Forest Carbon Projects and International Law: A Deep Equity Legal Analysis

Abstract

Northern citizens, governments, and businesses are investing billions of dollars in the vast, imperiled forests of the South. In a forest carbon project, a developer plants trees to reforest a degraded ecosystem or preserves a forest that would have otherwise been degraded or felled. The developer can then sell the carbon, now sequestered in the trees and underground biomass, for a contracted period of time.

Forest carbon projects are legally problematic. In this article, I introduce the elements of forest carbon projects and the legal debates they engender. I introduce the notion of “deep equity,” the concept that provides an aegis for my analysis. I then briefly describe the entwined problems of global climate change and deforestation. I review the legal regime formulated to ameliorate these problems. I explain forest carbon schemes under both international treaties and the voluntary market. I then examine principles of equity, drawn from multilateral environmental agreements, customary international environmental law, and international human rights law obligations that are implicated in forest carbon investments. After introducing each right or principle, I explain how forest carbon projects may or may not advance the right and propose a set of standards for what an ideal project – one that maximizes deep equity – would include. I briefly analyze how international law is currently ill-equipped to regulate these projects, as many of the important actors elude legal control, in part because they are not explicitly named as duty bearers or because neither home nor host countries are able or willing to enforce legal requirements that do exist. I conclude by discussing how international law should be reformed so that forest carbon investments cleave to legal standards that promote genuine adaptation through deep equity, i.e. sustainable individual, community, and ecological health and potential.

Keywords: Climate Change, Environmental Law, International Human Rights Law, Equity, REDD, Forests, Forest Carbon, Carbon offsets

JEL Classification: K32, K33