Law structures so much of our lives, but can feel inaccessible to those untrained. It is also in flux! How is the law being changed in response to climate change? Which laws can be adapted to suit our climate-changing country and world? And which are unprepared for new challenges?
Today's episode of Carbon Removal Newsroom is hosted by Radhika Moolgavkar, Nori's VP of Supply and Methodology. She is joined by Romany Webb, the Deputy Director of the Sabin Center for Climate Change Law at the Columbia Law School.
They discuss the evolving field of climate law, its critical role in the development of carbon dioxide removal (CDR) technologies, and the unique legal challenges presented by ocean-based CDR methods. Webb highlights the growing interest among law students in climate technology and emphasizes the importance of legal frameworks in addressing climate change. The conversation delves into the complexities of international and local laws governing oceans, the innovative concept of Community Benefits Agreements for climate projects, and the positive feedback on model law proposals intended to regulate CDR activities safely.
The episode underscores the necessity of a diverse portfolio of CDR solutions to combat the climate crisis and explores the legal opportunities and challenges facing the CDR industry’s advancement.
On This Episode
Resources
Sabin Center for Change Law at the Columbia Law School
Connect with Nori
Nori’s other podcast Reversing Climate Change
Nori’s CDR meme X account
Full Transcript
Announcer: You’re listening to Carbon Removal Newsroom, a weekly show about current events in the world of carbon removal, from technology and innovation to policymaking and job growth. Brought to you by Nori, the carbon removal marketplace.
Radhika Moolgavkar: Welcome to the March 12th episode of Carbon Removal Newsroom. I’m Radhika Mulgothkar, VP of Supply and Methodology at NORI. Today, I’m very excited to be speaking with Romani Webb, Deputy Director of the Sabin Center for Climate Change Law, Research Scholar at Columbia Law School, and Adjunct Assistant Professor of Climate at Columbia Climate School. Welcome to the show.
Romany Webb: Thank you. Thanks for having me.
Radhika Moolgavkar: Yeah, it’s nice to have a fellow attorney on the show, though. I’m retired. I gave up my bar. But still, I always appreciate people in the legal field. So it’s really nice to have a guest like you on who has both law and climate in your background. Because obviously carbon removal is at a stage when laws are crucial to its development. So, Romney, you are co-chair of the Climate Change Sustainable Development and Ecosystems Committee of the American Bar Association’s Section of Environment, Energy and Resources. Can you kind of give us a sense of how many people are working in this intersection of law and climate?
And is it a well-established field or is it more developing?
Romany Webb: I think if we’re thinking about folks who are working specifically really focused on climate, it’s still a relatively small body of lawyers. You know, a couple of years ago, actually at an ABA event, John Kerry said, He’s told the audience, you are all climate lawyers now because climate change touches on basically everything that lawyers do, including fields of law that you would not necessarily think of in the same sentence as climate change. You know, like an immigration lawyer might not think they have much to do with climate change, but we know that extreme weather events and other climate induced phenomena are having huge impacts on migration patterns and where and how people live.
You know, corporate lawyers just yesterday, the SEC announced its new climate risk disclosure rule. That will have huge implications for securities lawyers and corporate lawyers advising their clients. Property law, you know, we’ve got areas along the coast that are sinking into the ocean and being eroded away due to sea level rise. They’re going to have to start thinking about climate change. So, you know, whether lawyers like it or not, whether they recognize it or not, they all work on climate in one way or another.
Radhika Moolgavkar: What about the students you work with? Are they showing more awareness of this than maybe the lawyers like me who have been out of school for multiple decades?
Romany Webb: We definitely see a lot of interest in climate and environment more generally amongst students. And in particular, I would say we have a lot of student interest in CDR and other sort of emerging climate tech fields. I think many students see sort of opportunities for optimism in some of these climate tech fields where we have potential solutions or parts of solutions to the climate problem that often don’t get talked about all that much because we’re sort of focused on the doom and gloom. And the seriousness of climate change, which of course it is a serious problem, but we also need to be thinking about solutions.
Radhika Moolgavkar: Yeah, absolutely. So you, yeah, you teed up my next question nicely, which is I was curious if you see carbon dioxide removal as having any meaningful legal differences from other areas of climate law and how you think about CDR in kind of the broader context of the work you do.
Romany Webb: Yeah, the Sabin Center where I work, we work on both climate change mitigation and adaptation. And we have a large program of work focused on CDR and other negative emissions technologies. So we do, for example, a lot of work around methane removal. You know, when you look at CDR and sort of the broader climate solution set, there are certainly similarities in terms of the legal sort of challenges and opportunities there. You know, in some ways, a big DAC facility or a director capture facility is a lot like a big renewable energy installation.
