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Preserving a Balanced Ocean: Environmental Regulation of Climate Change Mitigation Activities in the Offshore Areas of Developing Countries Dr. Robin Warner Australian National Centre for Ocean Resources and Security Outline of Presentation • Climate Change Mitigation Activities Based on • • the Ocean and their Occurrence in Offshore Areas of Developing Countries Regulatory Framework for Climate Change Mitigation Activities in Marine Areas Strengthening Environmental Regulation of Climate Change Activities in the Offshore Marine Areas of Developing Countries Climate Change Mitigation Activities Based on the Ocean • The damaging effects of anthropogenically • induced climate change on both terrestrial and marine environments have been acknowledged by a succession of expert reports commissioned by global and national bodies The capacity of the ocean to absorb rising levels of carbon dioxide in the atmosphere has been the focus of a number of activities to mitigate the adverse effects of climate change on the environment Sequestration of Carbon Dioxide in the Seabed or Water Column • One of the earliest climate change mitigation schemes • affecting the ocean involves permanent sequestration of carbon dioxide emissions form large point sources such as fossil fuel fired power plants, steel works and fuel processing plants into sub-seabed geological formations or the water column The process involves separating carbon dioxide from flue gases and pressurising it for transport by pipeline or vessel to the sub-seabed storage site eg depleted offshore oil and gas fields and deep subterranean and sub-sea saline aquifers Sequestration of Carbon Dioxide in the Seabed • The principal risk associated with carbon dioxide disposal • in the sub-seabed is the potential for leakage of carbon dioxide and any other substances in the carbon dioxide stream such as heavy metals into the marine environment either during transport to a storage site or after storage. Considerable research has been undertaken by States and corporations in developed countries to assess and minimise the risks associated with sub-seabed sequestration of carbon dioxide and this method of disposal is being implemented in a number of projects around the world. Sequestration of Carbon Dioxide in the Water Column • A less contained form of disposal of carbon • dioxide in the oceans is the injection of carbon dioxide directly into the water column. This involves the introduction of liquid carbon dioxide from ships or pipelines into the sea at depths ranging from 1000 metres to over 3000 metres from the surface. Sequestration of Carbon Dioxide in the Water Column • Scientists have identified a range of adverse • impacts to the marine environment from this method of disposal The effects of this introduction of an alien chemical substance into the deep sea on the benthic ecosystems include asphyxiation and suppression of the metabolisms of species due to acidification of the surrounding sea water and the inability of deep sea organisms to take up oxygen from sea water with a lower Ph level. Open Ocean Fertilisation • The process of open ocean fertilisation uses iron • and other micro nutrients to increase phytoplankton growth in iron and nutrient deficient areas of the ocean in order to promote further draw down of photosynthesised carbon into the deep ocean. There are a variety of risks and uncertainties associated with open ocean fertilisation which have excited concern among scientists and environmentalists. Open Ocean Fertilisation • The effects of stimulating phytoplankton growth • on other marine organisms and ecosystems are poorly understood. Increased phytoplankton growth may boost the production of other greenhouse gases such as nitrous oxide neutralising the positive effects of carbon dioxide drawdown and the sinking of phytoplankton blooms into the deep ocean may reduce oxygen levels at these depths with adverse consequences for fish and other marine organisms. Open Ocean Fertilisation • The sustainability of this activity as a climate change • mitigation option has also been called into question on the basis of the lengthy time frames and huge quantities of iron or other nutrients required for the process to have any positive effects. Notwithstanding the uncertainties and environmental risks associated with open ocean fertilisation, some commercial ventures are interested in the process and have attracted investment for their operations. Open Ocean Fertilisation in the Asia Pacific Region • Open ocean fertilisation trials involving activities within • and beyond the offshore maritime zones of developing countries in the Asia Pacific have attracted criticism from local communities and regional and global organisations concerned that adequate assessment of their impacts on the marine environment and its biodiversity have not been undertaken. One particularly egregious example involves launching open ocean fertilisation trials from plants in the Philippines and Malaysia, taking advantage of their less stringent environmental impact assessment processes to undertake activities which may have adverse effects on the marine environment. Ocean Nourishment Corporation Activities • Ocean Nourishment Corporation, an Australian • based company, has developed technology which involves the injection of urea, a nitrogen compound, into areas of the world’s oceans considered to be nitrogen deficient. The liquid urea is mixed with other nutrients, diluted in sea water and transported via marine pipeline to deep waters off the continental shelf where it is injected into the sunlit layer of the ocean 50 metres below the ocean’s surface. Ocean Nourishment Corporation Activities • ONC claims that the nutrient mix stimulates further growth of existing stocks of phytoplankton