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Periodic Reporting for period 2 - SMARTLAW (Towards a regulatory framework for climate smart agriculture)


SummaryBetween now and 2050, there will be a sharp increase in the demand of agricultural products due to an increase of the world’s population, the rise in global calorie intake due to greater affluence, and the production of bio-fuels. The increase in agricultural...



Between now and 2050, there will be a sharp increase in the demand of agricultural products due to an increase of the world’s population, the rise in global calorie intake due to greater affluence, and the production of bio-fuels. The increase in agricultural production will be accompanied by an increase in the emission of greenhouse gasses. Climate change negatively affects food production. Policy documents have endorsed climate smart agriculture (CSA) as a means to achieve production growth, while at the same reducing greenhouse gasses emissions and adapting the agricultural sector to the changing climate. However, it is as yet unclear through what legal mechanism CSA can be achieved. The key objective of this project is to identify the main elements of a regulatory framework that enables, facilitates and stimulates the transition of conventional farm practices toward climate friendly practices in the EU. Various methodologies will be used, such as an evaluation of the Australian Carbon Farming Initiative Act, to date the world’s only comprehensive regulatory instrument aimed at facilitating CSA.

Work performed

The adoption of the Paris Agreement just weeks before the start of the project led me to focus on the impacts of the PA on agriculture first, through a keynote speech at a conference in Sydney and a paper, which was later published in the European Journal on Risk Regulation.

The next step was to study the Australian Carbon Farming Initiative Act. I found that the CFI Act provides an elaborate legal framework that seems well suited to assess project applications and issue credits to participating farmers who, through these projects, generated real and additional emission reductions, although barriers to engaging in CFI projects do exist. Climate Law published an article on my findings in January 2017.

In June 2016, I presented my findings to stakeholders with around 100 individual farmers, people from agricultural business organisations and financial institutions, non-legal scholars, journalists and a range of people from various businesses in Sydney, as well as in academic seminars at four Australian universities.

As of August 2016, I looked into possible trade law constraints on domestic policies aimed at stimulating climate smart agriculture. I reviewed the boundaries international trade law imposes on domestic and regional instruments aimed at stimulating CSA, such as subsidies and tradeable offsets under a carbon pricing mechanism. This article was published by Carbon and Climate Law Review.

In 2017, after returning to my home university, I first worked on a contribution to a Research Handbook on Climate Disaster Law, focusing on CSA from a disaster law perspective. CSA has to be central to any climate disaster mitigation policy. More attention is also needed for disaster response and for the rebuilding phase after a disaster.

The final step of the project was to assess whether and in how far CSA is or can be promoted through the use of current or proposed EU climate and agriculture policies instruments. I found that these are inadequate to stimulate large scale adoption of CSA practices and technologies across Europe. An alternative approach needs to be developed. The article on this part of the project was accepted by Transnational Environmental Law.

In 2017, much attention was focused on dissemination activities. Various presentations were given to individual farmers, representatives from agribusinesses and agri business organisations, agri banks, agricultural research organizations, Dutch provincial and national authority civil servants and European Commission officials. Early December we launched a large international media campaign to report on my findings.

Final results

The experiences in Australia form a reliable basis for recommendations to policymakers and regulators who wish to develop a regulatory framework aimed at stimulating farmers to convert to farming practices that reduce greenhouse gas emissions or even to broader climate smart practices. Following lessons can be drawn:

1. A policy aimed at stimulating CSA has to be reliable and provide certainty for at least 10-20 years.
2. A policy that has a wider focus on adaptation, food security, resilient and sustainable farm businesses and securing and creating jobs in the agribusiness sector, is likely to be more successful than one that only focuses on reducing emissions.
3. Developing climate smart methodologies that not only deliver real, additional, measurable and verifiable emission reductions but also foster long term innovation and create economic, social and environmental co-benefits is essential for the success of the policy.
4. Regulation has to focus on projects and cannot set uniform rules or simply require farmers to hand in allowances under an ETS. Given the fact that potentially large numbers of farmers should be able to participate, much attention has to be focused on developing automated systems for all phases of the process.
5. A robust and reliable MRV system is essential. In agriculture, MRV is site specific and can be labour intensive. Research is needed to develop less labour intensive yet reliable methods to assess the amount of emission reductions achieved or of carbon sequestered.

The review of international frameworks for domestic CSA policies finds that the UNFCCC does not provide a strong stimulus to adopt and implement CSA policies. The PA offers the opportunity to unilaterally adopt CSA policies and laws. WTO law sets boundaries for the most common domestic and regional instruments aimed at stimulating CSA (subsidies and offset schemes under a carbon pricing mechanism). More room for maneuver for domestic policymakers is needed.

CSA has to be central in disaster mitigation for agriculture, but should be accompanied by early warning systems and climate and weather information and forecasts specifically designed to help farmers prepare for and manage climate disasters. The rebuilding phase (after a disaster struck) is crucial with a view to creating a better, more resilient, agricultural sector, so that it is better suited to deal with the next climate disaster.

An assessment of current and proposed EU climate law and the legal instruments associated to the CAP shows that current and proposed policies and instruments are inadequate to stimulate large scale adoption of climate smart practices and technologies across Europe. An alternative approach needs to be developed. The first element of this new approach is focused on EU climate policy: the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia. The second element is aimed at the CAP. The CAP, generally, needs to be much more focused on climate change mitigation and adaptation. Shortcomings that need to be addressed are: 1) the commitment period is too short: 1-7 years; should be: 100 years or longer. 2) accounting is not based on quantification of carbon sequestration/emission reduction. 3) payments are not based amount of carbon sequestered. 4) rules generally have a generic character and cannot be sufficiently tailored to individual farms. 5) member states have too much “flexibility” which allows them to pay for insufficiently climate smart projects. 6) the CAP has insufficient funds for deep and full transition of Europe’s agriculture sector.

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