Creating Legal Pathways to a Zero-Carbon Future

• Author: John C. Dernbach
• Pages: 21-43

21

Chapter 2

Creating Legal Pathways

to a Zero-Carbon Future

John C . Dernb ach

What do we need to do to have a decent chance of preventing

large and growing emissions and atmospheric concentrations of

greenhouse gases from dangerously interfering with the climate

system? e answer, according to the Intergovernmental Panel on Climate

Change (IPCC), is t hat the world needs to reduce greenhouse gas emissions

by at least 40% to 70% by 2050, and to zero or below by 2100.1 Other scien-

tic reports would say we must proceed faster.2 e IPCC and others indicate

that the many paths to t his reduction should all be guided by sustainable

development.3 at is, nations must nd ways to dramatically reduce green-

house gas emissions that also foster equitable economic a nd social develop-

ment and promote security.

e task, then, can be succinctly stated as follows: starting now, we must

rapidly reduce greenhouse gas emissions to zero or below, creating a s much

social, environmental, economic, and security benet as we can, and on an

equitable basis. e IPCC reports don’t say so as succinct ly or directly, but

that is among the most essential tasks of our time.

is chapter provides an overview of the challenge of achieving a zero-

carbon f uture, a s well as the way in which sustainable development would

frame the decisionmaking process for doing so. It then reviews two major

reports that describe overall approaches at the global and nationa l levels for

meeting the zero-carbon objective. Fina lly, it describes ways to identify and

create legal pathways to that objective, building on the insights of these two

1. I P  C C, C C 2013: T P S

B 13 (2013), available at https://www.ipcc.ch/report/ar5/wg1/ [hereinafter 2013 IPCC P

S R].

2. See infra notes 16-19 and accompanying text.

3. I P  C C, C C 2014: M  C

C, ch. 4 (2014), available at https://www.ipcc.ch/report/ar5/wg3/ [hereinafter 2014 IPCC

M R].

Author’s Note: I would like to thank Austin Langon for helpful research assistance.

22 Contemporary Issues in Climate Change Law & Policy

reports. Creating legal pathways could help accelerate the transition the tran-

sition to a sustainable energy future.

I. The Challenge of the Carbon Budget

e cha llenge posed by climate change is both urgent and enormous. It is

also daunting: it requires that the world, as a whole, move as soon as possible

from the current situation of increa sing g reenhouse g as emissions to rapid

reductions in greenhouse gas emissions. A recently developed concept—the

carbon budget4—provides a way of understanding both t he ma gnitude of

this challenge a nd possible pathways for an eective response.

e objective of the U.N. Framework Convention on Climate Change is

“stabilization of greenhouse ga s concentrations in the atmosphere at a level

that would prevent dangerous anthropogenic interference with the climate

system.”5 In 2010, the Conference of the Parties to the Convention translated

the stabilization objective into a maximum permissible surface temperature

increase—2 degrees Celsius (C) (or 3.6 degrees Fahrenheit) above preindus-

trial levels.6 Parties, it said, “should take urgent action to meet this long-term

goal, consistent with science and on the basis of equity.”7 In addition, it stated

the importance of “strengthening the long-term global goal on the basis of

the best available scientic knowledge, including in relation to a global aver-

age temperature rise of 1.5°C.”8 e Paris Agreement, which was adopted

unanimously by the Conference of the Part ies in December 2015, stated the

objective in terms of both temperatures—to hold “the increase in the global

average temperatu re to well below 2°C above pre-industrial levels,” and to

“pursue eorts to limit the temperature increase to 1.5°C above pre-industrial

levels, recognizing that t his would signicantly reduce the risk s and impacts

of climate change.”9

4. Fred Pearce, What Is the Carbon Limit? at Depends Who You Ask, ENVIRONMENT360, Nov. 6,

2014, http://e360.yale.edu/feature/what_is_the_carbon_limit_that_depends_who_you_ask/2825/.

5. United Nations Framework Convention on Climate Change, art. 2, May 29, 1992, S. Treaty Doc. No.

102-38, 1771 U.N.T.S. 107. U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 I.L.M. 849 [hereinafter

Framework Convention].

6. Conference of the Parties, United Nations Framework Convention on Climate Change, Decision 1/

CP.16 (e Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-

Term Cooperative Action Under the Convention) ¶4, in Report of the Conference of the Parties on

Its Sixteenth Session, Held in Cancun From 29 November to 10 December 2010, Addendum, Part

Two: Action Taken by the Conference of the Parties at Its Sixteenth Session, FCCC/CP/2010/7/

Add.1 (2011), available at http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf.

7. Id.

8. Id. at translates to 2.7 degrees Fahrenheit.

9. United Nations Framework Convention on Climate Change, Conference of the Parties, Paris

Agreement, art. 2.1(a), in Decision 1/CP.21 (Adoption of the Paris Agreement) (2015), U.N. Doc.