The Environmental Law and Governance Working Group is organising a presentation.
What do a fizzy drink, a wooden chair and direct air capture of CO2 have in common?
They may not say so ‘on the tin’, but all of these objects may involve processes of removing CO2 from the atmosphere and storing it somewhat durably, which under Union law makes them all forms of so-called carbon dioxide removal (CDR). Reaching collective Union climate targets is a shared effort for Member States, an effort that requires considerable coordination between Member States across time, space and sectors. Crucially, achieving these targets increasingly depends on CDR. Still, Union legislation largely leaves it to Member State discretion, how much and which CDR methods to deploy, by when, and by which Member States. Against this backdrop, Two arguments are advanced in this presentation, one substantive and one methodological. For one and in substantive terms, such state discretion regarding CDR generates new coordination challenges between Member States for reaching collective Union targets across sectors, time and space. From a methodological point of view mapping the legal landscape of CDR, raises scholarly challenges, which the presentation will address and which the following discussion can unpack further.
The presentation advances these two arguments through two respective analytical steps:
- Mapping the legislative landscape of CDR:
First and in substantive terms, I present a map of Union legislation applicable to CDR. This map has both a horizontal and a vertical dimension. Horizontally, the applicable legal acts are (i) vast, (ii) fragmented (across multiple CDR methods, sectors and legal instruments of varying scope); (iii) dynamic; and (iv) markedly short-term-oriented: beyond 2030, the field is largely undetermined. Vertically CDR’s legislative landscape leaves considerable discretionary space to Member States. The presentation highlights three compounding coordination challenges generated by Member State discretion: conceptually, Union law treats incommensurable CDR methods and emission reductions as partially equivalent; temporally, it permits flexibility over when to remove or reduce; and spatially, it leaves open where CDR will be deployed and how its efforts, co-benefits and side effects will be distributed across Member States. Taken together, these coordination challenges may create a fallacy of composition, in which Member States may exercise their discretion lawfully and remain individually compliant with Union law, yet if all Member States were to exercise the full scope of their discretion, their aggregate action would fall short of attaining collective Union climate objectives.
- Unpacking the methodological challenges for legal scholars:
Secondly and from a methodological perspective, I unpack the challenges legal scholars face in analysing CDR legislation. To do that, I map the academic discourse on the field. Most of the challenges I highlight are not new to environmental law scholars, yet they compound in the literature on CDR. The legal literature on CDR tends to be (i) discontinuous, in that CDR is inaccurately framed as a new legislative challenge, which leads scholars to disregard the wealth of existing legislation, experience and literature on CDR. Large parts of the literature are also (ii) pragmatic, in that the boundaries between commentary and analysis are fluent. Moreover, the literature tends to be (iii) promotional, in that scholars often advance a specific normative project of how CDR ought to be regulated. Further, (iv) interdisciplinary, in that large parts of the literature only selectively engage and challenge assumptions and positions from other disciplines and lastly (v) the literature employs globalised prisms, by projecting a concept of CDR as a legal object that transcends jurisdictional specificities. I put these methodological challenges up for debate and hope to discuss them with the discussion group in detail to learn from the shared experiences in addressing these challenges.
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