Canada’s ocean fertilization flap, and its significance

There’s a ruckus going on over an experiment in ocean fertilization conducted off the coast of British Columbia in July and disclosed this week  (see here, and here).  The Haida Salmon Restoration Corporation, an enterprise of the Haida village of Old Massett, used a large fishing vessel to spread 100 tons of iron sulfate-rich dust on the ocean surface west of Haida Gwaii (or the Queen Charlotte Islands).  The aim of the release was to increase plankton growth and thereby promote growth of fisheries and maybe also remove carbon from the atmosphere.  The operators claim the iron generated a plankton bloom of about 10,000 square kilometers, with large associated increases in fish, marine mammals, and seabirds.

This project will have, is having, plenty of local impact on the ocean environment.  That was its intent, and its promoters and opponents are now arguing over (among other things) whether these impacts are good or bad.  But in terms of larger-scale impact, there is no chance that this intervention will have a non-trivial effect on global environmental processes – climate, carbon cycle, or whatever.  It’s bigger than the dozen-odd prior ocean fertilization experiments (which were in the 1 to 10 ton range), but not big enough to matter at continental to global scales.  The fight is really over the precedent, the symbolism, and the legal environment (or lack thereof) present to control such interventions if they are contemplated on a larger scale.

In this regard, this little controversy illustrates two acute problems raised by any geoengineering project – ocean fertilization, or other forms of intentional intervention to change environmental processes – if and when they are proposed at larger scale.  No such interventions have ever been done, even as experiments, above the tiniest scale — but people are increasingly talking about them, particularly as “Plan B”-style interventions to temporarily undo some of the harms from elevated greenhouse gases and climate change, given what a terrible job we’re doing of solving the problem at the root by cutting emissions.

First, such interventions exist in a near legal vacuum.  Critics of the Haida project are claiming it violates international law, but this is simply not true.  The parties to two international treaties have adopted decisions or resolutions related to ocean fertilization, or geoengineering projects more generally: the Convention on Biological Diversity (whose parties are meeting this week in Hyderabad – watch for the fireworks over this); and the London Convention on ocean dumping, managed by the International Maritime Organization (IMO) in London.

Mainly due to vigorous lobbying by a couple of small NGOs (the same ones now outraged at the Haida project), parties to the CBD have adopted two decisions discouraging ocean fertilization, and geoengineering generally.  But these are purely advisory – and are moreover so clumsily drafted that even if they were legally binding (which they are not), their operational meaning would be utterly opaque.  To check for yourself, you can read the most relevant decision here.

Action under the London Convention has been more focused.  Parties adopted a resolution in 2008 that expressed concern about ocean fertilization and asserted it fell under the scope of their treaty, but also provided for “legitimate scientific research” in ocean fertilization subject to assessment of its environmental risks.  They have since developed an “assessment framework” – in effect, draft terms for risk assessment of proposed ocean fertilization experiments – but are still developing legal options to implement this framework and thus exercise legal control over ocean fertilization research.  In the meantime, states are merely urged to use “utmost caution and best available guidance” in undertaking such experiments.  In other words, the London Convention parties are furthest along in negotiating potential legal controls on ocean fertilization (which is just one form of currently proposed geoengineering), but they do not have a moratorium in effect.  The resolution and draft assessment framework can both be found here.  Nations are under no legal obligation to refrain from ocean fertilization research, nor to submit proposals to any international process. Such a legal structure is in development and may be adopted by Parties at some point, but is not in force yet.  It would clearly be a good idea to develop international law to control geoengineering, and to assess and manage the myriad associated risks, before nations start developing (and potentially fighting over) large-scale interventions.  But there isn’t any legal control on it at present.

Oddly, the more interesting question about this particular experiment is whether it violated any applicable Canadian law.  On this, everyone is busily in damage-control mode: the project operator says they kept all relevant officials informed throughout development of the project; their opponents are saying they clearly broke multiple laws; and Environment Canada is saying the matter is under investigation.  I’d like to be a fly on that wall.

The second nasty challenge about potential legal/political control over geoengineering that this project raises concerns the fuzziness of scale boundaries.  This little dump – and yes, it is little – elicited howls of outrage out of proportion to its actual impact, and to the non-reaction to many other commonplace activities with impacts as big or bigger.  This is because, by calling this “geoengineering”, it attains a status of precedent, symbol – the thin end of the wedge.  Opponents of ever doing geoengineering on a large scale think it’s important to stop even small things that look like geoengineering.  But countries are likely to perceive small-scale environmental interventions – like this ocean fertilization, and China’s extensive program of weather modification – as their own business.  But environmental effects do not stop cleanly at national borders, so as the scale of proposed interventions increases, nations may come to perceive compelling interests in activities that other nations doing the activities perceive as entirely under their sovereign authority.  This represents one of the ways – of which there are, unfortunately, many – that environmental manipulations may provide new triggers for conflict among nations.  Best to start thinking about it now.

Reader Comments

14 Replies to “Canada’s ocean fertilization flap, and its significance”

  1. Ted,

    After our conversation last night about Russ George, I looked up the LC and the LP and actually think there may have been an LP violation (but not an LC violation, as you note above).

