Maximising the Legitimacy of the EU’s Regulation of Geoengineering Research

By Dr Janine Sargoni, Lecturer in Law (University of Bristol Law School).*

© NASA

© NASA

In what has been described as ‘nature’s own great climate experiment’, the 1992 eruption of Mount Pinatubo in the Philippines provided scientists with data to refine their climate models.   After the eruption, average global temperatures dropped temporarily as particles released into the stratosphere increased the Earth’s albedo.   Solar Radiation Management (SRM) – or ‘reflecting sunlight to cool earth’ – developed notionally thereafter as a means of reducing global average temperatures resulting from increased greenhouse gases.

Pinatubo provided all kinds of data which helped increase the accuracy of climate models eventually predicting with relative certainty the temperature-cooling climatic impacts of SRM, whilst leaving relatively uncertain – or unknown – the extent of environmental impacts, such as those arising from changing patterns of rainfall.  The current limitations of models in telling us about localised environmental uncertainties could be reduced if research into the effects of SRM took place outdoors, or in the field, so to speak.  But that research would actually constitute deployment which itself would generate uncertain environmental effects.   Given these significant constraints it is not possible to establish to what extent SRM technologies are effective or reliable and therefore it is imperative that a legitimate regulatory process is secured in which decisions about its research and deployment can be taken.

This new article* sets out how risky SRM field research might be regulated in the EU in such a way as to maximise legitimacy.  It suggests that under particular conditions the EU could delegate to an independent agency powers to undertake what I call an incorporated risk assessment; an assessment in which science and politics, expertise and lay-knowledges are combined.  Legitimacy would be maximised because the EU’s regulatory framework relating to the risks of SRM field research would be legal and also responsive, flexible, deliberative and inclusive.

The argument draws together different levels of analysis.  On one level, the paper makes three sets of general distinctions about the activity and physical effects of SRM research.  The first distinction is of research that takes place indoors or out; computational modelling and laboratory work, or exploratory studies and actual deployment.  The second distinction is between research activities that generate transboundary or non-transboundary effects.  And the third separates research activities, the effects of which fall below or above a threshold I call ‘significant scientific uncertainty’.  Scientific uncertainty is a way of describing the limits of our scientific understanding of a subject.  Where uncertainty is significant, science struggles to provide a meaningful basis for the assessment of risk making political decisions about managing that risk difficult.

As well as clarifying what I mean by SRM research, these ‘activity level’ distinctions – the setting of research, the transboundary effects, the scientific uncertainty – are important because they link to different types of regulatory frameworks.  As a result I characterise broad regulatory frameworks by types of SRM research. For example, SRM field research that generates transboundary effects is likely to be regulated , broadly speaking, at the transnational or international level compared to laboratory or computational modelling research which will be regulated at the national level, if at all.

This ‘regulatory framework’ analysis is significant because it explains the level at which regulation is taking, or is likely to take, place.  In the paper I suggest that the nascent regulation of SRM research, which I characterise as being transnational and private in nature (nTPR), poses significant challenges for legitimacy, such as the lack of a legal basis for the exercise of political authority.   Whilst some of these challenges, such as the absence of an express democratic mandate, might be ameliorated if the path of development of nTPR is to EU regulation, other challenges linked to the significant scientific uncertainty of SRM research are likely to remain.

By drawing into the weave a third, theoretical level of analysis, the paper suggests that these other challenges to legitimacy posed by significant scientific uncertainty can be met by designing a regulatory framework that is both legal and responsive, flexible, deliberative and inclusive.  The paper does not derive a definition of legitimacy from first principles but assesses other attempts at creating legitimate frameworks by drawing on their conceptualisations of legitimacy.   It evaluates legitimacy conceptualised as ‘legality’ in ‘transnational’ theories of regulation, conceptualised in formal institutional terms; regulatory actors are legitimate by virtue of having been created in accordance with constitutional legal principles and by exercising powers which are enunciated clearly in law.   However, legitimacy can be conceptualised in other ways, such as in functional and procedural terms as the conditions by which normative expectations can be met.  Drawing on Sabel and Zeitlin’s theory of democratic experimentalism, I focus on four such conditions: responsiveness, flexibility, deliberation and inclusion.

Under conditions of significant scientific uncertainty, SRM field research poses challenges for its legitimate regulation in the EU, whose orthodox response is to ensure its own institutional ‘balance of powers’.  This response is deficient because it entrenches a risk analysis approach that institutionalises a separation between the scientific assessment of risk – which is not possible owing to significant scientific uncertainties – from the political management of risk.   The paper’s suggestion is a pragmatic one.  It is to institutionalise an incorporated approach to risk which provides space for deliberative and inclusive decision-making in the technocratic paradigm as part of a responsive and flexible framework whilst retaining the general institutional balance of the EU.  In so doing, the EU can create spaces for more directly deliberative polyarchy without jettisoning its orthodox constitutional approach thereby maximising legitimacy through a regulatory framework that is both legal and responsive, flexible, deliberative and inclusive.

* Janine’s full paper has been published as J Sargoni, ‘The Best of Both Worlds: Maximising the Legitimacy of the EU’s Regulation of Geoengineering Research’ (2016) 7(1) European Journal of Risk Regulation 87-108.

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