Our planet is undergoing significant changes due to climate disruption, with especially severe impacts on the ocean. Most climate action today rightly focuses on reducing greenhouse gas emissions. Unfortunately, these efforts are necessary, but not sufficient to meet global climate targets. The Sixth Assessment Report of the Intergovernmental Panel on Climate Change underscores the urgent need the advance carbon dioxide removal (“CDR”) as a complement to (but not a substitute for) emissions reductions. CDR refers to deliberate human activities that remove carbon dioxide from the atmosphere and durably store it in geologic, terrestrial, or ocean reservoirs or in long-lived products.
One increasingly discussed CDR approach is ocean alkalinity enhancement (“OAE”). OAE attempts to artificially increase the ocean’s “carbon sink”, i.e., its ability to absorb carbon dioxide from the atmosphere. Carbon dioxide naturally moves between the atmosphere and the ocean’s surface in an attempt to achieve equilibrium. As carbon dioxide levels increase in the atmosphere, more carbon dioxide reacts with ocean water to form carbonic acid, making the ocean more acidic. This also reduces the ocean’s ability to further absorb carbon dioxide from the atmosphere. OAE adds alkalinity to the ocean to convert the carbon dioxide in the water into dissolved inorganic carbon, potentially allowing the ocean to absorb more carbon dioxide from the atmosphere, and helping to mitigate ocean acidification. Alkalinity can be added to the ocean through a number of approaches, including by spreading ground alkaline rock on the surface of the water (a mineral-based approach) or via electrochemical reactions (an electrolytic approach).
Scientists are still researching OAE’s effectiveness, benefits, and risks. Controlled in-ocean field trials are required to fully evaluate OAE. Legal considerations will impact whether, where, when, and how this field trial research, and any potential OAE deployment, occurs. The Sabin Center has previously discussed the regulation of OAE here and here. A new Sabin Center report continues the conversation by focusing on the regulation of OAE in Washington State.
Washington State’s waters
Washington State has a rich marine ecosystem, and a vibrant commercial and recreational shellfish industry. The state’s wildlife and marine industries face increasingly threats from global ocean acidification, which is compounded off the coast of Washington due to local factors. Recognizing this, Washington State has taken a variety of steps to combat ocean acidification, including by restricting carbon dioxide emissions. Research institutions in the state, including the Pacific Northwest National Laboratory and University of Washington, have also been at the forefront of work on OAE. Several OAE projects have been proposed for Washington State waters. One such OAE project, advanced by Ebb Carbon, uses electrochemical technology to reduce the acidity of seawater, then returns the seawater back into the ocean so that more carbon dioxide can be absorbed from the atmosphere.
OAE projects conducted in near-shore areas off the Washington coast may be subject to regulation at the federal, state, tribal and local levels. Our new report analyzes the potentially applicable laws and explains the permitting and other requirements they impose on OAE projects in Washington State.
Federal laws that cover OAE in Washington State
Coastal states in the U.S. typically have primary authority over near-shore ocean waters and the underlying submerged land (i.e., within 3 nautical miles of the coast and further in some circumstances), but federal laws can also apply in those areas. Two key federal laws are especially relevant to OAE projects: (1) the Marine Protection, Research, and Sanctuaries Act (“MPRSA”) and (2) the Clean Water Act (“CWA”). Each law targets a specific environmental issue. The MPRSA regulates ocean dumping, while the CWA regulates pollution in navigable waters, but both may apply to certain OAE activities.
Under the MPRSA, any person looking to disperse alkaline materials (such as ground alkaline rock) from a vessel must first get a permit from the Environmental Protection Agency (“EPA”). States have little room to be involved directly in the permitting process, as they cannot usurp EPA’s permitting powers under the MPRSA. However, states can impose additional requirements on permitted projects (over and above those imposed at the federal level). In Washington State, certain state laws regulate ocean resources. Any OAE project receiving MPRSA permits would also need to comply with these state laws.
The CWA establishes a framework in which states and the federal government work together to address water pollution. EPA has authorized Washington State’s Department of Ecology to issue permits for the discharge of pollutants from point sources into Washington State waters. Certain OAE projects may qualify as points source discharges and thus require a permit under the CWA. For example, when alkalinity is added to the ocean through a coastal outfall structure or pipeline, a permit is required from the Department of Ecology under the CWA framework. Washington State requires permitted projects to meet standards designed to prevent degradation of the receiving waterbody and maintaining factors such as the pH and turbidity of the water. OAE projects will need to demonstrate that they will be compliant with the applicable standards prior to receiving a permit under the CWA.
State law
In addition to federal laws, OAE projects in Washington State waters must also abide by state laws. Under the framework of the federal Coastal Zone Management Act (“CZMA”), Washington has developed a coastal zone management program. Briefly, the CZMA mandates that federal actions (including the provision of federal permits) must be consistent with enforceable policies of the management program if it is reasonably foreseeable that the actions will affect the state’s coastal resources or use of the coastal zone. The Washington State Department of Ecology assesses federal actions in its waters and provides a “consistency determination” to demonstrate that the action is consistent with its coastal zone management program.
Two Washington State laws are especially relevant to OAE projects: (1) the Shoreline Management Act and (2) the Ocean Resources Management Act. The Shoreline Management Act mandates that all counties and most towns and cities with shorelines develop and implement shoreline master programs and issue permits under these programs. Complementing the Shoreline Management Act, the Ocean Resources Management Act adds additional criteria for ocean uses and activities. Specific regulations for ocean disposal and ocean research have been adopted, and any OAE projects would need to follow both the local master program under the Shoreline Management Act and the regulations under the Ocean Resources Management Act.
Washington State has also implemented other rules and regulations that may govern OAE projects. The State Environmental Policy Act (“SEPA”) would also apply to OAE projects in Washington State. Similar to the National Environmental Policy Act (“NEPA”), SEPA mandates that, if a project will have “probable adverse environmental impacts which are significant”, an environmental assessment must be conducted to determine the environmental impact of the proposed project and reasonable alternatives. Depending on the location and effects of the project, project proponents may be required to obtain further permits or authorizations under other applicable state laws.
Despite the complex legal framework, Washington State agencies have taken steps to streamline the permitting process for all ocean activities, which may include OAE projects. The state provides for early consultation and has established decision timelines that help to make the permitting process more efficient and transparent.
The full report provides more detail on the legal requirements for conducting OAE projects in Washington State. The report adds to the existing literature of the Sabin Center on ocean CDR, which has been more focused on clarifying existing regulations at the federal level. This paper, and additional papers that will be published by the authors, aims to localize the discussion by looking at specific states and how they address questions about ocean CDR. Read the full report here.
Ashwin Murthy
Ashwin Murthy is the Negative Emissions Fellow at the Sabin Center for Climate Change Law.
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