    The key is to recognize that the LC has a black list containing items that may not be dumped while the LP has a reverse list containing items that may be dumped and banning all other dumping. Specifically, the LP allows dumping of anything included in its Annex 1 so long as the dumper has a permit when the ship is either flagged by a party or departs from a party’s port. 100 tons of iron would seem to require a permit under Annex 1 as inert geological material or to be banned under the Protocol, not sure which.

    Canada is a party to the LP. So even without the iron fertilization decision under the LC, the LP may ban dumping 100 tons of iron into the ocean – and would at a minimum require a permit. Therefore isn’t there an LP violation even if not an LC violation? This conclusion would seem to be strengthened by the discussion and decision on iron fertilization within the LC.

    This is also why, as I recalled, some scientific expeditions have to get permits – for example the recent German LOHAFEX experiment in the South Atlantic.

  2. Ted,

    After our conversation last night about Russ George, I looked up the LC and the LP and actually think there may have been an LP violation (but not an LC violation, as you note above).

    The key is to recognize that the LC has a black list containing items that may not be dumped while the LP has a reverse list containing items that may be dumped and banning all other dumping. Specifically, the LP allows dumping of anything included in its Annex 1 so long as the dumper has a permit when the ship is either flagged by a party or departs from a party’s port. 100 tons of iron would seem to require a permit under Annex 1 as inert geological material or to be banned under the Protocol, not sure which.

    Canada is a party to the LP. So even without the iron fertilization decision under the LC, the LP may ban dumping 100 tons of iron into the ocean – and would at a minimum require a permit. Therefore isn’t there an LP violation even if not an LC violation? This conclusion would seem to be strengthened by the discussion and decision on iron fertilization within the LC.

    This is also why, as I recalled, some scientific expeditions have to get permits – for example the recent German LOHAFEX experiment in the South Atlantic.

  3. Hi Michael –

    Thanks for your comment, and nice to see you last night.

    I don’t think this experiment is a violation of either the Convention or the Protocol, for the following reasons:

    Granted that the Protocol operates by a general prohibition of dumping, with exceptions for various innocuous materials listed in Annex 1 (and even dumping of these materials requires permits granted by national authorities in either the loading state or vessel flag state). But Article 1.4.2.2 of the Protocol explicitly excludes from the definition of dumping, “placement of matter for a purpose other than the mere disposal thereof …” Even absent additional text on the matter, it’s easy to argue that the purpose of ocean fertilization is not the mere disposal of the material.

    But the parties did address the question of whether ocean fertilization falls within the definition of “dumping” in their 2008 resolution, in two ways. First, in paragraph 2 of the Resolution, they stated that “… ocean fertilization is any activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans.” By stating a “principal intention” that is something other than disposal, this clearly appears to imply that ocean fertilization – even not for research – falls under the above exclusion from the definition of “dumping” in the Protocol.

    Moreover, for ocean fertilization *research*, the next paragraph makes the point even more strongly, stating that “in order to provide for legitimate scientific research, such research should be regarded as placement of matter for a purpose other than the mere disposal thereof under Article III.1(b)(ii) of the London Convention and Article 1.4.2.2 of the London Protocol” – which I would file under the heading “in case you didn’t get it when we said it above.”

    Note as well that neither the Protocol nor any relevant decisions or resolutions define “legitimate scientific research,” or establish an authoritative procedure for determining what activities count as such. So until Parties adopt some legal framework to operationalize the current Assessment Framework, or otherwise enact binding controls on fertilization, there is no extant obligation that this experiment violated. The closest thing that might be found to a violation lies in paragraph 6 of the resolution, which states that “until specific guidance is available, Contracting Parties should be urged to use utmost caution and the best available guidance to evaluate scientific research proposals” – but even here the language is explicitly hortatory overall, and in addition contains enough ambiguities that Canadian officials could readily declare that’s what they did.

    None of this is to say that this flap is not embarrassing for Canadian officials. It surely is – and they may well not want to rest their defense of their position on the claim that they didn’t actually violate any legally binding obligation. (They have tried that extensively in the case of the Kyoto Protocol, and even though their position is legally correct it hasn’t played very well.) But they are caught in quite a bind. If they don’t rely on this legalistic defense – and they don’t decide their best course is to say nothing and wait for the whole thing to blow over – their only alternatives are to say the experiment was done without their knowledge or approval, or that they approved it but now realize they did so in error – either of which makes them look incompetent. It’s not a nice position to be in.

  4. Hi Michael –

    Thanks for your comment, and nice to see you last night.

    I don’t think this experiment is a violation of either the Convention or the Protocol, for the following reasons:

    Granted that the Protocol operates by a general prohibition of dumping, with exceptions for various innocuous materials listed in Annex 1 (and even dumping of these materials requires permits granted by national authorities in either the loading state or vessel flag state). But Article 1.4.2.2 of the Protocol explicitly excludes from the definition of dumping, “placement of matter for a purpose other than the mere disposal thereof …” Even absent additional text on the matter, it’s easy to argue that the purpose of ocean fertilization is not the mere disposal of the material.

