The Effectiveness of the Regulatory Regime for Black Carbon Mitigation in the Arctic

• Author: Daria Shapovalova
• Position: Daria Shapovalova is a 3d year PhD student at the School of Law, University of Aberdeen. Her research focuses on the effectiveness of international environmental legal framework in light of hydrocarbons development in the Arctic. More specifically her interests lie in researching legislation regulating marine and air pollution in the Arctic ...
• Pages: 28-43

The Effectiveness of the Regulatory

Regime for Black Carbon Mitigation in

the Arctic

Daria Shapovalova*,

University of Aberdeen, School of Law, Aberdeen, UK

Abstract

1

In addition to being a hazardous air pollutant, Black Carbon is the second-largest contributor to

Arctic warming. Its mitigation is being addressed at the international regulatory level by the Arctic

Council and the Convention on Long-Range Transboundary Air Pollution (CLRTAP). Whilst the

Convention and its protocols are binding documents, the Black Carbon regulation under their

framework appears to have ‘soft law’ characteristics. At the same time, the voluntary Black Carbon

and Methane Framework, adopted by the Arctic Council, demonstrates positive compliance and

follow-up dynamics compared to earlier norm-creating attempts. This paper argues that the nature of

the norm (binding or non-binding) is not the decisive factor regarding effective implementation in the

Arctic region. Current efforts to mitigate Black Carbon by means of a non-binding Arctic Council

Black Carbon and Methane Framework represent an improvement in the Council’s normative

function and may have more effect on the behaviour of Arctic States than relevant provisions under

the Gothenburg Protocol to the CLRTAP. To support this argument, the first section presents an

overview of the Arctic Council as an actor in Arctic policy-making. It then provides an assessment of

current efforts to combat Black Carbon carried out by the Arctic Council and the CLRTAP.

Keywords: Black Carbon;Arctic Council;CLRTAP;Air Pollution;Climate Change

Responsible Editor: Tore Henriksen, Professor, Director K.G. Jebsen Centre for the Law

of the Sea, Faculty of Law, University of Tromsø - The Arctic University of Norway.

Received: March 2016; Accepted: September 2016; Published: November 2016

Black Carbon (or soot), the second-largest contributor to Arctic warming ,

2

has been

on the agenda of climate activists and international institutions for several years now.

3

However, it was not until 2015 that the Arctic Council adopted a framework to reduce

emissions of this particulate matter.

4

As the Arctic is warming twice as fast as the rest of

the world,

5

approaching the tipping point in a not so distant future,

6

the necessity to

take steps to lower the warming level has become urgent. Black Carbon (BC) is a short-

lived climate forcer, meaning it only remains in the atmosphere for a few days or weeks.

*Correspondence to: Daria Shapovalova, School of Law, Taylor Building, University of Aberdeen,

AB24 3UB, UK. Email: daria.shapovalova@abdn.ac.uk

Arctic Review on Law and Politics

Vol. 7, No. 2, 2016, pp. 136151

#2016 D. Shapovalova. This is an Open Access article distributed under the terms of the Creative Commons

Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), allowing

third parties to copy and redistribute the material in any medium or format and to remix, transform, and build upon

the material for any purpose, even commercially, provided the original work is properly cited and states its license.

Citation: D. Shapovalova. ‘‘TheEffectiveness of the Regulator y Regime for Black Carbon Mitigation in the Arctic.’’ Arctic

Review on Law and Politics, Vol. 7, No. 2, 2016, pp. 136151. http://dx.doi.org/10.17585/arctic.v7.427 136

Therefore, while efforts to reduce BC cannot replace long-term effor ts to mitigate

CO

2

emissions,

7

immediate reductions in BC emissions could lower the rate of

Arctic warming over the next few decades.

8

In addition to its warming effects, BC

has negative effects on human health causing respirator y diseases that sometimes lead

to premature deaths.

9

The present paper examines whether the current efforts of BC mitigation by means of

the Arctic Council’s non-binding Framework demonstrate an improvement in the

Council’s normative function and may have more effect on the behaviour of the Arctic

States than the relevant obligations under the legally binding Gothenburg Protocol to the

Convention on Long-Range Transboundary Air Pollution (CLRTAP). To this end, the

first section introduces BC as an Arctic pollutant. The paper goes on to analyse BC

regulation under CLRTAP.Then it presents an over viewof the Arctic Council as an actor

in Arctic policy-making. The fourth section examines the Arctic Council’s work on regu-

lating BC. Finally, the fifth section evaluates national implementation of this regulation.

1. BC as an Arctic Pollutant

BC, a particulate matter ‘formed through the incomplete combustion of fossil fuels,

biofuel, and biomass,’

10

warms the atmosphere by absorbing sunlight. In the Arctic,

the effects of BC are especially noticeable since it darkens snow and ice thus reducing

the albedo (ability to reflect sunlight) effect.

11

Melting snow and ice expose dark

ocean or land that has a much lower albedo and absorbs even more sunlight thus

creating a positive feedback loop.

In the Arctic, BC sources include open burning, and the use of diesel for vehicles

and electricity generation.

12

Until recently, the oil and gas sector was not believed to

be responsible for significant BC emissions in the High North.

13

However, recent

studies reveal that this sector’s share of hydrocarbons emissions has been under-

estimated.

14

It is estimated that around 42% of BC in the Arctic arises from associated

petroleum gas (APG) flaring during oil and gas production in the region.

15

Whereas

BC emissions from shipping have not yet been identified as a primary source, they are

expected to increase with a high-growth scenario for Arctic shipping ‘nearly fivefold

by 2030 and over 18-fold by 2050.’

16

A recent open letter from 15 environmental

NGOs to the Chair of the Senior Arctic Officials group calls for a ban on heavy fuel

oil, a primary source of BC emissions from ships.

17

The distinct nature of the BC problem is that it is both an air pollutant and

a contributor to climate change. Air quality is one of the major branches of inter-

national environmental law, starting with the Trail Smelter arbitration in 1939.

18

On the international level, BC, as an air pollutant, is covered by Gothenburg Protocol

to the CLRTAP. As a climate forcer, it is addressed by the non-binding framework of

the Arctic Council. This ‘dual’ nature makes it possible to reduce BC’s warming

effects while also reducing population health risks. The Council, a high-level inter-

governmental forum of Arctic States, recognises the challenges presented by climate

change and is working on its mitigation through joint assessment and non-binding

legislation.

19

The Arctic States chair the Council in two-year rotations, with each

The Effectiveness of the Regulatory Regime for Black Carbon Mitigation in the Arctic

137