Liability Considerations for Marine Carbon Dioxide Removal Projects in U.S. Waters

Scientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Ocean-based approaches, also known as marine CDR, hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has analyzed the potential for this legal framework to impose liability on marine CDR project proponents (e.g., for environmental harms resulting from their activities). This report begins to fill that gap with regard to projects in U.S. ocean waters by analyzing potential liability for marine CDR project proponents under U.S. federal statute, and federal and state tort law. Application of statutory and tort liability to marine CDR project proponents is complex and uncertain. Further, the existing liability frameworks seek to restrict environmentally harmful activities, but do not promote potential environmental benefits. A different liability framework may better be able to balance these competing concerns. This paper concludes by analyzing three existing environmental liability regimes used in other sectors that may serve as models for a new liability regime to govern marine CDR.