The role of international liability in the regulation of SRM field research: An economic analysis Jesse L. Reynolds – Faculty of Law, University of Tilburg

Today SRM field research and its risks Regulating research Economic analysis of law Relevant conditions of SRM research Consider possibilities A tentative proposal Reynolds, Climate engineering research & international liability, 20142

SRM field research risks Reynolds, Climate engineering research & international liability, SRM may be beneficial SRM will have risks Scientists will do (field) research to learn Large scale field research will have risks

Means of “regulation” of SRM field research Reynolds, Climate engineering research & international liability, Existing (international) rules New (international) rules Moratorium Institutions Norms Liability?

Goals of “regulation” of SRM field research Reynolds, Climate engineering research & international liability, Reduces risk from research Allows potential of SRM Consistent with legal norms Compensates victims Low administrative costs Politically feasible

Economic analysis of law (1/2) Reynolds, Climate engineering research & international liability, Accidents (prevention and compensation) Risky activity has benefits Risks borne by others Not internalized in decision making Not just How to incentivize socially optimal levels of activity and care, i.e. max(benefit-cost)? And how to compensate?

Economic analysis of law (2/2) Reynolds, Climate engineering research & international liability, Conditions: Who (injurer, victim, gov’t) knows what? Who can do what? What would be efficient? Compare regulatory tools: Rules Liability Injunctions Taxes Fines Insurance for injurers and victims

An economic analysis: Conditions (1/2) Reynolds, Climate engineering research & international liability, SRM research would be socially beneficial Research would impose risks Researchers have better information re: risk reduction Researchers do not capture most of the benefits Assumes no patents, open publication Like a public good -> underproduced, subsidized Researchers want to know and publicize external negative effects Research will be state sanctioned Researchers will coordinate efforts

An economic analysis: Conditions (2/2) Reynolds, Climate engineering research & international liability, Researchers have low ability to pay damages Injurers and victims may not have access to insurance Victims can take some care to reduce harm Victims’ info re: harm inflicted appears to be weak, and Harm would be widely dispersed, but: States as victims Researchers seeking and sharing information Causation will be difficult Politically controversial -> compensation will be important

An economic analysis: Regulatory possibilities? (1/2) Reynolds, Climate engineering research & international liability, Rules? Limited: Knowledge of researcher vs. government CE changing First party insurance; state reinsurer? Poor access Victim pays Researchers strictly liable; insurance; state reinsurer / residuals? No insurance market Bankruptcy or high premiums Disincentive for public good production

Reynolds, Climate engineering research & international liability, State liability? Disincentive for public good production States collectively liable? Compensation not liability No incentives An economic analysis: Regulatory possibilities? (2/2)

A regulation proposal (1/2): General rules Reynolds, Climate engineering research & international liability, Researching Parties’ commitments for SRM research General safety standards (specific nationally) Environmental assessment Notification Consultation Public input State approval of projects Open publication of results No prohibitive SRM patents International coordination

A regulation proposal (2/2): Liability / compensation Reynolds, Climate engineering research & international liability, Parties contribute to a compensation fund Mix of ability to pay, past emissions, and potential benefit Only harm in Party’s territory eligible Parties forego other legal action Claims limited in time, extent, amount Causation examined by an expert claims commission Proportional awards for uncertainty; threshold? Limited state liability if at fault, i.e. failed in its commitments [Sanctions of researcher, if at fault?] Fund pays all or remaining damages Contributory negligence?

Politically feasible? Reynolds, Climate engineering research & international liability, All Parties get Something ≈ equitable sharing of (monetized) risk Researching Parties get: Clarity and limitation of liability Endorsement of a controversial but potentially beneficial activity Parties at risk of research’s negative effects get: Assurance of responsibility Potential compensation Clarity of process