You know, we’re going to have to deal with issues of land access. Construction, local zoning, it might be permitting, environmental permitting issues. It’s not all that different from other types of climate infrastructure development. Where it does get a little different, I think, is when we start to move to some of the more coastal applications and then start to move offshore into the ocean CDR world, where the legal framework does look quite different, I think, from a lot of other climate solutions.
Radhika Moolgavkar: Yeah. So before we jump into some of the challenges around oceans in the legal world, can you just give us a little bit of a background about yourself and how you landed in the spaces you did researching energy, negative emissions technology within the context of climate change law, if that even really exists? I don’t think there’s a true body of climate change law, but...
Romany Webb: We would say there’s a body of climate change laws still emerging, but certainly there. You know, as you might tell from my accent, I’m originally from Australia. Then I started my career in Australia working in private practice at a large law firm where I did a lot of work on the energy sector and a fair amount of work on the water sector, which in a country like Australia, you know, the driest inhabitant continent on earth, water is a big deal and climate has climate change, which has big implications for access to water.
And so it was really through that I got interested in climate change and decided to work and focus more fully on climate change. So about I don’t know, more years than I care to think about ago, I moved to the US to do my master’s of law and, you know, just really focused in on the environmental space and the climate space. As part of that work, I started doing a lot of work on upstream oil and gas development and CCS in the context of that. And that really led me to the carbon removal space where I now spend a lot of my time.
Unknown speaker: Cadillac Desert was a very influential book in my life.
Radhika Moolgavkar: So, yeah, let’s talk broadly a little bit about the big laws and regulations that govern ocean carbon dioxide removal and how they might impact the deployment of these specific ocean technologies. Because I agree with you that oceans are a very unique space and something that is just different from anything else that we’ve tried in, I think, the sustainability world from a building perspective, if you will.
Romany Webb: Yeah. I mean, the legal frameworks for the ocean-based approaches look really different depending on the approach you’re pursuing and where you’re pursuing it. But as a general matter, one of the reasons that the governance of ocean-based approaches is more difficult is because you’re necessarily talking about doing stuff in the ocean and the ocean is a shared resource. All countries have an interest in the ocean, both coastal and landlocked, and they all have certain rights and obligations with respect to the ocean. As a result, we have this quite extensive body of international law that’s developed over time to regulate what happens in the ocean.
Different countries implement that law in different ways, which adds to the complexity here. When you’re talking about activities in the ocean, you end up with these multiple layers of law. Where you might, you have sort of an initial layer of international law that might set out broad principles. Then you might have domestic law in the US that might include federal, state, local, tribal law. If you’re operating in an area where you’re sort of on the border of two countries, both countries’ laws might apply. So the complexity is just at another level compared to an activity that occurs on land where it’s very clearly under the jurisdiction of just one country.
Radhika Moolgavkar: Yeah. Have you had a chance to speak with any of these companies who are working in Ocean CDR and advise them on how best to navigate it? Because I feel like from my limited understanding, not only is there a huge breadth of law, but its application to CDR is not super clear because the terms used weren’t maybe necessarily intended to the things that CDR companies are doing.
Romany Webb: Yeah, absolutely. At the international level, we have all these international agreements and rules of customary international law that establish rules for doing stuff in the ocean. All of those instruments were written well before Ocean CDR was even being discussed. There have been attempts in recent years to sort of adapt those often decades-old international instruments to this new class of activity, but often they’re not a particularly good fit and there’s a lot of uncertainty and complexity around how to adapt them. And so I do think it is an incredibly challenging environment Yeah, absolutely.
Radhika Moolgavkar: So, you know, are there any benefits to the current legal framework, specifically for Ocean CDR? I know there’s a lot of benefits for other parts of Ocean Health and maybe what are some of the shortcomings that you see that we need to address as an industry to help Ocean CDR grow from either a research or a corporate perspective?
Romany Webb: I think that there are a lot of challenges, as I said before. One of the key international instruments that could apply to a lot of Ocean CDR activities is a set of agreements called the London Convention and London Protocols. The Learning Convention was adopted back in the 70s to regulate what’s described as ocean dumping. Basically the discharge of stuff into the ocean. And the goal was really to limit discharges that would cause harm to the marine environment. Now in a lot of ocean CDR activities like ocean fertilization, ocean alkalinity enhancement, you are discharging substances into the ocean.
And that presents risks in some cases to the marine environment. And so there has been this effort to regulate those sorts of activities under these existing agreements. Without getting sort of too into the weeds and nerding out too much on the legal aspects, there is one thing that’s sort of significant about those international agreements is that the parties, when they’ve been thinking about Ocean CDR, they’ve tended to distinguish between research activities and deployments. Now, on the one hand, that makes sense. You know, we’re still investigating a lot of these Ocean CDR techniques.
