A Climate Solution on Shaky Ground

The Voluntary Carbon Market and Agricultural Sequestration

Climate change demands concerted and immediate efforts to reduce levels of atmospheric carbon. One effort, the voluntary carbon market, allows carbon polluters to offset their emissions by purchasing carbon credits representative of reduced carbon dioxide emissions. Recent years have seen growing interest in the voluntary carbon market, especially by private enterprises in search of “net-zero” carbon footprints. This market is “voluntary” in that no government requires participation by private actors, but those who do participate face complicated questions of contract and property law.

To generate carbon credits, parties enter contracts, the performance of which result in property interests in the credits. They can then be bought, sold, traded, and relied upon for “net zero” claims. Making carbon dioxide emissions something that can be bought and sold is easier said than done because measuring and monitoring carbon in different settings is difficult and subject to high levels of uncertainty. With many methods used to generate carbon credits, it can be difficult to say that a unit of carbon dioxide represented by a credit was in fact removed from the atmosphere.

Measuring and monitoring carbon is especially difficult where credits are generated through agricultural soil carbon sequestration. This method of credit generation has been the subject of considerable interest as a solution to climate change. Governments have taken steps to encourage the generation of carbon credits through agricultural changes and to increase the reliability of credits in general, but the legal landscape remains in flux.

By focusing on agricultural carbon sequestration as an especially unreliable means of carbon credit generation, this Note aims to expose and analyze legal problems with the voluntary carbon market. It concludes that legislative and regulatory action is necessary to bring clarity to the voluntary carbon market and explores possible means by which the law might facilitate reliable and permanent removal of carbon dioxide from the atmosphere.

* J.D. Candidate, 2023, University of Illinois College of Law; B.S., 2014, University of Illinois Urbana-Champaign. Many thanks to the members and editors of the University of Illinois Law Review for their help with this Note. To Professors Warren G. Lavey, Heidi M. Hurd, and Eric T. Freyfogle for their guidance and comments. And to my wife, Brianna, and my mother, Nancy, for their endless support. I dedicate this Note to my late father, Alan, who from a young age instilled in me passions for learning, the environment, and agriculture.

The full text of this Note is available to download as a PDF.