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18 Eur. Energy & Envtl. L. Rev. 243 (2009)
Biochar and Waste Law: A Comparative Analysis

handle is hein.kluwer/eelr0018 and id is 243 raw text is: European Energy and Environmental Law Review October 2009 243 Biochar and Waste Law: A Comparative Analysis Biochar and Waste Law: A Comparative Analysis Caroline Van den bergh* The UNCCD - a sister convention to the UNFCCC - submitted a proposal during the Climate Change Conference in Poznan in December 2008 to get biochar recognized as a climate change mitigation strategy for the post 2012 treaty to be negotiated in Copenhagen in December 2009. Biochar is a stable carbon-rich material which can store carbon for thousand of years in soils while increasing crop productivity. The lEA explicitly names biochar in its World Energy Outlook 2008 as a viable carbon- negative technology. This article gives an insight into this new climate change mitigation strategy and comparatively analyses whether biochar is waste in the EU and the US and whether the pyrolysis treatment, transportation and storage of biochar may be exempted from the significant 'regulatory burden' pending on the classification of waste. 1. Introduction In climate change mitigation we have ignored what is beneath our feet. In a recent interview in the New Scientist, James Lovelock considers biochar as the one chance we have left to save humankind from catastrophic climate change.' Biochar is a carbon- rich material resulting from a process called pyrolysis whereby biomass is heated in an oxygen-free or low oxygen environment to generate bio-energy.2 Biochar can be used as a soil fertilizer and at the same time it is a carbon negative technology since its stable molecular structure sequesters carbon in soils which is subse- quently fixed during plant photosynthesis. 3 It can store carbon for thousand of years in soils and removes more C02 from the atmosphere than the pyrolysis process produces.4 This makes biochar not only a viable alternative for energy-intensive carbon capture and storage (hereinafter CCS) but also a viable alternative for several polluting soil fertilizers. The United Nations Convention to Combat Deserti- fication (hereinafter UNCCD) -a sister convention to the United Nations Framework Convention on Climate Change (hereinafter UNFCCC) - submitted a proposal during the Climate Change Conference in Poznan in December 2008 to get biochar recognized as a climate change mitigation strategy for the post 2012 treaty to be negotiated in Copenhagen in December 2009.5 The International Energy Agency (hereinafter IEA) empha- sized that the development of carbon negative technol- ogies are necessary in order to stop global warming. In its World Energy Outlook 2008 the IEA explicitly names biochar as a viable carbon negative technology.6 The purpose of this paper is to examine how waste laws in the European Union (hereinafter EU) and the United States of America (hereinafter US) were not designed with biochar as a means of carbon storage in mind and how the regulatory burden17 pending on the classification of biochar as waste could discourage the development of biochar as a means of climate change mitigation. The choice of the EU and the US can be Justified by their membership of the Organisa- tion for Economic Co-operation and Development (hereinafter OECD) and a comparable amount of biomass energy production per years but a different approach towards climate change mitigation i.e. Kyoto Protocol and the Basel Convention. * Caroline Van den bergh is an LL.M. student in Energy and Environmental Law at the Institute for Environmental and Energy Law (LEEL) at the Catholic University of Leuven. The author would like to thank Professor Dr. Geert Van Calster for comments on this article. The author can be contacted by e-mail at caroline.vdbergh@gmail.com 1G. Vince, One last chance to save human kind, 23 January 2009, New Scientist, Issue 2692, available online at http://www.newscientist.com (consulted on 7 April 2009). 2 J. Lehmann and S. Joseph, Biochar for Environmental Management: An Introduction, in J. Lehmann and S. Joseph, Biochar for EnvironmentalManagement. Science and Technology, London, Earthscan, 2009, 1-3. 3~ P. Blackwell, G. Riethmuller and M. Collins, Biochar Application to Soil, in J. Lehmann and S. Joseph, Biochar for EnvironmentalManagement. Science and Technology, London, Earthscan, 2009, 208-213; S. Bruun, Life cycle assessment of biochar production, available online at www.agri.life.ku.dk (consulted on 10 May 2009). 4~ J. Lehmann, C. Czimczik, D. Laird and S. Sohi, Stability of Biochar in the Soil, in J. Lehmann and S. Joseph, Biochar for Environmental Management. Science and Tech- nology, London, Earthscan, 2009, 183 -200; International Biochar Initiative, Biochar can be carbon- negative, December 2008, available online at www.biochar-interna- tional.org (consulted on 14 April 2009); Press release: M.L. Wald, For Carbon Emissions, a Goal of Less than Zero, 26 March 2008, available online at www.nytimes.com consulted on I11 April 2009). UNCCD submission containing ideas and proposals on Paragraph 1 of the Bali Action Plan, Use of biochar (charcoal) to replenish soil carbon pools, restore soil fertility and sequester C02, 10 December 2008, available online at: www.unccd.int (consulted on 7 April 2009). 6 IEA, World Energy Outlook 2008, London 2008. 7 G. Van Calster, The EC Definition of Waste: the Euro Tombesi Bypass and Basel Relief Routes, European Business Lawv Review 1997, 137-43. 8 M. Wilder, P. Curnow and L. Fitz-Gerald, The Impact of Waste Legislation on the Use of Biomass as a Renewable Energy Source, available online at www.bcse.org (con- sulted on 17 April 2009).

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