Governing reliance on carbon dioxide removal: The role of climate litigation

The world’s leading scientists are clear: limiting global warming to 1.5°C involves ‘rapid and deep and, in most cases, immediate greenhouse gas emissions reductions in all sectors this decade’. Yet global efforts to reduce greenhouse gas emissions are ‘woefully insufficient to meet the temperature goal of the Paris Agreement’. In this context, many climate advocates are concerned that governments and companies appear to be relying on the promise of future large-scale removals of carbon dioxide, rather than adopting deep emissions reductions now.

Over the past decade, climate litigation has become a significant tool for affecting ‘the outcome and ambition of climate governance’. Looking forward, we expect that strategic climate litigation will increasingly pursue scrutiny of, and accountability for, governments’ and companies’ reliance on carbon dioxide removal (CDR), giving voice to a range of concerns regarding such reliance. In this blog, we suggest that existing climate cases offer some early indications of possible ‘hooks’ or framings for these challenges.

What is CDR and what are the concerns about its use?

CDR involves removing CO₂ from the atmosphere, and storing it durably on land, in the ocean, in geological reservoirs or in products. CDR techniques include afforestation and reforestation, bioenergy with carbon dioxide capture and storage (BECCS), and direct air carbon dioxide capture and storage (DACCS). Together with greenhouse gas (GHG) emissions reductions, CDR falls under the umbrella of climate change ‘mitigation’.

But it is the ‘balance’ between the extent of GHG emissions reductions and the degree of reliance on removals – in governments’ and companies’ climate plans – that is a source of concern for many climate advocates. An overarching concern is that governments and companies are delaying near-term emissions reductions in reliance on the promise of future large-scale CDR – on a scale which may never be possible – which thus risks putting the Paris Agreement temperature limit out of reach for good (see e.g. this survey of the debates in the literature).

We note, at this point, that the related practice of ‘offsets’ may include, but is not limited to, CDR activities. In simple terms, offsetting refers to reducing emissions or increasing removals through activities external to an actor, in order to compensate for emissions such that an actor’s net contribution to global emissions is reduced. In this blog we focus on specific concerns relating to CDR – which form part of the broader debates regarding offsetting claims.

There are a host of concerns about large-scale reliance on CDR. At their core is the view that governments and companies appear to be relying on a scale of removal (and storage) that is far beyond the physical limits of any currently available techniques – creating a high risk of future non-deployment, as well as significant implications for human rights and ecological integrity.

For example, the Land Gap Report found that countries’ climate pledges anticipate relying on approximately 1.2 billion hectares of land for CDR – almost four times the size of India, and equivalent to total global cropland. Such reliance on land to draw down emissions (and store them) has significant implications for the rights and livelihoods of Indigenous Peoples and local communities, as well as food and water security and biodiversity, as Human Rights Watch and others have identified. Looking across the range of CDR techniques, the IPCC has cautioned that ‘CDR ramp-up rates and absolute deployment levels are tightly limited by technoeconomic, social, political, institutional and sustainability constraints’. The issue of durable storage is also crucial, as identified in the recent State of CDR Report: a key question is, what safeguards are in place to ensure that carbon, once removed, is durably stored? Or, in the case of land-based CDR: what happens when trees burn down?

Compounding these concerns is a lack of transparency: governments and companies are not disclosing the purpose, extent and type of proposed CDR reliance (as documented e.g. in ECIU and Oxford Net Zero’s global assessment of net zero targets and in Ecologic’s review of CDR frameworks in EU Member States).

In its latest report, the IPCC summarised these concerns, and indicated that they highlight ‘the need for appropriate CDR governance and policies’, and the need to limit overall dependence on CDR. The IPCC emphasised that ‘CDR cannot serve as a substitute for deep emissions reductions’ and noted ‘the risk of excessively relying on CDR to compensate for weak mitigation action until 2030’, including the risk that CDR techniques ‘might not deliver the intended benefit of removing CO₂ durably from the atmosphere’.

We turn now to the role that climate litigation may play in the governance of CDR use by governments and companies.

The role of climate litigation in governing CDR reliance

Over the past decade, climate litigation has been mobilised to shape the outcome and ambition of climate governance. In successful climate cases, governments have been ordered to increase their emissions reduction efforts (e.g. Netherlands; Germany), to clarify their climate plans (e.g. Ireland), and to meet their existing targets (e.g. France). The case of Milieudefensie v Royal Dutch Shell was the first time that a court ordered a company to increase its emission reduction efforts.

Yet very few climate cases against governments or companies have directly addressed concerns regarding CDR reliance. We anticipate that the focus on CDR is likely to increase rapidly in coming years, as concerns grow about the lack of near-term emissions reductions and consequent reliance on future, large-scale CDR.

