Land: Sustainable Soil Management

What this clause does

Brings sustainable soil management to the fore as a material ESG consideration for business operations and commercial transactions generally. It helps businesses limit the risk of actual or possible adverse environmental, economic and social impacts relating to soil management within estates, operations, supply chains and investments. The clause enhances the parties’ ESG performance and reputation, and supports sound investment decision-making.

Recitals

(A) [Consider including Eddie’s Recitals (Climate Recitals) here.]

(B) The parties acknowledge the importance of Sustainable Soil Management and agree to perform their obligations under this [Agreement] in a manner consistent with achieving Sustainable Soil Management. 

Definitions

Agricultural Land Classification (ALC) means the system used to classify land capability for agricultural purposes in England and Wales, or similar systems of land capability assessment in other jurisdictions.

Biodiversity means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

Brownfield Site means previously developed land which is or was occupied by a permanent structure and any associated fixed surface infrastructure, excluding land:

(a) that is, or was last, occupied by agricultural or forestry buildings;

(b) developed for minerals extraction or waste disposal by landfill where there is provision for restoration through development management procedures;

(c) that provides green space for the community, such as residential gardens, parks, recreation grounds and allotments; or

(d) where the remains of the permanent structure or fixed surface structure have blended into the landscape.

[Drafting note: the definition of Brownfield Site is adapted from the definition of ‘previously developed land’ in Annex 2 to the UK National Planning Policy Framework. It is suggested that this could be assessed by ‘a visual inspection of the site that leaves no doubt in the mind of any impartial bystander that any remains of permanent structures have “blended into the landscape in the process of time”’ (Haringey Council, Definitions of previously developed land and open space). This is intended to exclude unsealed soil.]

ELMS Advanced Soil Standards means the Environmental Land Management scheme (ELMS) Arable and Horticultural Soils Standard of the Sustainable Farming Incentive – Advanced Level, and the Improved Grassland Soils Standard of the Sustainable Farming Incentive – Advanced Level.

Greenhouse Gases (GHGs) means the gases that trap thermal radiation in the earth’s atmosphere. They are specified by the United Nations Framework Convention on Climate Change (UNFCCC) in Annex A to the Kyoto Protocol and may be updated periodically. [See also TCLP Glossary: Greenhouse Gases.]

GHG Emissions means emissions of GHGs, categorised as scope 1, 2 and 3 emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically.

Ground Condition Survey means a [geotechnical/ engineering/ other] survey to: 

(a) assess the suitability of land, soil, and related hydrology and drainage for the [purpose/ project] [in question/ being considered, intended or undertaken]; and 

(b) assess and allocate risk. 

The survey can be conducted before or during a construction or development project. 

High Carbon Soils means soils in ecosystems recognised as having a high SOM content and long-term carbon sequestration potential, including Peatlands, mangroves, saltmarshes, undisturbed grasslands and other organic or organo-mineral soils. 

Nature-based Solutions (NbS) means actions to protect, sustainably manage and restore natural or modified ecosystems that address societal challenges effectively and adaptively, simultaneously providing human well-being and Biodiversity benefits. 

Offset or Offsetting means the purchase of carbon credits from a project:

(a) that has been verified in accordance with [insert name of voluntary standard] or under the UNFCCC clean development mechanism (CDM) [or [successor*] UNFCCC mechanism];

(b) where the GHG Emissions avoided, reduced or removed by the project are additional;

(c) [that prioritises removing of GHGs from the atmosphere rather than avoiding or reducing third party GHG Emissions**]; 

(d) that, for GHG removals, uses storage methods that have a low risk of reversal over millennia; and

(e) that takes account of a just transition and addresses wider social and environmental goals. 

* [Drafting note: Article 6.4 of the Paris Agreement replaces the CDM by 2026. New rules implementing this were agreed at COP26. More detailed guidance will be released.]

** [Drafting note: The Oxford Principles for Net Zero Aligned Carbon Offsetting 2020 state that ‘an immediate transition to 100% carbon removals is not necessary, nor is it currently feasible, but organisations must commit to gradually increase the percentage of carbon removal offsets they procure with a view to exclusively sourcing carbon removals by mid-century. Most offsets available today are emission reductions, which are necessary but not sufficient to maintain net zero in the long run. Carbon removals scrub carbon directly from the atmosphere. This counteracts ongoing emissions after net zero is achieved and creates the possibility of net removal for actors choosing to remove more carbon than they emit.’]

Optimum Soil Properties means the optimum range of measurement or assessment of Soil Properties possible for a given Soil Type, location and climate under Sustainable Soil Management.

Peatlands means areas of land where waterlogged conditions have slowed the process of plant decomposition to such an extent that dead plants have accumulated over millennia to form peat, including a range of landscapes from treeless blanket bog to swamp forests, and areas classed as shallow or deep peat. 

