Friday, October 19, 2012

Rogue geoengineering and scrivener's error

A shadowy businessman from my state named Russ George has apparently dumped boatloads of iron into the Pacific off the Canadian coastline in an alleged carbon sequestration project.  I first thought he had hooked up with the Haida, a Canadian First Nations indigenous group, in order to get some political backing, but the link shows it may have been more involved:

The dump took place from a fishing boat in an eddy 200 nautical miles west of the islands of Haida Gwaii, one of the world's most celebrated, diverse ecosystems, where George convinced the local council of an indigenous village to establish the Haida Salmon Restoration Corporation to channel more than $1m of its own funds into the project. 
The president of the Haida nation, Guujaaw, said the village was told the dump would environmentally benefit the ocean, which is crucial to their livelihood and culture.  
"The village people voted to support what they were told was a 'salmon enhancement project' and would not have agreed if they had been told of any potential negative effects or that it was in breach of an international convention," Guujaaw said.
One imagines they could have done better things with a million dollars than financing Mr. Ross.  He is of a certain infamy from his Planktos company's effort to do the same thing five years ago and sell carbon offsets certified AFAICT on the basis of their own say-so.

So now they seem to have legal trouble with international agreements that tried to regulate efforts such as those by George.  However, wherever you can find a dubious legal interpretation that could harm the environment, it seems one can find a connection to the recent Rabett favorite, David "Heartstrings" Schnare:
• The London Convention / London Protocol: You may fertilize if the intent is to grow fish but not if the intent is to dispose of carbon in the ocean. Hence, focus on “restoration”.
At the same link, Ken Caldeira writes:

It would be useful if any legal minds in the group would assess exactly the relevant language that Russ George has supposedly violated. 
I recall that in negotiations under the London Convention / London Protocol, there was concern not to impact fish farms which of course supply copious nutrients to surrounding waters. 
If my recollection was correct, somebody proposed an exception for mariculture. I piped up and said that all ocean fertilization could be considered mariculture and that the CO2 storage could be regarded as a co-benefit, achieved knowingly but not intentionally (just as when we drive a car we knowingly heat the planet although that is not our intent). 
My recollection was that in response to this comment, the word 'conventional' was added to the language, so that it now reads: 
"Ocean fertilization does not include conventional aquaculture, or mariculture, .. ". Resolution LC-LP.1(2008) - IMO 
Incidentally, it seems that they have a misplaced comma, as I believe the word 'conventional' was meant to apply to both 'aquaculture'' and 'mariculture', but with the placement of the comma, I read this as 'conventional aquaculture' or 'mariculture'. I am not enough of a lawyer to know whether the intended meaning or the literal meaning is the one likely to prevail under some sort of adjudication process.
The misplaced comma is what lawyers call scrivener's error, a great way to mess up legal documents and run up legal bills.  To broadly over-generalize, under US domestic law courts will correct scrivener's error when it leads to absurd results.  It strikes me as absurd to limit the regulatory exception to conventional aquaculture while expanding it to all mariculture.  The legal issue here isn't domestic law though, but international law as interpreted by domestic authorities, probably Canada in this case.  Hardly my field, but Article 79 of the UN Treaty on the Law of Treaties says if signatories agree there was a clerical error, you just go and fix it.  I think that's where we would stand now on the clerical error, but there are other reasons for thinking George is in legal trouble (comments of Jim Thomas) regardless of the misplaced comma.