through photosynthesis. These organisms after a short life cycle of approximately 5 days die increasing the flux of carbon dioxide locked in their tissues to the deep ocean floor. • ONC asserts that a further benefit of this process is increased fish stocks as phytoplankton are at the base of the aquatic food chain. In other words the process is said to fertilise the ocean fuelling the production of more fish. • The process involves the establishment of an ONC plant on shore and the use of a deep ocean pipeline to transport the nutrient mix to deep waters off the continental shelf. Ocean Nourishment Corporation Activities • In 2007 reports emerged of ONC’s first large scale field • • trial which involved the release of 500 tonnes of urea into the Sulu Sea between the Philippines and Borneo through a pipeline from the Philippines coast. This trial was to be undertaken by ONC in conjunction with two Philippines institutions, the University of the Philippines and the University of San Carlos. The Bureau of Fisheries and Aquatic Resources in the Philippines had issued a permit for the activity to take place without any prior environmental impact assessment or consultation with relevant stakeholders in the local coastal communities, the fishing industry or other sectors of civil society. Ocean Nourishment Corporation Activities • Concerns were raised by local fishing communities, civil • • society groups in the Philippines and environmental NGOs about the potential threats to the marine environment from the ONC trials including the creation of toxic algal blooms and dead zones in the ocean from oxygen depletion. In addition to the Philippines trial, it was also reported that ONC planned to conduct a trial in 2008 involving the release of 1000 tonnes of dissolved urea off Malaysia under similar conditions to the Philippines and that it had also approached Chile and Morocco to conduct trials off both these countries. It appears that a principal reason that developing countries are being targeted as conduits for open ocean fertilisation trials is their less rigorous environmental impact assessment systems. Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • Part XII of the 1982 UN Convention on the Law • of the Sea (LOSC) imposes a general obligation on States Parties to protect and preserve the marine environment (Art. 192). States also have a duty to prevent, reduce and control pollution of the marine environment from any source including the release of toxic, harmful or noxious substances….from land based sources, from or through the atmosphere or by dumping (Art.194(3)) Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • States have a positive duty to take measures to protect • and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species from marine pollution (Art. 194(5) LOSC) The practical issues of environmental impact assessment and monitoring of the risks and effects of marine pollution in all areas of the sea are addressed in Article 204 and 206 of the LOSC which require States to assess as far as practicable the potential effects of planned activities under their control which may cause substantial pollution or significant and harmful changes to the marine environment. Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • The LOSC recognises the role of competent international • organisations such as the International Maritime Organisation (IMO) and diplomatic conferences in supplementing the Part XII framework on marine pollution control with regulatory instruments such as the London Convention and its 1996 Protocol on dumping at sea. Climate change mitigation activities in marine areas are also subject to the evolving body of international environmental law principles including the precautionary approach reflected in Principle 15 of the Rio Declaration and the Oceans Chapter of Agenda 21 and the obligation to conserve marine biodiversity contained in the 1992 Convention on Biological Diversity (CBD) Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • Where climate change activities involve the deliberate • • disposal of waste material at sea they may fall within the scope of the London Convention and its 1996 Protocol. The London Convention applies to disposal of waste material in any area of the water column but not to disposal of such material in the seabed. Dumping of waste materials generated by industrial or processing operations into the water column has been prohibited under the London Convention since 1996 unless the particular material appears on a reverse list of industrial wastes that can be dumped. Carbon dioxide does not appear on this list and therefore its direct injection into the water column is prohibited under the London Convention. Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • The 1996 London Protocol was negotiated to • • replace the London Convention but the two regimes are still operating in parallel. Dumping of waste or other matter at sea is prohibited under the London Protocol except for materials listed in Annex I. Annex I does not include carbon dioxide and therefore its direct injection into the water column is prohibited under the Protocol. Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • Amendments to Annex I of the London Protocol • • permitting storage of carbon dioxide under the seabed were adopted on 2 Nov 2006 at the first meeting of the London Protocol Contracting Parties. The amendments have been supplemented by Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations adopted by the Contracting Parties to the London Protocol at their 2nd meeting in November 2007. The Specific Guidelines take a precautionary approach to the sub-seabed sequestration process requiring Parties under whose jurisdiction or control such activities are conducted to issue a permit for their disposal subject to stringent conditions. Regulatory Framework for Climate Change Mitigation Activities in Marine Areas • The applicability of the London Convention and its 1996 • Protocol to other climate change mitigation activities such as open ocean fertilisation is still unsettled. It is arguable that both these activities fall outside the definition of ‘dumping’ under the Convention and Protocol as the iron or other nutrients are being placed in the water column and on the seabed for purposes other than mere disposal but it can also be argued that these activities are not consistent with the aims of the Convention and Protocol. Regulatory Framework for Climate Change Activities in Marine Areas • The London Protocol Contracting Parties expressed the • view at their Second Consultative meeting in November 2007 that knowledge about the effectiveness and potential environmental impacts of open ocean fertilisation was currently insufficient to justify large scale projects and that these could have a negative impact on the marine environment and human health. They also agreed that open ocean fertilisation falls within their regulatory competence and that they would further study this issue from scientific and legal perspectives. Strengthening Environmental Regulation of Climate Change Mitigation Activities in the Offshore Marine Areas of Developing Countries • In marine areas within national jurisdiction, the • environmental regulation of climate change mitigation activities and the prevention of adverse impacts on the marine environment will depend on the strength and scope of national environmental impact assessment processes In developing countries, implementation of regulatory frameworks for environmental protection of marine areas within national jurisdiction has been variable. Strengthening Environmental Regulation of Climate Change Mitigation Activities in the Offshore Marine Areas of Developing Countries • UNEP estimates that approximately two thirds of • 110 developing countries identified by the World Bank had enacted environmental impact assessment legislation by the mid 1990s. A number of factors militate against the development of comprehensive and rigorous environmental impact assessment systems in developing countries. Strengthening Environmental Regulation of Climate Change Mitigation Activities in Offshore Marine Areas of Developing Countries • Factors which weaken EIA processes in developing • countries include the narrow scope of projects to which EIA applies, the lack of experts trained in EIA, the paucity of financial resources devoted to implementing EIAs and the scarcity of environmental baseline data on which to make decisions (UNEP, Craik). There are also difficulties associated with affected sectors of the community such as the local fishing communities in the ONC case in the Philippines and a lack of transparency in government decision making processes which allow activities to proceed without prior or ongoing EIA. Strengthening Environmental Regulation of Climate Change Mitigation Activities in Marine Areas Issues which need to be addressed to improve the effectiveness of EIA processes in developing countries include: – Localise training in the practical and operational aspects of EIA which focuses on the national legislation and conditions applicable in the relevant country – Diffusion of EIA experience among developing countries within particular regions – Greater opportunities for public participation in EIA processes, awareness raising of the activities which should be subject to such processes – Increased political understanding of the links between rational management of the environment and long term economic development Environmental Regulation of Climate Change Mitigation Activities in Marine Areas Beyond National Jurisdiction • In marine areas beyond national jurisdiction (high seas • and deep seabed beyond national jurisdiction) the London Protocol Parties decision on sub-seabed sequestration of CO2 and the Specific Guidelines on this represent the only environmental protection principles applicable to flag States engaging in climate change mitigation activities in these areas. There is no global body to assess the environmental impacts of all such activities and to recommend the implementation of relevant environmental safeguards by their proponents. Environmental Regulation of Climate Change Mitigation Activities in Marine Areas Beyond National Jurisdiction Recent discussions in UNICPOLOS and the Biodiversity Beyond National Jurisdiction (BBNJ) Working Group on the conservation of high seas biodiversity have been exploring options for a more integrated and cross sectoral environmental protection regime which would provide principles and mechanisms to assess new and emerging uses of these areas such as climate change mitigation activities Conclusions • The urgency and lack of regulation associated with climate change • • • mitigation activities in marine areas poses actual and potential threats to the coastal open ocean and deep sea environments and the conservation of their biodiversity. The interdependence of these components of the marine environment underscores the need for legal and institutional arrangements which allow for integrated protection of the marine environment within and beyond national jurisdiction. The lack of environmental regulation for activities such as climate change mitigation schemes in marine areas within developing countries is a weak link in the protection of the marine environment generally. Enhanced protection of the marine environment within and beyond the national jurisdiction of developing countries is dependent on the creation of more comprehensive and rigorous EIA systems for proposed activities launched in the offshore marine areas of developing countries with the potential for adverse impacts beyond national jurisdiction