The state should promote the use of carbon farming methods by agrarians by approving and distributing recommendations on use of carbon farming methods by agricultural enterprises and farms in order to systematize and bring to the attention of agricultural producers the available, practice-tested knowledge in the field of modern climate protection farming technologies.

The next step in the formation of legal support for carbon farming should be the introduction into legislation of legal norms aimed at providing economic stimulation of farmers' transition to carbon farming standards. The basis of such norms may be the carbon certification of soil cover of fields declared as lands of carbon agriculture. The legal mechanism for the transition of agricultural producers to the standards of carbon farming should be suﬃciently simple and transparent. For its implementation, it seems appropriate to use the well-functioning system of the State Agrarian Register, which is an online platform for registering farmers who receive state support.

Finally, as part of the legal mechanism for conducting carbon farming, might be provisions that regulate the carbon certification of agricultural producers who have switched to the principles of carbon farming. A clear system of carbon certification will ensure the implementation of eﬀective state control over the achieved volumes of carbon retained in the soil and will contribute to the introduction of targeted stimulation of agricultural producers. In the future, with an increase in the level of eﬀectiveness of state control over the use and protection of land with the use of advanced information technologies such as remote sensing of land and soil, the ratio between the norms of «soft» and «hard» law in the legal mechanism of conducting carbon farming will change to the benefit of the latter.

Key words: climate, human rights, climate policy, green transition, carbon agriculture, land, law.