Subseabed Carbon Dioxide Sequestration As A Climate Mitigation Option For The Eastern United States: A Preliminary Assessment Of Technology And Law (2007)

The alarm has sounded, again. The recently released Summary of the Fourth Assessment Report of the Intergovernmental Panel on Climate Change starkly asserts that climate change is “unequivocal” and primarily caused by human activity. In particular, carbon dioxide emissions are the “most important anthropogenic greenhouse gas,” and “past and future anthropogenic carbon dioxide emissions will continue to impact warming and sea level rise for more than a millennium,” due to the long periods of time required for natural cycles to remove carbon from the atmosphere. While the Panel “expressly avoided recommending courses of action,” experts noted the report “powerfully underscores the need for a massive effort to slow the pace of global climatic disruption before intolerable consequences become inevitable.” In short, actions must be taken now to reduce future carbon dioxide emissions and also to isolate and sequester carbon dioxide from existing sources to prevent its release into the world’s atmosphere. Among the near-term options for removing long-lived carbon dioxide from the atmosphere is the development and deployment of systems for capturing this gas from industrial facilities and electric power plants. While carbon capture is only one option among many that must be explored if we are to achieve stabilized or climate-safe levels of these emissions, it has received much technical attention. Existing domestic power production is the largest source of U.S. anthropogenic carbon dioxide emissions; in 2005 this sector alone generated 41.39% of total carbon dioxide emissions. While it is essential that a transition occur to less carbon-intense forms of energy production, it is also clear that existing sources play a large role in the ongoing problem. Once released, carbon dioxide is climate forcing for very long time periods; therefore, the nearterm deployment of technologies for removing and sequestering carbon dioxide from atmospheric release are critical to achieving long-term climate benefits. But what is to be done with the captured carbon dioxide? A variety of sequestration options, on land and at sea, are under study. All of these options have associated risks and unanswered regulatory questions. On November 27, 2006, steps were taken to move one of these carbon sequestration options forward, as a legal matter. The contracting parties to the 1996 London Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol), a primary international instrument concerning ocean pollution, amended the London Protocol to allow the sequestration of carbon dioxide in subseabed geological formations. In so doing, the parties expressed serious concerns about the negative effects of climate change on the marine environment, and recognized that carbon capture and long-term sequestration technologies can be developed now, to serve as an important near-term option to mitigate these adverse effects. The London Protocol amendments, which became effective on February 10, 2007, with respect to each accepting contract party, remove pre-existing ambiguity about whether this method for carbon dioxide isolation is permitted under international law. This Article describes seabed sequestration of carbon dioxide, and discusses current experience with this technology. It describes briefly some very preliminary technical assessments about its potential for global and U.S. development as one piece of a relatively near-term climate mitigation strategy. The international legal framework on ocean dumping, including the recent London Protocol amendments, is presented and compared with the U.S. domestic law governing ocean dumping, the 1973 Marine Protection Research and Sanctuaries Act (MPRSA). The question whether carbon dioxide sequestration activities are prohibited “dumping” of “industrial wastes” under the MPRSA is evaluated, considering the purpose of the “sequestration,” namely the very long-term isolation of carbon dioxide from atmospheric release. Unfortunately, the MPRSA can be read either to ban sequestration outright, if carbon dioxide is found to be an “industrial waste,” or to allow it, with a permit. Furthermore, the very limited relevant case law related to the Act’s dumping ban contains a cautionary tale. Taking a precautionary approach to the problem suggests that developing available, feasible, near-term carbon dioxide sequestration methods, with the least environmental impact possible, should be a priority. The urgency of the climate change issue, the role of carbon dioxide in particular, and the emerging degree of clarity about the seriousness of the damage to the world’s oceans and other resources all point in the direction of taking sensible steps toward developing sequestration, without waiting for technical certainty. Technical researchers in the United States continue to explore the subseabed sequestration option, as this country draws nearer to a carbon-constrained economy. Because the United States is a primary contributor to world carbon dioxide emissions, and the seabed sequestration option appears increasingly promising, limited amendments to the MPRSA are appropriate. Such amendments should be included as part of a legislative package on climate change, remove existing ambiguities, and allow for near-term in situ testing and development if geologically appropriate offshore sites are found.