We have questions about how well they work and what their impacts will be. And so it makes sense to take this sort of staged approach where we’ve been doing the research first, and then we think down the road about how to govern the deployments. The challenge though, of course, is distinguishing between research and development, because a lot of the time in the Ocean CDR context, research involves And so in that context, this drawing that distinction, I think is really challenging. Will, I think, be a real issue for the field moving forward as we start to need to do more stuff in the ocean to test things out and to move towards deployment.
Drawing that distinction is going to become increasingly difficult.
Radhika Moolgavkar: Yeah, so how do you think about that as an academic? How do we move it forward as like an industry? Who does the industry need to engage with? Like you said, these are multinational treaties, so they’re probably very difficult to change. So is there an effort you see to have that or do we need to think about that more?
Romany Webb: Yeah, I mean, the one thing to remember when we’re talking about applying international law to these activities, you know, international law governs states, it governs countries. International law is not directly applicable, with a couple of exceptions, to private individuals or companies. And so if you’re a company that wants to engage in an Ocean CDR activity, you don’t go to the international body for a permit, you go to the relevant national authority. And so I think there are opportunities to sort of engage at a national level. And we need to be looking at, you know, how different countries are adopting and applying these international agreements, how they’re creating sort of domestic governance frameworks, and then look for opportunities to sort of plug into those processes.
One of the things that we’ve done at the Sabin Center is we spent a couple of years sort of mapping How different laws in the US would apply to different ocean CDR activities. And as a result of that work, our sort of key takeaway was, it’s really complicated. There’s a lot of uncertainty. And in many cases, the existing legal framework may not be optimally suited to advancing sort of safe and responsible research and down the road deployment. And so we, in response to that, we developed what we called a model law for ocean CDR research, where we basically drafted a piece of legislation that could in theory be enacted by Congress to create a new legal framework.
That would, we think, better ensure sort of safe and responsible activity in this space. And so that’s the type of thing that we need to be thinking about. You know, we need to understand how existing laws apply and where there are gaps or issues or shortcomings. But then we also need to be thinking about, like, what’s the governance going forward? What should that look like? How do we create a framework that enables these activities to move forward as part of our climate solution set where we decide that’s appropriate, but also doesn’t leave them Totally unregulated because we know that there are risks and we want to sort of manage the environmental and social implications.
Radhika Moolgavkar: I read your model law. It was very interesting. I enjoyed it. But says only like a few people in the world, right? But I’m curious, are you getting any traction in Congress in D. C. around this? You know, the Biden administration has been very active in CDR. But Congress maybe is a little more fractured. I’m curious what the reaction has been in the political class.
Romany Webb: Yeah, well, I will say that, you know, the seventh century is an academic institution, so we do not lobby. We are not an advocacy organization as such. And so when we do work like this, we’re really sort of putting it out into the world to start informing discussions and debates about what the future might flag. We have received... You know, generally positive feedback on the model law in particular. I will say that no one is happy with every element of it, which to me is a good thing because that makes me increasingly convinced that we sort of appropriately balanced a range of diverse perspectives.
You know, I think in terms of the sort of political situation around CDR, certainly the Biden administration has shown interest in and been generally supportive of CDR. There is work specifically focused on marine or ocean CDR at the moment with the new Fast Track Action Committee that just recently released a request for information. I think also on the Hill, there is a lot of interest in CDR and in ocean CDR. But I think a lot of the interest in the Hill is really around thinking about how to support research and incentivize sort of private sector action in the space.
There is less focus on sort of how to regulate these sorts of activities. And that’s something we see more broadly in the sort of climate law of space.
Radhika Moolgavkar: Just in the broader climate law space, just following up, do you see the same sort of work happening in other parts of the world as Europe and in the UK? And obviously every country is touched by the ocean. So do you see this same interest in other areas?
Romany Webb: Looking at Ocean CDR specifically, there is a lot of international interest in the field. Different countries have taken different approaches to How they implement the relevant international agreements and how they think about regulating these activities. So Germany, for example, has domestic law that is actually currently very restrictive of Ocean CDR. Other countries have been sort of more permissive or have signaled that they plan to be more permissive of these activities. So it really does vary quite significantly between countries in terms of the regulation. But I do think there is sort of broad interest across the world in Ocean CDR and the role it might play in mitigating climate change.
Radhika Moolgavkar: All right. So I want to pivot to something a little bit different, which is your work on community benefits agreements, because I think that really actually dovetails very nicely into Ocean CDR. I think, you know, there have been some instances where communities have pushed back on the local authorities for the research, small research trials. Yeah, so community benefits agreements.
Romany Webb: Have been used in the US for sort of large commercial developments, things like sports stadiums, large housing estates, major sort of shopping malls. Since the 1990s, where a developer will go to a community And say, we want to build this new facility. The community will often have concerns about that. And so the developer and the community reach an agreement under which the developer agrees to provide some sort of benefit to the local community. And in return, the local community agrees to support or at least not oppose the development. So as I said, been used for many decades in sort of large real estate transactions.