    But the parties did address the question of whether ocean fertilization falls within the definition of “dumping” in their 2008 resolution, in two ways. First, in paragraph 2 of the Resolution, they stated that “… ocean fertilization is any activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans.” By stating a “principal intention” that is something other than disposal, this clearly appears to imply that ocean fertilization – even not for research – falls under the above exclusion from the definition of “dumping” in the Protocol.

    Moreover, for ocean fertilization *research*, the next paragraph makes the point even more strongly, stating that “in order to provide for legitimate scientific research, such research should be regarded as placement of matter for a purpose other than the mere disposal thereof under Article III.1(b)(ii) of the London Convention and Article 1.4.2.2 of the London Protocol” – which I would file under the heading “in case you didn’t get it when we said it above.”

    Note as well that neither the Protocol nor any relevant decisions or resolutions define “legitimate scientific research,” or establish an authoritative procedure for determining what activities count as such. So until Parties adopt some legal framework to operationalize the current Assessment Framework, or otherwise enact binding controls on fertilization, there is no extant obligation that this experiment violated. The closest thing that might be found to a violation lies in paragraph 6 of the resolution, which states that “until specific guidance is available, Contracting Parties should be urged to use utmost caution and the best available guidance to evaluate scientific research proposals” – but even here the language is explicitly hortatory overall, and in addition contains enough ambiguities that Canadian officials could readily declare that’s what they did.

    None of this is to say that this flap is not embarrassing for Canadian officials. It surely is – and they may well not want to rest their defense of their position on the claim that they didn’t actually violate any legally binding obligation. (They have tried that extensively in the case of the Kyoto Protocol, and even though their position is legally correct it hasn’t played very well.) But they are caught in quite a bind. If they don’t rely on this legalistic defense – and they don’t decide their best course is to say nothing and wait for the whole thing to blow over – their only alternatives are to say the experiment was done without their knowledge or approval, or that they approved it but now realize they did so in error – either of which makes them look incompetent. It’s not a nice position to be in.

  5. In terms of carbon sequestration, the project’s supposed purpose (especially if they are seeking to receive carbon credits) isn’t having that great of an effect.
    See this article (http://www.nature.com/nature/journal/v461/n7262/full/461347a.html) which suggests that even if we were to contiuously fertilize the ocean we wouldn’t be able to mitigate the effects of climate change. Also this article (“Deep carbon export from a Southern Ocean iron-fertilized diatom bloom” Smetacek, V. et al. Nature 487, 313–319 (2012) doi:10.1038/nature11229) while showing that carbon sinking is possible, still says it only works by getting the carbon into the deep ocean layers so that it isn’t mixed with the atmosphere anymore. This has only been shown to work in the Southern Ocean (where the water is denser and colder and less likely to mix) and the conditions within the Pacific where this dumping took place are much different.

    Really this sounds to me like a private company attempting to make money off of the voluntary carbon markets through iffy science and misleading promises to First Nations people.

    As for whether an international agreement has been breached, I agree with you on the principle that it isn’t legally binding, but almost no international agreements around environmental issues are legally binding. However the gov’t of Canada did sign the London Protocol and if they were sponsoring this project I hope they would have taken that more into consideration. In addition, I think you might agree that while the agreements lack enforcement or concrete commitment, Russ George’s claim that the agreements are mythical is ridiculous.

    By the way I am an undergraduate student studying both international environmental law and policy as well as fisheries and marine sciences at College of the Atlantic.

  6. In terms of carbon sequestration, the project’s supposed purpose (especially if they are seeking to receive carbon credits) isn’t having that great of an effect.
    See this article (http://www.nature.com/nature/journal/v461/n7262/full/461347a.html) which suggests that even if we were to contiuously fertilize the ocean we wouldn’t be able to mitigate the effects of climate change. Also this article (“Deep carbon export from a Southern Ocean iron-fertilized diatom bloom” Smetacek, V. et al. Nature 487, 313–319 (2012) doi:10.1038/nature11229) while showing that carbon sinking is possible, still says it only works by getting the carbon into the deep ocean layers so that it isn’t mixed with the atmosphere anymore. This has only been shown to work in the Southern Ocean (where the water is denser and colder and less likely to mix) and the conditions within the Pacific where this dumping took place are much different.

    Really this sounds to me like a private company attempting to make money off of the voluntary carbon markets through iffy science and misleading promises to First Nations people.

    As for whether an international agreement has been breached, I agree with you on the principle that it isn’t legally binding, but almost no international agreements around environmental issues are legally binding. However the gov’t of Canada did sign the London Protocol and if they were sponsoring this project I hope they would have taken that more into consideration. In addition, I think you might agree that while the agreements lack enforcement or concrete commitment, Russ George’s claim that the agreements are mythical is ridiculous.

    By the way I am an undergraduate student studying both international environmental law and policy as well as fisheries and marine sciences at College of the Atlantic.

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Edward A. (Ted) Parson is Dan and Rae Emmett Professor of Environmental Law and Faculty Co-Director of the Emmett Institute on Climate Change and the Environment at the U…

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