This publication examines the development of international law on climate change and discusses what issues national and subnational legislative bodies may have to consider regarding climate change mitigation and forests.
Climate change presents the world with a daunting problem. Emerging science suggests that humans may be about to cause a major change in world climates. The economic and ecological stakes are high. In an ideal world, mature science would guide policy and legal reform. In the real world, we do not always have the luxury of certainty and the comfort of strictly rational decisions based on scientific insight. Responding to the challenge will require pioneering efforts in science, politics, pollution control, forest land management and law.
As described most recently in the Third Assessment Report of the Intergovernmental Panel on Climate Change (TAR), most scientists think that increased atmospheric levels of greenhouse gases, including carbon dioxide (CO2), contribute to climate change. Furthermore, the TAR sees strong evidence that most of the warming observed over the last 50 years is attributable to human activities. While burning of fossil fuels and deforestation add CO2 and other greenhouse gases to the atmosphere, vegetation and soils can function as net carbon sinks and long-term carbon reservoirs.
Under the United Nations Framework Convention on Climate Change (UNFCCC), the international community is committed to reducing net greenhouse gas emissions. When in force, the Kyoto Protocol to the Convention will give Parties listed in Annex I of the Protocol (mostly developed countries and countries with economies in transition) specific reduction targets. They can meet these targets by reducing emissions or by promoting carbon sinks. The reductions can be accomplished domestically or through cooperative actions involving other Parties to the Convention. The Parties to the Convention have been meeting annually to clarify rules and modalities of climate change mitigation, and recent meetings (particularly Conference of the Parties 6 [COP-6], COP-6bis, COP-7, COP-8 and COP-9) have addressed specific issues concerning the so-called Land Use, Land-Use Change and Forestry (LULUCF) activities.
Although forests may play an important role in the international response to climate change, Parties to the Convention have often reached different conclusions regarding the proper role of forests and appropriate national legislation to foster that role:
• First, obligations of Parties differ, particularly between Annex I nations and non-Annex I nations. This applies to obligations for emission reductions, but also many other commitments, e.g. reporting.
• Second, although the Conferences of the Parties have settled many points, some questions remain about the role of harvested wood products and forestry projects in meeting those obligations, notably how to simplify rules and modalities for small-scale afforestation and reforestation projects, and how to trade and deal with carbon credits originating domestically or abroad.
• Third, the legal issues of climate change mitigation through forests will depend on approaches taken to mitigation and compliance in other sectors. A nation’s method of forest-based mitigation must be compatible with the nation’s overall approach to greenhouse gas control; a nation that chooses to rely on subsidies and indirect regulation to reduce emissions by industry will probably approach the role of forests differently from a nation that relies on direct regulation of emissions or from a nation that chooses to rely on markets.
• Fourth, the approaches taken will vary depending on national forest policies, institutions, forest ownership structures, ecosystems, laws, needs and other national circumstances.
• Fifth, the role of national or supranational legislation on compliance (versus international standards set by the Parties) is still unclear. Complicating the issue further, in some cases global and regional standards may diverge. For example, although the Kyoto Protocol allows Parties to fulfil parts of their obligations through purchasing certified emission reductions (CERs) from carbon offset projects under the Clean Development Mechanism (CDM) involving forests, a recent proposal for a European Community Directive (COM 403) seeks to eliminate credits created from LULUCF activities from recognition in internal emission trading within the European Community.
To date, national legislative activity on the issue of forests and climate change has been limited. Countries have relied more on creative use of existing legislation than creation of new legislation.
There are a few exceptions. Costa Rica has created a Certified Tradable Offset to attract developed nations looking to sponsor mitigation projects. The first project funded under this mechanism has involved forests. The state of New South Wales in Australia has changed its property laws to recognize a separate legal interest in the carbon sequestration potential of forest land. The Dominican Republic has adopted a law that will allow it to create incentives for managing forests for environmental services such as carbon sequestration. New Zealand is actively struggling with the question of ownership of carbon sequestered in that country’s extensive domestic afforestation and reforestation. The list of other jurisdictions that have considered or adopted some sort of forest-related climate laws includes the United States and some of its constituent states, the European Union, the Canadian province of Alberta, Peru, Spain and Denmark.
