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7 Eur. J. Risk Reg. 60 (2016)
Future Prospects for Climate Engineering within the EU Legal Order

handle is hein.journals/ejrr2016 and id is 68 raw text is: 60 | Special issue on Regulating Climate Engineering in the European Union Future Prospects for Climate Engineering within the EU Legal Order Floor Fleurke* Introduction This article explores the prospects for the EU to de- velop a coherent policy regarding climate engineer ing (CE). To this end, we explore the most significant legal parameters derived from EU law from which such a future EU policy would have to arise. Obvi- ously, in view of the principle of conferral, it must first be established if the EU enjoys competences to initiate a discrete policy on climate engineering. The mere fact that the EU presides over a plethora of cli- mate mitigation and adaptation instruments is not sufficient to conclude that it likewise has competence to initiate a policy of intentional environmental change. Rather, precisely because climate engineer ing is such a different response to climate change than anything undertaken before, we must establish whether that difference is of a nature so as to rule out a future EU policy on climate engineering. That question, in turn, requires consideration of secondary EU environmental law that can be expect- ed to impose particularly important constraints on climate engineering. In particular, we propose to fo- cus on environmental impact assessment proce- dures, impacts on water, air, biodiversity and envi- ronmental liability. Ultimately what needs to be clar ified is whether the sum total of that body of sec- ondary environmental law mandates, encourages, discourages or prohibits climate engineering. Finally, climate engineering carries risks unlike any of the previous policy responses to climate change. Even if, as a matter of principle, it would turn out that primary and secondary EU environmental law are permissive as regards climate engineering, for climate engineering to be actually deployed it would need to pass the hurdle of the precautionary principle as well. This article therefore pays particu- lar attention to the operation of that core principle of EU environmental law in risk/risk settings such as these competence to act in this field against the back- ground of the EU's climate policy ambitions. Applied in the realm of climate engineering, precaution is per ceived as a double-edged sword. Climate engineering can be framed as a precautionary response against the risks of climate change. Simultaneously, precau- tion can be perceived as a brake on climate engineer ing measures, since they carry undeniable uncertain risks that could trigger precautionary constraints. The complexity of such a risk-risk trade off will be discussed, focusing on the potential of precaution to make a constructive contribution towards finding ways out of this wicked dilemma. It will be concluded that, even though the precau- tionary principle has not been designed to provide direction in risk/risk tradeoff dilemma's, its proce- dural and organizational functions are equally pro- ductive in these novel contexts. 1. EU's Competences and Climate Engineering Since climate change shows no sign of slow- ing down and no substantial progress is achieved at the international political level, new approaches such as climate engineering that offer quick results are be- ing considered by some Member States. There is a great variety in climate engineering techniques, and new techniques are currently being developed. Each form should be evaluated on its own merits, because they differ in numerous important respects, such as cost, risk and scale. However, they are distinguished in two broad categories: carbon dioxide removal (CDR) and solar radiation management (SRM). CDR would collect and sequester greenhouse gasses from the atmosphere. Examples include capturing carbon dioxide from ambient air, fertilizing oceans to in- crease biological uptake, and enhanced mineral weathering. CDR would address the threat of climate change relatively close to its cause, but would be ex- Floor Fleurke is assistant professor in EU environmental law at Tilburg Law School. The author wishes to thank the anonymous reviewers and Jesse Reynolds for their constructive comments. 1 Royal Society, Geoengineering the Climate: Science, Governance and Uncertainty (2009), at 17-18 EJRR 1|2016

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