The search is on for new regulatory approaches that radically improve on the environmental performance of the current regulatory regime. As environmental threats, such as climate change, are becoming ever more acute and serious, and public funds simultaneously increasingly scarce, technology is becoming part of the standard toolbox of environmental regulators. This being so, we can no longer postpone thinking about the implications of the use of technology for environmental law.

First and foremost, this is because changes in one mode of regulation will reverberate across the regulatory landscape. Norms that would be challenged by the employment of technologies are in particular those pertaining to access to environmental information, public participation in environmental decision-making and access to justice in environmental cases. These norms not so much regard the effectiveness of environmental regulation, but seek to safeguard its legitimacy. Legitimacy, in this context, implies that both the goals pursued by regulation are proper (or, put more specifically, that regulation responds to major environmental needs) and that regulators pursue those goals in the right way (respecting fundamental rights, proportionality, taking account of principles of environmental law, such as polluter pays, precaution etc.).

In general terms, the paper hence revolves around questions concerning (a) the environmental potential of the employment of technology and (b) the compatibility of the use of technology with the existing regulatory landscape. We will look into these issues by focussing on one area where technological innovation may profoundly impact on environmental law: geo-engineering. Geo-engineering is defined as deliberate large-scale manipulation of the planetary environment to counteract anthropogenic climate change. (International) legislation explicitly aimed at regulating the various forms of geo-engineering is still absent. We will analyse how international law should react on the emergence of these innovative technologies. A twofold response seems in order. First, the development and deployment of these technologies needs to be regulated in such a way as to avoid unwanted negative impacts on the environment. Second, legislation may be required to embed geo-engineering within the existing regulation. We will show the various ways in which this can be done. This case, thus, offers an interesting opportunity to explore both the potential and risks that arise when using new technologies to combat environmental degradation.

Geoengineering refers to a variety of risky, controversial, and untested techniques to “engineer” the Earth’s climate at a planetary scale. The goal of geoengineering is to combat climate change by either removing carbon dioxide from the atmosphere or blocking a fraction of the Sun’s radiation. Proposed geoengineering techniques include ocean fertilization, in which large quantities of iron would be dumped into the ocean to stimulate phytoplankton growth, and stratospheric aerosol release, in which tiny sulfate particles or other materials would be sprayed continuously into the stratosphere. Because geoengineering would necessarily have global effects, it raises significant questions of international technology governance. Although the global dimensions of governance will complicate geoengineering oversight, recognition of the early need for governance offers some hope for successfully adopting a proactive approach. The paper briefly reviews international law potentially applicable to geoengineering and suggests recommendations for governance.

Given the significant and global effects that geoengineering would have, formal international law (i.e., treaty-based law) seems necessary, but it tends to be slow and not terribly effective. Moreover, international legal institutions often are subject to criticism as undemocratic. Bottom-up self-governance, however, seems an even less attractive option, given their lack of accountability and the likelihood that scientific and industrial interests would dominate such an approach. Ultimately, we will need for both formal and informal oversight, as well as mechanisms for incorporating greater public participation.

Introduction

The main goal is: To Promote the Responsible Development of BCGIN S/T – enabled materials, processes, and products, with an approach for helping to ensure that researchers, manufacturers, regulators and others have the necessary information on potential risks and how to prevent, avoid, or mitigate them.

The German sociologist Ulrich Beck (1992)has diagnosed contemporary society as showing “organized irresponsibility”: modern technological society allows scientists, engineers and industry to develop and introduce all sorts of new technologies (chemical, nuclear, genetic modification) while it structurally lacks means to hold anyone accountable.

The first generation of environmental problems was met in the US, EU and most developed countries largely through a regulatory strategy (government develops standards for achieving society's environmental goals, applies those standards to categories of pollution sources, establishes mechanisms for overseeing conformance with those standards and then applies punitive sanctions in case of non-conformance).

Since the 1980s, Member States governments also have drawn increasingly on information as a strategy (environmental and health agencies began to use risks communication as a way of informing people about risks), i.e. soft law (communications, action plans and programs, green and white papers, etc.) well developed in the EU Environmental policy and law.

The environmental and health risks that may be associated with BCGIN S/T are one of Third-generation problem; First, industrial facilities pollution, and Second, patterns of land use and development, degradation of the global commons. So, BCGIN S/T present complex and distinctive challenges to the public and private institutions responsible for managing environmental and healthy risks in society.

Environmental Law (EL) is a collection of principles, rules and regulations dealing with the interaction of human society and nature. The field of EL focuses on the interpretation of these principles related to preventing damage to the land, water, air, living creatures and property, including socio-economic, health and cultural impacts. The field also extends to the rights claimed over and on behalf of land, water, minerals, plants, and animals, determining who gets what and what remains.

The EL system is an organized way of using all of the laws in our legal system to minimize, prevent, punish or remedy the consequences of actions which damage or threaten the environment, public health and safety. The field ranges from government regulations to case law and generally accepted principles relating to liability for the release of substances into the environment, intentionally or negligently, which related in harm.

