In a recently published research report, ‘Liability Considerations for Marine Carbon Dioxide Removal Projects in US Waters’, three researchers from the Columbia Law School, Sabin Center for Climate Change Law, Korey Silverman-Roati, Martin Lockman and Romany M. Webb, have studied the extent to which legal rules governing marine CDR research and potential deployment can be used to hold entities engaging in marine CDR liable for the damages resulting from their activities, particularly those that are inflicted upon the environment.
In general, there are various US federal laws such as the Marine Protection, Research and Sanctuaries Act, the Clean Water Act, the Rivers and Harbors Act and the Outer Continental Shelf Act that may impose civil and criminal penalties as well as monetary fines in cases where those that engage in marine CDR fail to abide by their requirements. Detrimental effects of marine CDR projects may also be penalized under tort law that is shaped by judicial decisions. Even though some categories of tort law rarely apply to marine CDR projects, other categories may have applicability, especially for projects that take place in state ocean waters, depending on the location and effects of the project in question.
There are complexities and ambiguities surrounding the implementation of liability arising from laws and tort-based court decisions that may lead state and federal laws to be applied in conjunction. In addition, the rules in question aim to impose limitations on activities giving rise to environmental damage without promoting possible environmental gains. A diverse liability scheme may be more suitable for striking a fair balance between the latter goals.
Against this background, the researchers have concluded that marine CDR should be governed by a federal law laying down concrete and foreseeable rules in order to prevent or financially remedy the damage inflicted to oceans. In this regard, they have examined three existing environmental liability frameworks that regulate different activities and may be used for establishing a new liability scheme dedicated to marine CDR, namely ‘the unified federal oil spill liability regime, the insurance structure for nuclear accidents and environmental “good samaritan” statutes. These schemes can be instrumental for establishing simpler liability rules for marine CDR, supporting the establishment of experimental marine methods and safeguarding efforts that are made in good-faith to restrict and reverse adverse environmental effects triggered by climate change.
The rules that have been set under the act governing federal oil spills are advantageous as they guarantee quick and quasi-definitive compensation for harm from oil spills. In addition, the regime safeguards parties from unrestricted liability for environmental damage. Even though this upper limit imposed on liability has been the subject of criticism, it can be beneficial in the context of a regime governing marine CDR that offers environmental benefits and risks. The regime laying down an insurance framework for nuclear accidents, on the other hand, may be a useful analogue for the marine CDR industry owing to the flexible nature of its upper limit on liability that may incentivize innovation during the primary stages of marine CDR activities while expanding the scope of marine CDR activities. Lastly, ‘good samaritan’ laws that exempt those engaging in activities that enhance environmental conditions despite posing certain environmental hazards from liability provide a model for marine CDR activities that come with both risks and benefits. Even though any framework for marine CDR would need to enshrine standards that can be used to distinguish between actors that act in good faith and bad faith, the good samaritan liability principle can still be used to safeguard and incentivize diligent and well-intentioned marine CDR activities.
Read the full paper here: "Liability Considerations for Marine Carbon Dioxide Removal Projects in" by Korey Silverman-Roati, Martin Lockman et al.