Transparency as a first step to accountability

As noted above, many governments and companies fail to disclose the extent of proposed CDR reliance required to achieve their climate plans. We suggest that ‘procedural’ claims are likely to operate as an important first step, together with freedom of information requests, to determine the purpose, extent and/or type of an actor’s CDR reliance. These claims may play a critical transparency role and could be a foundation upon which more ‘substantive’ actions are developed, which we explore below.

Existing decisions indicate that judicial review claims may be a fruitful legal avenue for pursuing increased transparency around governments’ reliance on CDR (depending on the applicable statutory scheme).

For example, in Friends of the Irish Environment v Ireland, the Irish Supreme Court held that the Irish public was entitled, under the relevant statutory scheme, to know the state’s mitigation plan with a reasonable degree of specificity. This precluded excessively vague or aspirational reliance on CDR by the state to achieve its mitigation goals (at [128]–[130]).

In R (oao Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy, the English High Court expressly approved the Irish Supreme Court’s statements (at [250]), in a judgment upholding a challenge to the UK’s net-zero strategy under an analogous statutory scheme.

Similarly, the existing jurisprudence shows that consumer law claims may enhance transparency around companies’ CDR reliance. For example, companies’ advertisements of ‘carbon neutrality’ have recently been successfully challenged as misleading or deceptive in Switzerland, Germany and the Netherlands. Such challenges – while thus far framed around ‘offsetting’ rather than CDR specifically – are likely to be a useful vehicle for unpacking and testing the detail of companies’ CDR reliance.

Addressing substantive concerns regarding CDR reliance

Since 2015, there has been a significant increase in the number of rights- and tort-based climate cases pending and decided, especially against governments, which challenge their overall efforts to address climate change (see here, here and here). Put broadly, many of these cases are premised on obligations to take reasonable care and/or to take reasonable and appropriate measures to protect persons within a state’s jurisdiction from the harms posed by climate change. We include within this category cases based on tort or analogous civil law provisions, constitutional / fundamental rights claims, and claims based on business and human rights ‘due diligence’ statutes.

We anticipate that such rights- and tort-based climate cases against both governments and companies are likely to permit more substantive challenges to the purpose and extent of CDR reliance. For example, claims regarding the:

– connection between large-scale reliance on CDR and delaying emissions reductions, especially in light of developed country governments’ commitment to ‘take the lead’ in emissions reductions. These arguments formed part of the successful climate cases in Urgenda Foundation v Netherlands and Neubauer v Germany, as we outline below;

– lack of feasibility regarding the extent of the proposed reliance. For example, in Ecodefense v Russia, the plaintiffs argue that Russia proposes to rely heavily on CDR to achieve its mitigation targets but does not have the capacity to absorb as much CO₂as claimed in its 2020 Strategy (see further);

– social and environmental impacts of different types of CDR in an actor’s plans, such as potential impacts on food security, biodiversity and land rights; and

– inadequate governance mechanisms to ensure that removals actually happen – especially if the removals are taking place outside a government’s territory (i.e. via purchased ‘credits’).

The best guides to the likely direction of such future legal challenges are the decisions issued by the Dutch and German courts in the Urgenda and Neubauer proceedings – in which the courts engaged with the issue of CDR. Notably, these cases reached the apex court in each jurisdiction. 

In both cases, in simple terms, the courts examined the respective governments’ obligations to protect human rights and constitutional freedoms from the harms posed by climate change by taking measures to reduce GHG emissions (see further here). The Dutch and German courts emphasised that later-action scenarios, in which meaningful reduction of GHG emissions is delayed or postponed beyond 2030, inevitably lead to greater dependence on CDR to an extent which may preclude compliance with human rights or constitutional obligations. In both proceedings, the courts also made factual findings that CDR remains untested, still in development, and subject to multiple risks and concerns including as to economic viability, technical feasibility, international coordination, social impacts and, especially, emerging ecological risks (Urgenda, District Court [2.19], [4.32], [4.72]; Court of Appeal [49]; Supreme Court [7.2.5]; Neubauer, [33], [227]).

The German Federal Constitutional Court in Neubauer reviewed the emissions reduction targets set in German law for 2030 and beyond. The Court found that under these targets, Germany’s carbon budget would be almost entirely depleted by 2030 (at [231]). The Court ordered the legislature to ‘take precautionary measures in order to manage the reduction burdens anticipated after 2030 in ways that respect fundamental rights’ (at [247]). The reasoning was partly premised on a conclusion that CDR was presumptively impossible at scale, such that there was a finite remaining global CO₂ budget that was being irreversibly depleted with associated impacts on constitutional rights (at [33], [118]–[119],  [130], [185]–[187], [222], [227]). 

