Introduction
| Author | John C. Dernbach |
| Pages | 1-19 |
Page 1
is book is a playbook of legal pathways for enabling
the United States to address what is perhaps the greatest
problem facing this country and the rest of huma nity.
It identies more than 1,000 legal options for reducing
U.S. greenhouse gas (GHG) emissions by at least 80%
from 1990 levels by 2050. is 80x50 target and similarly
aggressive carbon abatement goals are often referred to as
deep decarbonization, distinguished because it requires
systemic changes to the energy economy.1 In North Amer-
ican football, a playbook is a comprehensive listing of all
of the plays that can be employed by a particula r team. In
any one game, some of these plays will be used, a nd some
will not, depending on the circumsta nces. But coaches for
the team draw from the playbook to employ an appropri-
ate combination of plays in order to win. Similarly, this
book attempts to provide a comprehensive description and
explanation of legal pathways to deeply decarbonize the
U.S. economy. It is likely that not all of them wi ll be used,
but public and private decisionmakers can employ vari-
ous combinations of these pathways to achieve the needed
reductions in U.S. GHG emissions.
is book grows out of the deep conviction that an ana l-
ysis and comprehensive description of the large number and
diversity of legal tools available for deep decarboni zation
in the United States will better enable governments as well
Author’s Note: anks to Claudia Villar-Leeman for preparation of Tables 2 and 3
and for help in preparing some of the material in Part II. anks also to Nathan Berry,
Widener University Commonwealth Law School class of 2018, for research assistance.
Special thanks to Michael Gerrard, Ryan Jones, Kim Smith, Michael Vandenbergh,
and Kathy Yorkievitz for comments on earlier drafts. Parts of this introduction were
originally published in the Brooklyn Law Review, and are reprinted with permission.
1. Deep decarbonization applies not only to reductions in carbon dioxide,
but also other GHG pollutants, such as methane and nitrous oxide. “‘Deep
decarbonization’ refers to the reduction of greenhouse gas (GHG) emissions
over time to a level consistent with limiting global warming to 2°C or less,
based on the scientic consensus that higher levels of warming pose an
unacceptable risk of dangerous climate change.” J H. W .,
P D D U S, U.S. 2050
R, V 2: P I D D
U S 8 (Deep Decarbonization Pathways Project & Energy
and Environmental Economics, Inc., 2015), http://deepdecarbonization.org/
wp-content/uploads/2015/11/US_Deep_Decarbonization_Policy_Report.
pdf [hereinafter DDPP U.S. P R].
as busine sses, nongovernmental organiz ations (NGOs),
and other private actors to accelerate the transition to a
decarbonized economy.2 It is written by legal scholars and
practicing attorneys who have expertise in the particular
topics they are addressing. e legal pat hways identied in
this book include federal, state, and local actions. e legal
pathways also include certic ation, auditing, labeling, and
reporting programs, which tend to be enforced through a
variety of contractua l and related arrangements that are per-
haps best described as private environmental governance.3
For all four types of actors—federal, state, local, and
private—the legal pathways a rticulated in this book fall
into a wide variety of categories. Some involve additional
regulation, but the great majority do not. A key premise of
the book is that, while a number of technologies and other
methods are available to achieve rad ical reductions in GHG
emissions (most but not all involving energy eciency, fuel
switching, or decarbonized electricity), there are numer-
ous lega l impediments to implement ing these technolog ies
and methods at the necessar y scale and speed. is book is
aimed at identifying t hese impediments and devising ways
to surmount them. By adopting these methods, policy-
makers and lawyers c an allow clean technology and other
methods to achieve their potential as rapidly as possible.
Beyond additional regulation (for some issues) and reduc-
tion or removal of legal barriers (for dierent issues), other
types or categories of legal pathways described and ana-
lyzed in this book include market-leveraging approaches
(such as a carbon tax), tradable permits or allowances,
removal of incentives for fossil fuel use, information/per-
suasion, in frastruc ture development, res earch and develop -
ment, property rights, facilities and operations, insurance,
and social equity.
Our objective is not to identify one best legal approach
or set of approaches for the United States to reduce GHG
emissions. Nor is this book directed at a par ticular political
2. J C. D ., A T M: A-
T S (ELI Press 2012).
3. Michael P. Vandenbergh, Private Environmental Governance, 99 C L.
R. 129 (2013); Errol Meidinger, Environmental Certication Systems and
U.S. Environmental Law: Closer an You May ink, 31 ELR 10162 (Feb.
2001).
Introduction
by John C. Dernbach
Page 2 Legal Pathways to Deep Decarbonization in the United States
party or part icular decisionmaker. Our objective instead is
to identify the broadest possible range of plausible legal
approaches to deep decarbonization, so that public and
private decisionmakers can better understa nd the wide
range of available choices and can choose those legal path-
ways that they believe are appropriate or feasible.
