Sequestration, Science, and the Law: An Analysis of the Sequestration Component of the California and Northeastern States' Plans to Curb Global Warming

Brodeen, Elizabeth C., Environmental Law

  I. INTRODUCTION
 II. CARSON DIOXIDE SEQUESTRATION SCIENCE
     A. Forests:
     B. Agriculture
     C. Carbon Capture and Storage
III. PROGRAMS INVOLVING SEQUESTRATION
     A. The Move Toward State Regulation
     B. California
        1. The CCAR fails to provide sequestration guidelines for
           nonforestry sector entices
        2. The guidelines that the CCAR does provide for sequestration
           underestimate the amount of carbon stored in forests
     C. The Northeastern States
        1. The RGGI cap on carbon sequestration credit may be too
           limiting
 IV. THE INTERSECTION OF SCIENCE AND POLICY: CARBON SEQUESTRATION IN
     CALIFORNIA AND THE NORTHEASTERN STATES
     A. The science supporting the CCAR's and the RGGI's sequestration
        allowances is not the most accurate, however, it is in line
        with the overall policies of each program
     B. The CCAR and the RGGI neglect to provide incentives for members
        to use sequestration methods beyond forests
     C. Incorporating science and policy to create the most effective
        carbon sequestration component
  V. CONCLUSION

I. INTRODUCTION

The impacts of global warning will be extensive and catastrophic. (1) Since 1990, the earth has experienced the ten warmest years ever, thus the effects of global warming are not a future threat but a present one. (2) In fact, global warming is "arguably the most far-reaching and formidable environmental issue facing the world." (3) Largely as a result of human activities in the past 200 years, the atmospheric concentrations of greenhouse gases (GHG) have increased; for example, carbon dioxide (C[O.sub.2]) has increased by thirty percent. (4) Fossil fuels, which are the energy source the majority of the world's population depends upon, are the chief source of GHG emissions. (5) Although future energy demands are uncertain, rising human population and growing development ensure the continued increase of GHG emissions. (6) In order to stave off the effects of global warming, it is imperative for governments to develop laws and regulations limiting GHG emissions. Understanding the science behind global warming "is fundamental to determining the appropriate policy response." (7)

As the science surrounding global warming becomes more concrete, governments around the world are actively attempting to control factors that contribute to climate change. Since the increases in C[O.sub.2] are primarily attributable to fossil fuel emissions, it is one of the major components that climate change laws seek to control. The ultimate goal for these programs is to stabilize GHG emissions from human activities; since it is almost impossible that these emissions will ever be zero, this goal demands that GHG emissions be offset by methods that remove an equal amount of atmospheric GHG. (8) One process that achieves this offsetting purpose is carbon sequestration. The majority of programs, laws, and protocols designed to limit the effects of climate change include a carbon sequestration component. (9)

Sequestration of carbon has been called "the only credible option that would allow the continued use of fossil energy without the threat of dangerously altering Earth's climate system." (10) In 2004, sequestration of carbon in the United States offset approximately eleven percent of U.S. GHG emissions. (11) Since the switch from fossil fuel energy sources to alternative energy sources will not happen overnight, sequestration is crucial. (12) Critics of sequestration offsets in climate change laws argue that any credit allowed for sequestration "justifies a carbon emission that would otherwise not have occurred because it would have put the user of fossil fuels over its emission allowance." (13) While it is true that reductions are the ultimate goal when confronting global warming, it is imperative to have other options that decrease the amount of GHG in the atmosphere because it is unlikely that fossil fuels, for example coal, will ever cease to be used as an energy source. (14) Carbon dioxide sequestration has emerged as a viable option to offset the impacts of fossil fuels by removing C[O.sub.2] from the atmosphere. (15) It is an important element of GHG emissions control programs in California and the northeastern United States. (16)

Although the practices allowed by the GHG emissions programs in California and the northeastern states to receive credits do not adequately utilize scientific research and current technology, the methods allowed support an overall policy of reducing emissions, as opposed to merely escaping culpability through offsets. (17) This Comment will first discuss three major methods for carbon sequestration and the current state of the science supporting those methods. Then, it will outline two state-level greenhouse gas regulation regimes, from California and the northeastern states. In particular, this Comment will analyze the carbon sequestration aspects of these programs in light of current scientific knowledge and technology. Finally, this Comment will demonstrate that although the sequestration components of these regimes are incomplete, they support an overall policy of emissions reductions, as opposed to an overall policy of offsetting emissions, which is in line with the ultimate goal of the GHG emissions programs. As the United States begins to seriously consider a federal GHG emission law, it is necessary to examine the relationship between science and the overall policy of the emissions reduction program.