In Urgenda, the Dutch State sought to justify its emission reduction efforts up to 2020 (which were less than those outlined in the IPCC’s Fourth Assessment Report (AR4)) by relying on ‘later-action’ scenarios (from the IPCC’s Fifth Assessment Report (AR5)). Under the AR5 scenarios, less emissions reductions were required prior to 2020 due to greater subsequent reliance on CDR. Significantly, The Hague Court of Appeal and the Dutch Supreme Court were willing to look behind the IPCC’s scenarios at further academic evidence. The courts displayed a nuanced understanding that the inclusion of CDR in IPCC scenarios is merely a projection of what would happen if such technologies existed, without implying that CDR would either be available or would work at the required scale (Court of Appeal [49]; Supreme Court [7.2.5]). As such, the Dutch courts emphasised that the inclusion of CDR in the IPCC’s scenarios did not import a judgment as to the likelihood or feasibility of CDR deployment.

Given the evidence of significant risks and feasibility constraints, the Dutch Supreme Court held that the precautionary principle limited the extent to which the Government could rely on CDR to achieve a level of emissions reduction sufficient to comply with its duty to protect human rights (at [7.2.5]). In light of the uncertainty regarding the deployment of CDR and the risks involved if the assumed ‘potential’ of the removals is not realised, the Court found that delaying mitigation action on the basis of future CDR deployment would ‘run counter to the precautionary principle that must be observed’ in order to comply with the right to life and the right to respect for private and family life under Articles 2 and 8 of the European Convention on Human Rights, respectively.

These decisions offer important building blocks for future litigation against governments relating to substantive concerns about CDR reliance. 

In the corporate sphere, the courts’ approach to CDR remains to be seen.  In the successful tort-based action in the Netherlands in Milieudefensie v Royal Dutch Shell, the applicants had argued for the imposition of a specific reduction pathway on Royal Dutch Shell, in which net-zero by 2050 involved an absolute reduction of emissions by 45% in 2030 without the option of ‘compensation’ of CO₂ emissions by removals. The Hague District Court considered that excluding the possibility of CDR ‘goes beyond’ the ‘broad consensus’ it had identified from the approach of the IPCC, EU and Dutch State on the question of ‘compensation’ of CO₂ emissions (at [4.4.30]).  Thus, the Court was reluctant to engage in analysing the specific pathways or modalities by which a judicially-imposed target would be achieved (and the extent of reliance on CDR within that context), preferring to leave it to the company to design such pathways.

In Notre Affaire à Tous v Total, relying on France’s business and human rights ‘due diligence’ law, the plaintiffs challenged Total’s reliance on CDR as a lever or element of its climate strategy on the basis that it was inadequate to protect human rights and incompatible with the Paris Agreement’s temperature goals. The plaintiffs’ pleadings relied expressly on the findings in The Hague Court of Appeal and the Dutch Supreme Court in Urgenda regarding the limits of CDR and the implications of the precautionary principle. This case – one of the first of its kind – has recently been deemed inadmissible.  Thus, it still remains to be seen whether and how the French courts may in an appropriate case engage substantively with the merits of CDR reliance as the courts did in Urgenda and Neubauer.

Looking forward – what role for national and international law in identifying principled limits for CDR reliance?

In the coming years, we anticipate a greater number of climate cases – of all types – that address substantive and procedural concerns regarding CDR reliance.

In such cases, there is scope for principles of international environmental law such as the precautionary principle to play an enlarged role, building on the Dutch Supreme Court’s reasoning on this point in Urgenda. 

Other principles of international environmental law may also play a role in governing CDR reliance, especially in rights- and tort-based cases in which courts may be more likely to have regard to other bodies of law to inform the content of open-textured standards of reasonable care or reasonable and appropriate rights-protective measures. In this regard, the principles of equity and common but differentiated responsibilities and respective capabilities in the UN climate treaties may come into play, as litigators draw upon research regarding the ‘fair’ distribution of available removals.

Procedural and evidentiary arguments could also be developed and articulated to a greater extent than currently evident in pleadings and decisions. Importantly, in Urgenda, once the applicants had raised even limited evidence pointing to the uncertainties and risks around CDR, the courts held that the burden was on the state to provide adequate substantiation that CDR would work at the scale envisaged (Court of Appeal [49]; Supreme Court [7.2.5]).

To the extent that actors seek to rely on CDR, the application of the precautionary principle in Urgenda supports imposing the burden on the relevant government or company to prove with sufficient specificity that CDR at scale is economically viable, technically feasible, and adequately protective of human rights and ecological integrity.

The question of ‘governing’ CDR raises debates over the nature, purpose, extent and type of reliance on CDR by governments and companies. For an informed debate, the first step is greater clarity from governments and companies regarding their proposed reliance on CDR. We anticipate that courts will increasingly be called upon to compel actors to disclose this information – and then potentially to scrutinise the proposed use, especially given what’s at stake in this critical decade for climate action. In that context, we conclude by suggesting that there is a need for further analysis of the potential for international environmental law to offer guardrails and standards which may assist courts to make a meaningful contribution to climate governance in relation to CDR.