Prime Agricultural Land means existing agricultural land with high capability for agriculture, and includes soils classified under the ALC as ‘best and most versatile.’

Soil Biodiversity means the variation in soil life (for example, from genes to communities) and the ecological complexes of which they are part (for example, from soil micro-habitats to landscapes).

Soil Functions and Ecosystem Services includes the following[, provided by the soil]: 

(a) supporting services including primary production, nutrient cycling and soil formation; 

(b) provisioning services comprising the supply of food, fibre, fuel, timber and water; raw earth material; surface stability; habitat and genetic resources;

(c) regulating services implying the regulation of aspects such as water supply and quality, carbon sequestration, climate regulation, control of floods and erosion; and 

(d) cultural services denoting the aesthetic and cultural benefits derived from soil use.

Soil Health means the capacity of soil to function as a living ecosystem that sustains plants, animals, and humans now and for future generations. It also refers to the relative ability of the soil to provide Soil Functions and Ecosystem Services, considered in relation to the optimum possible for that underlying Soil Type and sometimes its location and climate. [Drafting note: ‘Soil health’ is also sometimes used interchangeably with ‘soil quality’ or ‘soil properties’.]

Soil Management means all aspects of soil use and management, encompassing practical activity on the ground and all soil related decision-making, including at a strategic level (for example, in relation to land use choices).

Soil Properties means any and all of the physical, chemical and biological characteristics of soil, and their interactions, that are subject to measurement, assessment or classification. 

Soil Quality Assessment means the assessment, grading, scoring or classifying of the current and/or potential state of soil as a function of Soil Properties and/or Soil Health (and possibly other factors):

(a) for a particular purpose (for example, Agricultural Land Classification, contaminated land reports, visual evaluation of soil structure (VESS)); or

(b) for other purposes, such as multifunctionality or a specific land use. 

Soil Sealing means covering the soil surface with artificial hard surfaces, including buildings, impermeable driveways and infrastructure[, causing a largely irreversible loss of some or all soil functions and ecosystem services].

Soil Type means underlying soil classification as described in national or global soil classification reference works. 

SOC means soil organic carbon, a key component of SOM which plays a central role in maintaining Soil Health, Soil Functions and Ecosystem Services. Increasing and maintaining SOC can prevent soil degradation and reduce or contribute to limiting levels of atmospheric carbon dioxide.

SOM means soil organic matter which is the component of soil derived from living matter. 

Sustainable Soil Management (SSM) means soil management that:

(a) maintains or enhances the supporting, provisioning, regulating and cultural services provided by the soil without significantly impairing the soil functions that enable those services and/or Soil Biodiversity;

(b) maintains an appropriate balance between the supporting and provisioning services for plant production and the regulating services the soil provides for water quality and availability and for atmospheric greenhouse gas composition; and

(c) aims for the following non-exhaustive characteristics*:

(i) minimal rates of soil erosion by water and wind; 

(ii) soil structure that is not degraded (for example, from soil compaction) and provides a stable physical context for the movement of air, water, and heat, as well as root growth;

(iii) sufficient surface cover (for example, from growing plants or plant residues) that protects the soil; 

(iv) stores of SOM that are stable or increasing and as close as possible to the optimal level for the local environment;

(v) nutrient availability and flows appropriate to maintain or improve soil fertility and productivity and reduced loss of such nutrients to the environment; 

(vi) minimal soil salinisation, sodification and alkalinisation;

(vii) water (for example, from precipitation and supplementary water sources) that is efficiently infiltrated and stored to meet the requirements of plants and ensure the drainage of any excess;

(viii) contaminants that are below levels which would cause harm to plants, animals, humans or the environment;

(ix) Soil Biodiversity that provides a full range of biological functions;

(x) soil management systems for producing food, feed, fuel, timber, and fibre that rely on optimised and safe use of inputs; and

(xi) minimal Soil Sealing as a result of responsible land use planning.

* [Drafting note: the numbered paragraphs (i) to (xi) in the definition of Sustainable Soil Management (SSM) are taken from FAO, Voluntary Guidelines for Sustainable Soil Management (2017) p.3.]

Sustainable Soil Management Policy means a written policy documenting a party’s commitment to Sustainable Soil Management for the benefit of current and future generations. As a minimum, a Sustainable Soil Management Policy will include:

(a) objectives relating to each of the ten soil threats identified by the Intergovernmental Technical Panel on Soils in its Status of the World’s Soil Resources: Main Report (as updated from time to time);

(b) provisions and objectives to implement each section of this clause;

(c) the steps needed to achieve Sustainable Soil Management; and

(d) a requirement to record and make publicly available the results of soil surveys and Soil Quality Assessments undertaken on land under the party’s ownership or control. 

[Drafting note: capitalised terms relate to either a defined term in this clause or a defined term in the main agreement that this clause is designed to be inserted into.]