Climate clause

Sustainable Soil Management Obligations

Madeline’s Clause

A set of sustainable soil management obligations allowing businesses to manage their reliance on soil, its functions and related ecosystem services.

This is a climate clause

This clause brings climate considerations to your drafting. It is not yet net zero aligned. To align this clause with net zero, use our toolkit or join one of our events.

Skip to clause

Why use this?

Madeline’s Clause 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.

The clause

Additional definitions 

Agricultural Land Classification (ALC) means the system used to classify land capability for agricultural purposes in the United States, such as the NCRS Soil Classification ratings, or similar systems of land capability assessment in other jurisdictions.

Biodiversity means the variability among living organisms from all sources including but not limited to 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 a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.

Greenhouse Gasses (GHGs) means the gasses 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. 

GHG Emissions means emissions of GHGs, categorized 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 recognized as having a high SOM content and long-term carbon sequestration potential, including peatlands, mangroves, salt marshes, 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 wellbeing 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 prioritizes removal of GHGs from the atmosphere rather than avoiding or reducing third party GHG Emissions; 

(d)  That, for GHGs 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.]

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.

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 microhabitats 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, fiber, 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, or 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 fiber that rely on optimized 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: Capitalized 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.]

 

Additional clauses 

Overarching obligations of the parties

1. The parties will use all [reasonable] efforts to: 

1.1 Manage soil sustainability and promote Sustainable Soil Management when performing their obligations under this [Agreement]; and 

1.2 Cause their contractor[s] to [manage soil sustainably and] promote Sustainable Soil Management in their value and supply chains.

2. 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. 

Sustainable soil management policy

3. Each party shall adopt a Sustainable Soil Management Policy.

4. Each party shall regularly review and update its Sustainable Soil Management Policy to reflect developments in science and best industry practices.

5. Each party shall ensure that, as far as possible and in accordance with a just transition, they will support and promote Sustainable Soil Management and actively consider
Sustainable Soil Management:

5.1 In their activities in all jurisdictions;

5.2 Throughout their value and supply chains; and

5.3 In investment planning and decision-making.

Cascade throughout a party’s value chain

6. Each party shall copy clauses [1-14] into [any subcontracts that relate to the performance of this Agreement/ all of its contracts]. 

Training 

7. Each party shall include Sustainable Soil Management in staff training at all levels of its organization (including at board level), and across all aspects of its business including strategy, research and development, operations, procurement, property management.

Obligations as land owners, landlords or lessors

8. Each party shall ensure that leases and tenancy agreements under their ownership or control support Sustainable Soil Management expressly and in practice. 

9. Each party shall, in relation to land under its ownership or control:

9.1 Take all [reasonable] steps to monitor SOC levels and Soil Biodiversity indicators and maintain or enhance existing levels; and

9.2 Take into account the direct and indirect GHG Emissions associated with SOM inputs to improve and optimize climate change mitigation, adaptation and co-benefits resulting from efforts to maintain or increase SOC levels.

10. Each party shall actively consider SOC levels, Soil Type, Soil Properties, Soil Health, Soil Biodiversity, Soil Functions and Ecosystem Services, and Sustainable Soil Management in: 

10.1 Strategic planning and impact assessments; 

10.2 Environmental and Biodiversity related decision-making; and

10.3 All decision-making relating to proposed and ongoing construction and development. 

11. Each party shall:

11.1 As far as possible, avoid or minimize Soil Sealing;

11.2 As far as possible, use Brownfield Sites, redevelop previously developed sites and reuse abandoned sites rather than using unsealed soil;

11.3 Identify and take into account Agricultural Land Classification to preserve Prime Agricultural Land;

[11.4 Explore and take into account additional[, broader] land assessments and Soil Quality Assessments other than those prescribed in this Agreement with a view to prioritizing, safeguarding and restoring Soil Functions and Ecosystem Services];

11.5 Expressly specify requirements for measuring SOC levels and assessing Soil Biodiversity and soil organisms alongside Ground Condition Survey specifications and in other descriptive land and soil surveys; and

11.6 As far as possible, use construction and/or drainage techniques that allow as many Soil Functions and Ecosystem Services as possible to be preserved, including where Soil Sealing occurs.

Wetlands and high carbon soils

12. Each party agrees to protect, conserve and enhance Wetlands and High Carbon Soils [under its ownership or control] and shall:

12.1 Use all [reasonable] efforts to identify all Wetlands and High Carbon Soils [under its ownership or control/ in and/or around the property];

12.2 Take all [reasonable] steps to assess the state of those Wetlands and High Carbon Soils;

12.3 As far as possible take all [reasonable] steps to remediate those Wetlands and High Carbon Soils that are degraded;

12.4 Where relevant, take all [reasonable] steps to commence a just transition to more appropriate use and management of such Wetlands and High Carbon Soils, in alignment with climate and flood prevention objectives; and

12.5 Avoid tree planting on Wetlands which could have an adverse impact on Wetland, Soil Biodiversity, Wetland function, climate regulation or flood prevention.

Offsetting 

13. Each party shall prioritize reducing their GHG Emissions before using Offsetting. 

14. The parties shall ensure that any NbS or Offsetting schemes they are involved in are of high quality, relate to an appropriate timescale and support Sustainable Soil Management.

Read the disclaimer

Join the largest global network of lawyers and business leaders using climate contracting to deliver fast and fair decarbonisation

Join us