The full range of forest legislation in response to climate change could include protection, adaptation and mitigation initiatives. Protective measures would attempt to guard existing forests from destruction or degradation through clear-cutting or unsustainable management, or from climate change-related damages. Adaptation initiatives would help forest managers prepare forests for the anticipated additional stresses from a changing climate and the resulting extremes in weather. Mitigation initiatives would sequester more carbon in living forest biomass, soils and wood products as well as reduce the net amount of national greenhouse gas (GHG) emissions by substituting wood energy from sustainably managed forests for fossil fuels, and wood products for energy-intensive materials, such as aluminium or steel. The discussion in this paper covers only mitigation through afforestation, reforestation or forest management.
Many issues could arise in efforts to develop new legislation to foster carbon sequestration in forests. A nation interested in a property-based system may have to address such issues as:
• Who can claim credit and receive payment for carbon sequestration and can that ownership be transferred?
• Who is responsible for carbon debits from deforestation, forest harvesting or natural calamities?
• How will the amount and duration of carbon credits be determined, recorded and verified?
• How can the government promote orderly sales or other transfers of ownership?
• How will national law allocate the risk of failure of carbon sequestration projects, complementary to any provisions already contained in the international agreements?
• Will the law assess liability for damaging a forest’s carbon sequestration potential?
A nation interested in command-and-control approaches to encourage forest sinks could turn to regulating forest use and management directly. For example, it could specify permissible logging techniques, require prompt reforestation of harvested or otherwise denuded areas, or set minimum stocking levels for immature stands and minimum harvest ages for mature stands.
Nations could also promote the use of forests as sinks through subsidies. These may be payments, goods or services given to forest owners to promote management for maximal carbon sequestration – for example, rewarding owners for extending rotations or reforesting with species that fix particularly high amounts of carbon. The subsidies could also be in the form of enhanced government acquisition and management of lands for carbon sequestration, or of partial interests in lands. Governments could also spend money on better enforcement of general forest protection laws or on promoting the tending of young stands for better growth and higher stability.
Finally, governments could try to promote forest carbon sequestration using informational mechanisms. These include informing landowners about management options and advantages through specialized extension services, guiding manufacturers and consumers of forest products on ways to reduce waste, certifying the success of private sequestration efforts, offering help in forest planning to consider GHG impacts and promoting research on forest management for carbon sequestration.
COP-9 finalized the majority of the rules on LULUCF in December 2003. This made the international role of forests in meeting sequestration goals much clearer and should help those Parties that wish to adopt laws on LULUCF activities. The subject of carbon storage in harvested wood products, however, is still under discussion but is unlikely to become a relevant implementation issue before 2012. In spite of uncertainties on when the Kyoto Protocol will enter into force, Parties will have to start responding nationally soon if they hope to meet impending deadlines. For example, national systems for the estimation of removals by sinks must be in place before the end of 2006. Nations should now be tackling the question of whether and how to encourage and integrate the use of forests as carbon sinks into national legal regimes.
SONYA: ... Mihail Lvovitch plants fresh trees every year.... He tries to prevent the old forests being destroyed. If you listen to him you will agree with him entirely. He says that forests beautify the country, that they teach man to understand what is beautiful and develop a lofty attitude of mind. Forests temper the severity of the climate. In countries where the climate is mild, less energy is wasted on the struggle with nature, and so man is softer and milder. In such countries people are beautiful, supple and sensitive; their language is elegant and their movements are graceful. Art and learning flourish among them, their philosophy is not gloomy, and their attitude to women is full of refined courtesy.
[MIHAIL LVOVITCH] ASTROV: ... I am ready to let you cut down wood as you need it, but why destroy the forests? ... There are fewer and fewer forests, the rivers are drying up, the wild creatures becoming extinct, the climate is ruined, and every day the earth is growing poorer and more hideous.... Here you are looking at me with irony, and all I say seems to you not serious and – perhaps I really am a crank. But when I walk by the peasants’ woods which I have saved from cutting down, or when I hear the rustling of the young copse planted by my own hands, I realize that the climate is to some extent in my power, and that if in a thousand years man is to be happy I too shall have had some small hand in it.
From Act I of the play Uncle Vanya, by Anton Chekhov (1900),
as translated from the Russian by Constance Garnett (1923)