Publicly owned wetlands are being eyed for long-term carbon reduction.

Truly tackling climate change requires long-term commitment, and some land managers are looking to make that commitment. How long-term? Try 100 years. 

Blue carbon is the term for carbon captured by the world’s ocean and coastal ecosystems. The capacity of these ecosystems to remove, or sequester, carbon from the atmosphere can be sold on the carbon market to offset pollution, but this requires 100 years of carbon sequestration to be guaranteed. 

Restore America’s Estuaries worked with the Rhode Island Sea Grant Legal Program and two Rhode Island Sea Grant Law Fellows to understand the legal questions that need to be addressed before starting such a project on public wetlands. Read Porter, senior staff attorney for the Legal Program, spoke about their work at a seminar hosted by Restore America’s Estuaries.

He began by explaining why these projects are appealing. 

“We know that governments—whether they’re state, federal or tribal governments—hold a substantial portion of our nation’s coastal wetlands, and those places are where those new carbon projects are most feasible,” Porter said.

“The soils in wetlands, and coastal wetlands in particular, sequester a tremendous amount of carbon, and that is an opportunity to combine climate change mitigation efforts with coastal wetlands protections. 

“We need those protections because coastal wetlands are under threat from factors such as sea level rise and development … Governments may own a lot of these coastal wetlands, but they often have insufficient funding to protect and restore those wetlands that they manage to maximize those carbon sequestration and other ecosystem benefits. So blue carbon lets us combine the carbon mitigation benefits and [address] that funding challenge by providing an outside source of funding for conservation and restoration” through the sale of offsets, he said.

He added that there are few existing models for how governments can participate in such projects. 

Porter and Law Fellows Cody Katter and Cory Lee found that one of the challenges of blue carbon projects on public lands is that carbon markets require taking 100 years of erosion, land ownership and maintenance, and funding into consideration. 

“In order to be listed on carbon markets, projects have to demonstrate that they are … providing additional carbon sequestration benefits that would not have otherwise occurred. They have to demonstrate that those carbon benefits are permanent … Five years of sequestration doesn’t really do much. So most of these require 100 years of carbon benefits. And they also require that the person selling those carbon offsets has an unambiguous ownership of those rights. So there can’t be any question about whose carbon rights are being sold.”

This is complicated in coastal areas where uplands can be, and are, privately owned, submerged lands are government owned. And shorelines move. “So sea level rise and erosion are likely to move shoreline property boundaries landward, especially over a long timeframe,” Porter said.

One challenge for blue carbon projects is determining property boundaries between public and private lands.

Even if land ownership issues are addressed, there can be limitations on what is legally allowed with regard to the transfer of carbon rights. For instance, laws generally frown on the transfer of public property rights [e.g., carbon offsets] from conservation lands to a private owner. “We don’t generally want the government selling property rights to national parks, for example,” Porter said.

Where states own submerged lands, they cannot transfer submerged lands for private use without retaining rights for fishing access and navigation. “We do not believe that transfers of carbon rights will truly affect public trust rights, as long as access and use for fishing and other activities are maintained, which is likely,” Porter said. 

“Tribes are perhaps the most complicated, and their authority over submerged lands is likely to depend on the treaty or other authority by which their property rights and reservations are established,” he added.

Entering into a 100-year contract presents other challenges, For instance, federal law prohibits federal agencies from committing to spending beyond the fiscal year for which funding has been appropriated. This means that it will be difficult to ensure long-term maintenance as required by the market. “That might be one reason why you would want to keep a funding source outside of a government agency, in, for example, a quasi-public foundation,” Porter said.

Hilary Stevens, coastal resilience manager at Restore America’s Estuaries, said that this Law Fellow project followed her organization’s years of blue carbon research with federal partners. Those agencies, she said, “do not have clear guidance about how to proceed with the carbon market. We hope that this report will lead to a broader push for the necessary policy changes to facilitate coastal blue carbon projects on public lands. We will have sessions at our upcoming National Summit, which has gone virtual this year, to discuss the issue and plan ways to resolve it.”

 

 

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The Law Fellow project was sponsored by Restore America’s Estuaries with a grant from from the U.S. Department of Commerce and NOAA. 

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If your organization is interested in hiring a Law Fellow, contact  Read Porter