Climate clause

Sustainable Soil Management Obligations

Soren's Clause

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

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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.

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Why use this?

Soren's Clause limits the risk of actual or possible adverse environmental, economic and social impacts relating to soil management within estates, operations, supply chains and investments. The obligations can be applied to a range of contracts and transactional documents.

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The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) do not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and do not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

Additional 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 [pilot] – Advanced Level, and the Improved Grassland Soils Standard of the Sustainable Farming Incentive [pilot] – 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 means 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;

(d) carbon sequestration, climate regulation, control of floods and erosion; and 

(e) 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. Soil organic carbon also prevents soil degradation and reduces 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.]

 

Additional 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. 

 

Additional Clauses

Overarching obligations of the parties

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

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

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

Sustainable soil management policy 

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

3. Each party shall regularly review and update its Sustainable Soil Management Policy  to reflect developments in science and best industry practice, and to include opportunities for the parties to engage in landscape and catchment level approaches. 

4. 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:

4.1 in their activities in all jurisdictions;

4.2 throughout their value and supply chains; and

4.3 in investment planning and decision-making.

Cascade throughout a party’s value chain

5. Each party shall copy clauses [1-13] into [any subcontracts that relate to the performance of this Agreement/all of its contracts]. 

Training 

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

Obligations as land owners, landlords or lessors 

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

8. Each party shall ensure that they and their lessees adhere, as a minimum, to the ELMS Advanced Soils Standards for soils specified in those standards.

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 optimise climate 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. 

In addition, each party shall:

10.4 as far as possible, avoid or minimise Soil Sealing;

10.5 as far as possible, use Brownfield Sites and re-use abandoned sites rather than using unsealed soil;

10.6 identify and take into account Agricultural Land Classification to preserve Prime Agricultural Land;

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

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

10.9 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; and

10.10 adhere to DEFRA’s Code of Practice for the Sustainable Use of Soils on Construction Sites[, the Institute for Environmental Management & Assessment Guidance on Land and Soil in Environmental Impact Assessments] and their updates, and other relevant guidance on best practice in relation to Sustainable Soil Management.

Peatlands and high carbon soils 

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

11.1 use all [reasonable] endeavours to identify all Peatlands and High Carbon Soils [under its ownership or control/ in and/or around the site];

11.2 take all [reasonable] steps to assess the state of those Peatlands and High Carbon Soils;

11.3 as far as possible take all [reasonable] steps to protect, conserve and enhance those Peatlands and High Carbon Soils and to remediate those that are degraded;

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

11.5 avoid tree planting on Peatlands which could have an adverse impact on Peatland, Soil Biodiversity, Peatland function, climate regulation or flood prevention; and

11.6 wherever possible use locally produced peat-free products.

Offsetting 

12. Each party shall prioritise reducing their GHG Emissions before using Offsetting. The parties shall act in accordance with the guidance set out in the Oxford Principles for Net Zero Aligned Carbon Offsetting, the IUCN Global Standard for Nature-based Solutions and other best practice. 

13. 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.

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