Ensuring That We Hear the Voices of the Vulnerable: Toward a Human Rights-Based Approach to Bioenergy and Carbon Capture and Storage – Wil Burns
A version of this piece with references can be found here: Burns, The Paris Agreement and Climate Geoengineering Governance, CIGI Papers No. 111 (October 2016)
In the past few years, there has been growing interest in potential large-scale deployment of Bioenergy and Carbon Capture and Storage (BECCS). The vast majority of the integrated assessment models in the IPCC’s Fifth Assessment model which effectuated holding temperatures to below 2°C contemplated large-scale deployment of BECCS, with a median commitment of 12 gigatons of carbon dioxide removal annually in the latter half of the century. Many commentators and policymakers have also argued that so-called “negative emissions technologies,” such as BECCS, will be critical to meet the Paris Agreement’s objectives to “achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.”
BECCS seeks to generate energy by converting vast amounts of biomass into liquid biofuels, or via the direct burning of biomass at appropriately equipped power stations. Bioenergy systems in BECCS are paired with a carbon capture method, facilitating the capture of carbon dioxide emissions at the source of combustion. Carbon dioxide can then be stored terrestrially or under the world’s oceans, or potentially utilized for other purposes, such as enhanced oil recovery, biochemical conversion into biofuels, or for energy storage technologies.
Some members of the climate engineering community have sought to portray carbon dioxide removal options such as BECCS as “benign,” or “safe,” perhaps in comparison to potential risks associated with solar radiation approaches. However, at least in the case of BECCS, this clearly may not prove to be true. Delivery of a relatively modest three gigatons of carbon dioxide equivalent negative emissions annually from BECCS would require conversion of a land area of approximately 380-700 million hectares in 2100, translating into 7-25% of agricultural land and 25-46% of arable and permanent crop area. This could result in massive increases in food prices for some of the world’s most vulnerable people. For example, one recent study indicated that even modest increases in bioenergy development could increase the number of malnourished children in sub-Saharan Africa by 3 million, with an 8% decline in calorie availability.
BECCS could also have a huge water footprint. By 2100, BECCS feedstock production at scale could require approximately 10% of the current evapotranspiration from all global cropland areas, or of the same magnitude as all current total agricultural water withdrawals This is at a time that when global water withdrawals are projected to increase by 20% and the number of people experiencing water shortages could grow by billions. Large deployment of BECCS could also exacerbate this threat by further degrading water quality by salinization, and from fertilizer and pesticide runoff associated with production of bioenergy feedstocks.
Many of the most propitious areas for bioenergy development are also characterized by high-levels of biodiversity, with a large share of endemic species. Recent research indicates that large-scale BECCS deployment could have profound impacts on biodiversity, primarily due to potential land conversion. More specifically, BECCS could “vastly accelerate the loss of primary forest and natural grassland, resulting in the loss of up to one-fifth of natural forests, grasslands and savannahs. This could precipitate habitat loss for many species, and ultimately, “massive” changes in species richness and abundance. Indeed, one recent study concluded that large-scale deployment of BECCS could result in a greater diminution of terrestrial species than temperature increases of 2.8°C above pre-industrial levels. Other potential impacts of BECCS deployment could include undermining the income of those without land tenure in developing countries where large amounts of land might be diverted for bioenergy production, including through “land grabs,” as well as substantial increases of pollution, including through massive new perturbations of the nitrogen cycle.
Institutional governance mechanisms for climate engineering research and/or deployment should be structured to facilitate consideration of the potential impacts of BECCS on human rights.
How could individuals and groups that might be adversely impacted by BECCS deployment seek to protect their interests, and encourage strategies that can ameliorate associated risks? One approach would be to invoke human rights interests. For example, a persuasive case could be made that BECCS’ potentially negative impact on food security and prices could violate the right to food, as recognized, inter alia, under the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Universal Declaration of Human Rights. The threats to water supplies that might be posed by BECCS could be construed to violate the right to water, recognized, inter alia, under the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. Loss of biodiversity could undermine the right to health under instruments such as Universal Declaration of Human, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child, as well as the rights of indigenous peoples to access to the benefits of biodiversity as a resource under instruments such as the Convention Concerning Indigenous and Tribal Peoples in Independent Countries and United Nations Declaration on the Rights of Indigenous Peoples.
Institutional governance mechanisms for climate engineering research and/or deployment should be structured to facilitate consideration of the potential impacts of BECCS on human rights. This could be operationalized by incorporating a Human Rights-Based Approach (HRBA) into such institutions. A HRBA The hallmark of the HRBA is a focus “on the relationship between the rights-holder and the duty-bearer and revealing gaps in legislation, institutions, policy and the possibility of the most vulnerable to influence decisions that have impact on their lives.” An HRBA establishes a normative framework for addressing systematic and structural injustices, social exclusions and human rights repressions. The HRBA has been embraced by international, national, and sub-national governmental and non-governmental organizations in a wide array of contexts, including, health, development, and environmental protection.
Drawing on guidelines developed by human rights and development institutions, applying the HRBA to consideration of BECCS as a climate engineering option should include the following elements:
1. Human Rights Impact Assessments
The HRBA would facilitate a process to identify the specific potential impacts of BECCS and associated potential human rights considerations, as well as the specific groups likely to be impacted. A reliable method to effectuate this goal would be to mandate the preparation of a Human Rights Impact Assessment (HRIA) for individual BECCS programs, and on a programmatic basis.
HRIAs are assessment protocols that assess the consistency of policies, legislation, projects, and programs with human rights. It is a particularly appropriate instrument in the context of emerging high-risk technologies such as climate engineering in that its focus is not on past violations, but rather on developing tools to avoid violations of rights in the future.
