Where is the legal framework for Climate Smart Agriculture?

Between now and 2050, there will be a sharp increase in the demand for agricultural products. This is caused by an increase of the world’s population from 7 billion today (2012) to 9 billion, the rise in global calorie intake by 60% due to greater affluence, particularly in countries like China and India, and the production of bio-fuels (Meridian Institute 2011). The increase in agricultural production is likely to be accompanied by an increase in the emission of greenhouse gasses. Agriculture is responsible for 30% of total global greenhouse emissions, mainly through land-use change (particularly deforestation driven by agricultural expansion, also affecting biodiversity), methane and nitrous oxide emissions (from livestock and the use of fertilizers). The Meridian Institute, in its 2011 report ‘Agriculture and Climate Change: a Scoping Report’ shows that agriculture is not only a major cause of climate change but in many regions of the world, it is also seriously impacted by climate change. It is expected that by 2050, 56% of crops in Sub-Saharan Africa and 21% of crops in Asia will be negatively affected by the consequences of climate change, for instance because of shifts in water availability, temperature shifts, and changes in the occurrence of pests. This often has direct effects on the availability of food. In other regions, such as Europe, it seems that at least in the short term, climate change can be beneficial to agricultural production, allowing, for example for an additional yield per year or the opportunity to grow a more profitable crop. Europe, though, ultimately will be affected by these developments as well: food shortages are expected due to demand in other markets, particularly the emerging economies, even when taking into account the decline of Europe’s population (European Commission 2012).

Limiting food security risks under climate change requires new climate-smart agriculture policies to be implemented. Around the world, a wide variety of adaptation and mitigation projects are being trialed in the agricultural sector under such headings as ‘carbon farming’ or ‘climate smart agriculture’ (hereafter: CSA). The FAO website on climate smart agriculture has a list of more than 150 projects around the globe. Examples of these are the application of low water use technologies, crop changes, tillage and residue management, land-use change, agroforestry, enhancement of agro-biodiversity, etc.  So far, these, mostly experimental, projects have not or only barely been brought under the existing legal framework on climate change adaptation and mitigation.

With the varieties in effects of agriculture on climate change and in the effects of climate change per region, it is a challenge to come up with an overarching legal framework that allows for both climate change mitigation and adaptation, while maintaining or even improving food security as well as providing benefits to as many people as possible. Although food security has been acknowledged as an important issue under the UN Framework Convention on Climate Change, bringing adaptation and mitigation in the agricultural sector under the UNFCCC and the Kyoto Protocol is only happening at a slow pace. Emissions from land use change and agriculture are included in the Protocol accounting mechanisms, but only when measurable as verifiable changes in carbon stocks. In addition, Parties could elect additional human-induced activities related to LULUCF (Land-Use, Land-Use Change and Forestry), specifically, forest management, cropland management, grazing land management and revegetation, to be included in its accounting for the first commitment period. Only four countries elected for this option in that commitment period, hence strongly limiting the possibilities under the Clean Development Mechanism (CDM) as well. Furthermore, methodological questions have led to restrictive limits. Soil sequestration, for example, has been excluded from the CDM, and land use change can only account for 1% of all CDM credits. Some support to developing countries in the field of agriculture is provided for by the Adaptation Fund and the Green Climate Fund.

In general, it must be concluded that the instruments aimed at reducing greenhouse gas emissions only apply to agriculture to a very limited extend. The relationship between agriculture and climate change is considered to be too complex to be included in current negotiations. There are seemingly insurmountable practical difficulties in integrating agricultural emissions in an emissions trading scheme.

At the international level, it is not just international climate law under the UNFCCC, but also international trade law under the WTO that is relevant when researching the legal framework for CSA. On the one hand, current income support for farmers may constrain CSA, for instance when support schemes do not ‘reward’ farmers for switching to agricultural practices that are aimed at climate change mitigation and adaptation. Under the WTO, reducing market distortions caused by income support to farmers have been discussed for years now, albeit without significant progress towards the liberalization of trade in agricultural products. On the other hand, the WTO’s intellectual property rights law (TRIPS agreement) seems to favour access to climate smart agricultural technologies and practices, as the TRIPS agreement protects IPRs while at the same time favouring technology transfer to developing countries, although the latter –in practice- still is problematic.

At the domestic level, only in very few countries attempts are made to introduce financial benefits to farmers for their mitigation efforts. Probably the best example is Australia that, in 2011, enacted legislation that allows farmers to (voluntarily) generate carbon credits that can be sold on the domestic and international carbon market: the Carbon Farming Initiative (CFI). Thanks to this initiative, Australia is the country with the most far-reaching example of active legislation aimed at facilitating and stimulating CSA. Farmers earn credits through agricultural emissions avoidance projects (projects that avoid emissions of methane from the digestive tract of livestock, methane or nitrous oxide from the decomposition of livestock urine or dung, methane from rice fields or rice plants, methane or nitrous oxide from the burning of savannahs or grasslands, methane or nitrous oxide from the burning of crop stubble in fields, crop residues in fields or sugar cane before harvest, and methane or nitrous oxide from soil), as well as through sequestration offsets projects.

In the EU, CSA is still very much in the research phase and the regulatory framework is largely absent. Farming is excluded from the EU ETS, but included in the Effort Sharing Decision.  The Effort Sharing Decision establishes binding annual greenhouse gas emission targets for Member States for the period 2013–2020. Member States have to develop their own policies in order to achieve their targets and therefore, may put more emphasis on some sectors than on others. For agriculture, emission reductions could for instance be achieved through more efficient farming practices and conversion of animal waste to biogas. Other than in Australia, LULUCF projects are explicitly excluded from the Effort Sharing Decision, so important measures like cropland and grazing land management and revegetation are not covered. The second route towards addressing emissions from agriculture is through the EU Common Agricultural Policy (CAP) reform in 2013. Here mitigation and adaptation policies meet, as the CAP is also the primary means for promoting climate resilient agriculture. In the initial proposals, the European Commission suggested to earmark 30% of the direct payments for farmers who apply agricultural practices beneficial to climate change and the environment (through crop diversification, maintenance of permanent pasture, the preservation of environmental reservoirs and landscapes, etc.). In addition, it was proposed to give increased financial support to agri-environment-climate projects and organic farming under the EU´s rural development policy. In the final stages of the negotiations, however, these proposals have been watered down to a considerable extent.