Abstract
Non-technical summaryMost domestic environmental laws control the act of emitting pollutants into the environment. As a result, they do not apply squarely to negative emissions technologies (NETs) that remove ambient contaminants and do not emit pollutants themselves. As a result, current US environmental laws cannot readily govern a NET unless it has features that would typically allow regulation of a clean-up, such as ownership of the polluted resources, being at fault for polluting them or instituting projects to restore them. We should reinterpret such laws to focus on actual disruption or harm to the environment instead of using emission of pollutants as a proxy for ecological damage.
Highlights
Most domestic environmental laws control the act of emitting pollutants into the environment
Under US environmental laws, the clean-up of prior pollutant releases typically occurs when (i) the person releasing the pollutant bears fault or liability, (ii) the contaminated natural resource is owned by a party who must remediate it regardless of fault or (iii) a governmental authority removes it as a public work
The historical releases of greenhouse gases and anthropogenic climate change will not fall into these categories
Summary
To clarify the odd legal posture of NETs, a thought experiment can shed light on how current US environmental statutes govern large-scale projects that seek to alter the environment without themselves emitting pollutants or causing environmental sideeffects that would trigger regulatory jurisdiction under federal or state laws. The Policy, explicitly notes that EPA “supports the creation of water quality trading credits in ways that achieve ancillary environmental benefits beyond the required reductions in specific pollutant loads, such as the creation and restoration of wetlands, floodplains and wildlife and/or waterfowl habitat” that might create tradable credits through reductions in ambient levels of pollutants in waterbodiesvii These examples don’t capture all possible emerging negative emission strategies under other US environmental programs, but they begin to demonstrate the core concept. By requiring the act of discharging pollutants into the environment or a specific harm to environmental resources as a predicate for regulatory jurisdiction, federal environmental laws do not provide a coherent or sufficient legal basis to govern the development and deployment of technologies that either remove ambient pollutants already in the environment or reduce ongoing specific harms to injured resources They instead will turn on fortuitous aspects of particular NETs that might create a handle for regulatory jurisdiction, such as the emission of collateral pollutants related to power generation or the impact to land created by dispersing minerals for accelerated weathering. These exceptions provide an enormously important and powerful platform for US environmental regulation, but they do not offer a ready basis for governance or oversight of negative emission interventions that remove pollutants from publicly held natural resources and ecosystems
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