As this book goes to press, the United States is in a pre-
carious position on climate change. On one hand, there is
already signica nt observed evidence of climate change,
and the adverse eects of climate ch ange are almost certain
to grow in scale and cost in coming decades. In conse-
quence, some state and local governments, as well as many
corporations and businesses, have taken steps to reduce
GHG emissions and adapt to climate change.4 At the
federal level, the United States has begun to ta ke similar
steps. ese eorts intensied during the Barack Obama
Administration, and perhaps the most publicly visible
and politically controversial manifestation of that was the
Clean Power Plan, which was intended to reduce GHGs
from electric power-generating facilities by 32% from 2005
levels by 2030.5 On the other hand, the Donald Trump
Administration, seeing the climate change issue through
the lenses of reducing government regulation and trying
to revive the coal industry, has expressed skepticism about
the basic science of climate change and initiated proceed-
ings to roll back many Obama Adm inistration initiatives
on climate change,6 including the Clean Power Plan.7 By
showing there are well over 1,000 other legal pathways to
decarbonizing the U.S. economy, this book will hopeful ly
provide more opportunity for decisionmakers of all politi-
cal persuasions to nd common ground on a way forward.
is Introduction rst explains the urgency of climate
change and describes the signicance of the Paris Agree-
ment. It then summarizes U.S. technica l and policy path-
ways to deep decarbonization, as set out in two reports by
the Deep Decarbonization Pathways Project (DDPP) and
in other studies. It explains why deep decarbonization is
in the best interests of the United States, and describes the
value of understanding legal pathways to deep decarbon-
ization. is Introduction concludes with a brief explana-
tion of the plan of this book.
4. See generally G C C U.S. L (Michael B. Gerrard
& Jody Freeman eds., 2d ed. 2014).
5. Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units, 80 Fed. Reg. 64661, 64736 n.384 (Oct.
23, 2015) (to be codied at 40 C.F.R. pt. 60).
6. See Columbia Law School, Sabin Center for Climate Change Law, Climate
Deregulation Tracker, http://columbiaclimatelaw.com/resources/climate-
deregulation-tracker/ (last visited June 7, 2018).
7. Repeal of Carbon Pollution Emission Guidelines for Existing Stationary
Sources: Electric Utility Generating Units, 82 Fed. Reg. 48035, 48035 (Oct.
16, 2017) (to be codied at 40 C.F.R. pt. 52), https://www.federalregister.gov/
documents/2017/10/16/2017-22349/repeal-of-carbon-pollution-emission-
guidelines-for-existing-stationary-sources-electric-utility. Prior to this, the
U.S. Supreme Court enjoined implementation of the Clean Power Plan
until all legal challenges are resolved. West Virginia v. Environmental Prot.
Agency, 136 S. Ct. 1000, 1000 (2016).
I. The Paris Agreement and the Urgency
of Climate Change
e legal pathways in this book are intended to achieve,
at a minimum, an 80% reduction in U.S. GHG emissions
from 1990 levels by 2050. While the Paris Agreement pro-
vides an orderly process for all countries to reduce their
GHG emissions, the commitments made to date under the
Agreement by the United States and other countries are
not sucient to achieve that level of reduction—and this
was true even before President Trump announced that the
United States would withdraw from the Agreement. Yet, it
is increasingly clear t hat the United States and other coun-
tries must accelerate the reduction of GHG emissions.
Two DDPP reports for the United States provide the
foundation for the legal analysis i n this book. ese reports
are based on the target of achieving an 80% reduction in
U.S. GHG emissions from 1990 levels by 2050.8 at tar-
get was eectively created in 20 09, when the United States
joined the “Group of Eight,” or G8 nations, in agreeing on
a “global long-term goal of reducing global emissions by at
least 50% by 2050 and, as part of thi s, on an 80% or more
reduction goal for developed countries by 2050.”9 e G8,
in turn, appears to have taken t he 80% goal from the 2007
climate change mitigation report of the Intergovernmen-
tal Panel on Climate Change (IPCC). e IPCC indi-
cated that an 80% to 95% reduction in GHG emissions
by 2050 by developed countries, and substantial but less
drastic reductions by developing countries, are needed to
keep atmospheric concentrations of carbon dioxide (CO2)
below 450 parts per million (ppm).10 Subsequent events
and analysis support the urgenc y of this level of reduction,
and indicate that greater and more rapid reductions may
be needed.
In 2017, average surface temperatures around the world
were 1.62 degrees Fahrenheit (°F) (0.90 degrees Celsius
(°C)) warmer than they were in the middle of the 20th cen-
tu r y.11 According to the National Aeronautics a nd Space
Administration, “Earth’s global surface temperatures in
8. J H. W ., P D D
U S, U.S. 2050 R, V 1: T R xii (Deep
Decarbonization Pathways Project & Energy and Environmental Economics,
Inc., 2015), http://deepdecarbonization.org/wp-content/uploads/2015/11/
US_Deep_Decarbonization_Technical_Report.pdf [hereinafter DDPP U.S.
T R];DDPP U.S. P R, supra note 1, at 8.
9. G8, C’ S, L’A, 10 July 2009, at 4 (2009), http://ec.europa.
eu/economy_nance/publications/pages/publication15572_en.pdf; T
W H, U S M-C S D D-
8 (2016), http://unfccc.int/les/focus/long-term_strategies/
application/pdf/mid_century_strategy_report-nal_red.pdf; DDPP U.S.
P R, supra note 1, at 8.
10. IPCC, C C M 775-76 (2007).
11. Press Release, National Aeronautics and Space Administration, Long-Term
Warming Trend Continued in 2017: NASA, NOAA (Jan. 18, 2018),
https://www.nasa.gov/press-release/long-term-warming-trend-continued-
in-2017-nasa-noaa.
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