An HRIA process in the context of BECCS should include the following elements:
- A scoping process that would identify rights-holders and duty-bearers, and develop relevant indicators to use in the process to help assess potential impacts and their relevance to the human rights interests of rights-holders.
In identifying rights-holders, the HRBA focuses on protection of the rights of excluded and marginalized populations, including those whose rights are most likely to be threatened. Indicators should be designed to assess State intent to comply with human rights mandates, measure State implementation of human rights obligations, and measure State human rights performance.
- An evidence gathering process to help assess the potential impacts of deployment of BECCS.
One critical requirement of the HRBA process would be greatly enhanced scientific understanding of the impacts of large-scale deployment of BECCS, including regional impacts that might adversely impact specific potential rights-holders.
- An ex ante deliberative process between rights-holders and duty-bearers that would help identify specific concerns of rights-holders and duty-bearers.
A critical component of any potential governance architecture for climate engineering is engagement of populations in regions where impacts are likely to be most extreme, especially in developing countries. This participatory component of the HRIA process could help promote this objective by operationalizing procedurally oriented human rights provisions, including the right to information and the right to public participation.
In developing this component of the HRIA, efforts should be made to go beyond merely soliciting public opinion on climate engineering issues, usually characterized as public communication or public consultation, to the establishment of large-scale public deliberative processes. Public deliberative processes seek to afford citizens, or a representative subset thereof, the opportunity to discuss, exchange arguments, and deliberate on critical issues, as well as to seek to persuade one another of the judiciousness of their solutions.
2. Analysis and Recommendations
This element of the HRIA process should include assessment of the human rights impacts of BECCS proposals, and an assessment of State responsibilities to respect, protect and fulfil human rights in this context. This step should also include the critical element of the development of recommendations to avoid or ameliorate potential impacts on human rights, or alternative means to achieve climatic goals that would avoid human rights violations. This obligation discussing mitigation and alternative options is also an important component of environmental impact assessments at both the international and national levels.
- Assessment of the capacity of rights-holders to exercise their rights and duty-bearers to fulfill their respective obligations, as well as strategies to bolster capacities.
Capacity, broadly defined, is a critical consideration in determining the ability of duty-bearers to meet their obligations and rights-holders to claim their rights. In the context of a human rights assessment of BECCS, this should include an assessment of human and economic capacity of duty-bearers to protect human rights interests. It should also an assessment of rights-holders’ capacities, including access to pertinent information, especially for marginalized or traditionally excluded groups, and ability to obtain redress.
- Establishment of a program to monitor and evaluate both outcomes and processes, guided by human rights standards and principles
Implementation of a human rights monitoring programs in the context of BECCs should include the use of role and capacity analysis to assess the obligations of institutions at the international and national level to monitor the impacts of climate engineering, as well as their capacity and analysis of existing information systems and networks to assess critical information gaps to effective monitoring by decision makers, rights-holders and rights-bearers.
Monitoring could be particularly effective in terms of deployment of BECCS. Projections of potentially sustainable levels of bioenergy deployment are “systematically optimistic” and not based on empirical observations or practical experience. One way to address this challenge is to foster “learning by doing” by close monitoring of incremental efforts to expand the role of biomass in energy production. Close monitoring of the first few exajoules of energy crops would help realistically assess purported benefits of integrated crop and energy production, and the sustainability of energy crop extension into allegedly marginalized, degraded and deforested lands.
- Ensure that programs are informed by recommendations from international human rights bodies and mechanisms
The UNFCCC would benefit from collaboration with human rights bodies, including UN bodies, such as the Office of the United Nations High Commissioner for Human Rights; the United Nations Human Rights Council; human rights treaty bodies, such as the Human Rights Committee and the Committee on the Rights of the Child; regional bodies, such as the Inter-American Commission on Human Rights and the African Commission on Human and People’s Rights; and non-governmental organizations, such as Human Rights Watch and the International Red Cross. Collaboration should also be explored with other organizations that may help inform the process, such as the Global Bioenergy Partnership (GBEP), comprised of both State and non-State actors. The GBEP has developed a set of sustainability indicators intended to inform decision-making and foster sustainability, including in the context of socioeconomic considerations.
The Paris Agreement is likely to be the key institution for governance of BECCS, as it explicitly provides for the use of carbon dioxide removal processes to help meet party INDCs. Given the fact that the Agreement explicitly calls for consideration of the human rights impacts of climate response measures in its Preamble, I would suggest that the Parties begin to consider how a HRBA might inform consideration of BECCS in the future. This could be facilitated through the Forum on the impact of the implementation of response measures, which is administered by the Subsidiary Body for Science and Technological Advice and the Subsidiary Body for Implementation. This could provide a good model for incorporation of the HRBA into other pertinent institutions in the future also.
There has been extensive discussion in recent years of how climate change is adversely affecting the human rights of some of the world’s most vulnerable peoples. Every effort should be made to ensure that our efforts to address climate change do not do the same.
Wil Burns, PhD, is a Co-Executive Director of FCEA and is based in Berkeley, California. He also serves as non-residential scholar at American University’s School of International Service and a Senior School at the Centre for International Governance Innovation in Canada. He previously served as the Director of the Energy Policy & Climate program at Johns Hopkins University in Washington, DC. He also serves as the Co-Chair of the International Environmental Law Committee of the American Branch of the International Law Association. He is the former President of the Association for Environmental Studies & Sciences, and former Co-Chair of the International Environmental Law interest group of the American Society of International Law and Chair of the International Wildlife Law Interest group of the Society. He has published over 80 articles and chapters in law, science, and policy journals and books, and has co-edited four books. He holds a Ph.D. in International Environmental Law from the University of Wales-Cardiff School of Law.