In the last decade or so, they’ve increasingly been used for renewable energy projects in parts of the country. And now there’s sort of interest in using them in connection with CDR projects. We, the study we did was really around the use of community benefits agreements in connection with the new direct air capture hubs that are being supported by the Department of Energy using funding that was appropriated under the infrastructure law. But I think many of the learnings are sort of broadly applicable to climate infrastructure development, which, you Large facilities that will have potentially significant impacts on the local community.
And the local community, while they will sort of indirectly benefit from those facilities because the facilities help to address climate change, the localised benefits are often quite limited. So we’re asking communities to bear these burdens for limited benefits.
Radhika Moolgavkar: And so what did your study kind of find in relationship to DAC? So, you know, DAC obviously has a facility. They also have pipelines potentially. How do you, do you, have you thought about how you structure a community benefits agreement that might span, you know, hundreds of miles potentially?
Romany Webb: Yeah, so we were looking at really the best practices for negotiating and drafting community benefits agreements in the context of DAC Hub projects. And we, as part of the project, we did a lot of sort of desk research. We reviewed a lot of previous CBAs and dug into the negotiation processes. And then we also conducted one-on-one interviews with people who had been involved in negotiating and drafting CBAs. And, you know, we came up with this set of best practices, but one of the key takeaways that I think is reflected in many of the recommendations is this idea that the negotiation of community benefits agreements necessarily has to be a local process.
These agreements, in order to be successful, have to be responsive to the concerns and needs of the local community where the facility will be situated. And it’s really important for developers to understand, take the time to learn about what’s important to the community. What are they really concerned about? And this is, I think, particularly important with things like direct air capture facilities and other sort of CDR facilities. These are new technologies. People don’t know what they look like. They don’t understand what they involve. They don’t understand the risks they pose or the local benefits they might have.
And so it’s really important to speak directly to communities To both to educate them about what a project entails, but also to learn from them about what’s important to them, how a project might be sort of better adapted to the local conditions, how a project can be designed to deliver local benefits whilst also delivering global benefits in the form of climate change mitigation.
Radhika Moolgavkar: Have you seen yet any adoption within the CDR community for this or maybe it’s too early because we’re not yet at that deployment stage or maybe it’s the perfect time because we aren’t yet at the deployment stage.
Romany Webb: Yeah. So as part of the funding that various agencies are giving out through programs established under the infrastructure law and the Inflation Reduction Act, many agencies are now requiring applicants for funding to submit what are called community benefit plans. Those are a little bit different to community benefit agreements and the plans to Different developers’ plans look very different. Often they’re more focused on community engagement than really thinking about how communities can share in the benefits of a project. But that is an important first step towards developing this Sort of more community-centered approach to designing and building these facilities.
And certainly, you know, in the case of the best practice guide that we put together, we have had a lot of positive feedback from developers across the climate space, but particularly in the CDR space, that is really helpful to them to understand some of how to approach The negotiation process, how to think about drafting, what are the key provisions that should be included, all of that sort of stuff that is often just the domain of lawyers, but really, developers and others who are designing projects need to be thinking about as well.
Radhika Moolgavkar: Yeah, absolutely. I mean, they’re the ones on the ground, so they need to be engaging. Okay, so my last question for you is a pretty broad one, but I’m just curious, as you see the CDR industry advance, I mean, I hope it advances and grows, what do you believe are going to be the biggest legal challenges and the biggest opportunities for the space?
Romany Webb: Like, you know, we know all the science says that we need CDR alongside emissions reductions to combat the climate crisis. I am personally convinced that there is no one silver CDR bullet. We are going to need a portfolio of approaches. And I think that is a strength, frankly, when we think about deployment. In terms of the legal opportunities and the legal challenges, I think, you know, When we think about CDR, we often focus on sort of the climate benefits of those projects, but many CDR activities also have a lot of non-climate benefits.
And I think that could be, that is something that we should think more about sort of how to capitalize on those projects. Co-benefits to deliver to local communities to make things like permitting and other regulatory reviews sort of easier and smoother. So I do think there’s a lot of opportunities there given the co-benefits that these activities provide in addition to their climate benefits. Having said that, there are also, you know, I think potentially very significant legal challenges ahead. We’ve seen more broadly in the climate space, you know, like permitting access to land.
Those things are really holding up projects. We see that all the time in the renewable energy space. We’re starting to see it in things like the hydrogen space. And we will, unless we sort of take some time and pay some attention to ways we can change existing legal frameworks, we’ll see it in the CDR space as well.
Radhika Moolgavkar: Well, thank you so much for joining me. I could have really gotten much more into the wheeze with you, but I will spare the audience all that legal jargon. Such an informative conversation, and I really appreciate you taking the time to talk to us today.
Romany Webb: Yeah, thanks for having me.
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