II. CARBON DIOXIDE SEQUESTRATION SCIENCE

Carbon dioxide sequestration is an important component of programs designed to limit GHG emissions. In order to analyze the efficacy of the carbon sequestration components of these programs, it is imperative to understand the science that underlies each program. There are three main areas of carbon sequestration science: sequestration in forests, sequestration in agriculture, and carbon capture and storage sequestration.

A. Forests

Sequestration of carbon by photosynthesis is currently the only practical form of air capture of carbon dioxide. (18) Forests in the United States sequester 200 targograms (Tg) of carbon from the atmosphere per year, which is equivalent to approximately ten percent of the United States' C[O.sub.2] emissions from burning fossil fuels. (19) Changes in forest management practices could increase carbon sequestration by 100 to 200 Tg of carbon per year. (20) Some of these changes include afforestation of cropland and pasture, reducing deforestation, reducing harvest of forests, increasing agroforestry, and planting trees in urban and suburban regions. (21)

There are many uncertainties regarding the effectiveness of carbon sequestration in forest biomass. As forests mature, the rate of carbon sequestration declines. (22) Thus, carbon sequestration may be very high at the beginning of the life of a forest but then decrease as the forest ages. Besides photosynthesis, other processes are crucial to the carbon cycle in forests, for example, soils in forests store carbon. Further, unexpected events like forest fires can release significant quantities of C[O.sub.2] into the atmosphere. (23) Additionally, forest harvesting and product use can have different impacts on carbon flow. (24) Also, ground-level ozone, or smog, can impede the ability of trees to uptake C[O.sub.2]. (25) Despite these uncertainties, forest sequestration is one of the most widely used sequestration techniques. It is also an essential part of both the California and northeastern states' GHG emissions programs, which will be shown below.

B. Agriculture

Agriculture is another arena where carbon can be sequestered in great quantities. Globally, agriculture accounts for fourteen percent of greenhouse gas emissions. (26) There are approximately 11 to 21 Tg of carbon per year stored in agricultural soils. (27) Cropland has the potential to sequester up to 75 to 208 more Tg of carbon per year. (28) Grazing lands have the potential to store 18 to 90 Tg of carbon per year. (29) There are several ways for agricultural lands to sequester more carbon, including allowing fields to remain fallow or engaging in conservation tillage practices. (30) Scientists have discovered Amazon soil that is rich with carbon that allows crops to grow at higher rates. (31) Bio-char, which is formed when organic matter in oxygen-poor environments smolders instead of burns, is the main component of this soil and contributes to its high carbon content. (32) The process that is used to make biofuel results in bio-char that could be used to grow crops. (33) There is no known ceiling for bio-char addition to soil. (34) Currently, neither the California nor the northeastern states' programs allow for credit based on agricultural sequestration.

C. Carbon Capture and Storage

Injection of carbon dioxide gas into underground reservoirs is another option for carbon sequestration. Carbon capture and storage (CCS) technology involves capturing carbon as it is released from the gas stream of large emitters, such as coal burning power plants. (35) The captured carbon is then injected into reservoirs below the ground. (36) The reservoir may be below the ocean, as with a project in Norway that has been in existence since 1996. (37) Or it may be below land, as with former oil reservoirs in Texas that have been injected with C[O.sub.2] gas. (38) There is potential for this mode of sequestration to provide economic gains which would offset the costs, because injecting the gas into underground reservoirs may mobilize oil. (39)

Some issues may prevent CCS from becoming a viable option for carbon sequestration. Currently, the equipment required to extract C[O.sub.2] from the gas stream is expensive and takes up a lot of space. (40) Thus, there is a need for development of more advanced technology in this area. Additionally, there is concern that some reservoirs may leak or suddenly release large quantities of C[O.sub.2], which would be catastrophic because it could trigger tsunamis or landslides. (41) Lastly, the …

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Publication information: Article title: Sequestration, Science, and the Law: An Analysis of the Sequestration Component of the California and Northeastern States' Plans to Curb Global Warming. Contributors: Brodeen, Elizabeth C. - Author. Journal title: Environmental Law. Volume: 37. Issue: 4 Publication date: Fall 2007. Page number: 1217+. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 2007 Gale Group.

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