Proposal

My proposal is based on the two recent cases developed in the EU Environmental law and policy:

First is the European Court of Justice (ECJ) Cases: C-58/10 until 68/10, Monsanto SAS and others 22/03/2011. It is about Preliminary ruling on GMO crop emergency measures in France. This reference for a preliminary ruling was made out of eleven (11) joined procedures at the French Council of State and concerned a ban issued by France on cultivation of the GMO corn crop MONO810. Advocate General (AG) Mengozzi found that the procedure for emergency measures under Article 23 of Directive 2001/18/EC relating to the deliberate release into the environment of GMOs was not applicable. Instead, Regulation EC 1829/2003 on Genetically Modified Food and Feed applied in his view. The AG further found that as a consequence, emergency protective measures could only be taken under Article 34 of Regulation. The later provision stipulates that emergency measures can be taken where “it is evident that product (...) are likely to constitute a serious risk to human health, animal health or the environment”.

By comparison, Article 23 of Directive would have allowed for emergency measures if a Member State had “detailed grounds for considering that a GMO (...) constitutes risk to human health or the environment”. After considering that both provision form an expression of the precautionary principle, and considering the explanation given to that principle by the European Court of Justice (ECJ) and in EU Legislation, the AG concluded that emergency measures, whatever based on the Directive or Regulation (and despite their differences in wording), can only be taken in cases where the risk is considerable.

The precautionary principle however tells that precautionary measures can be taken in case where science is not (yet) able to assess the probability risk at hand.

Second is about actual GMOs issue in the EU, i.e. EU Parliament backs national right to cultivation bans. EU Member States should have the flexibility to ban or restrict the cultivation of genetically modified crops and should be able to cite environmental motives for doing so, according to MEPs voting on draft legislation (1st reading in co-decision procedure; adopted with 548 votes in favor, 84 against and 31 abstentions). “I'm pleased that the EU Parliament has reached on agreement on difficult issue of GMOs, which has been an issue of public concern for years. If the Council manages to find common position, this balanced agreement will allow countries and regions the right to not grow GMOs if they so choose.”

The Commission had proposed to grant EU Member States the right to ban crops on all but health or environmental grounds, which were to be solely assessed by the European Food Safety Authority. Committed to ensuring a firmer legal basis in the context of international trade rules, EP insisted that MS should not be prevented from stating additional environmental grounds.

An EU-level safety check and authorization will continue to be a precondition to a green light for growing GMOs, and its guidelines need updating. Only a strain of GM maize and one modified potato are currently authorized for cultivation in the EU and most MS do not currently grow either crop commercially. Austria, France, Greece, Hungary, Germany and Luxembourg have activated a “safeguard clause” in the current EU Directive 2001/18/EC to expressly prohibit cultivation of certain GMOs.

Nevertheless, there is one array of increasingly sophisticated materials that are emerging from advances in science, technology, and engineering that do demand careful consideration of the new risks they might pose.

According to recent analyses by the World Resources Institute, Climate Analytics, and the WWF, the pledges made by parties to the United Nations Framework Convention on Climate Change (UNFCCC) pursuant to the Copenhagen Accord developed at COP15 put the world on course for temperature increases of 3-3.9C above pre-industrial levels by 2100. This could have disastrous consequences for human institutions and natural ecosystems, including massive sea level rise, eradication of coral reefs throughout the world, and potentially catastrophic declines in agricultural production, especially in the global South. As a consequence, increasing attention has been devoted to a series of potential responses that were once considered “taboo,” and “forbidden territory,” climate geoengineering. Climate geoengineering is defined by the National Academy of Sciences as “options that would involve large-scale engineering of our environment in order to combat or counteract the effects of changes in atmospheric chemistry.” These methods include ocean iron fertilization, marine cloud albedo enhancement, stratospheric sulfate injection, air capture, and the use of planetary sunshades, all of which have the potential to substantially ameliorate, or reverse, current warming trends. At the same time, all of these schemes could have serious negative ramifications, including adverse regional impacts with momentous equitable implications, e.g. disruption of monsoonal cycles or increases in regional temperature trends, as well as potential global impacts, e.g. depletion of the ozone layer.

While geoengineering was once considered to be “taboo” in the forum of climate change policymaking, the increasing desperation engendered by the specter of passing critical temperature thresholds has led to increasing interest in the approach, including by key stakeholders, such as the U.S. Congress and U.K. Parliament, the UK’s Royal Society, and the U.S. National Academy of Science. Even President Obama’s chief science advisor has indicated that geoengineering should “not be taken off the table” as a potential component of climate policymaking.

As a potential embrace of climate geoengineering becomes more likely, the need for effective governance mechanisms for research and development, as well as potential deployment is emerging as an urgent priority. This is a quintessential example of “Global Environmental Law at a Crossroads,” as geoengineering will present immense challenges in adapting current international environmental law to consider potential issues such as constraining of unilateral deployment and potential liability mechanisms, as well as developing new instruments to fill in lacunae.

This presentation suggests that any governance mechanisms developed in the future should take into account the procedural and substantive protections accorded by international human rights law instruments. The presentation will outline why a human rights lens is particularly salutary in the context of geoengineering governance, as well as outlining specific pertinent provisions of international and regional instruments. Additionally, the presentation will address problems in applying a human rights approach in this context, including causality and extraterritorial application of human rights instruments.