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 humanity.

It identies 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 particular team. In

any one game, some of these plays will be used, and some

will not, depending on the circumstances. 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 decarbonization

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 scientic 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 businesses, nongovernmental organizations (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 pathways identied in

this book include federal, state, and local actions. e legal

pathways also include certication, 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 articulated 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 eciency, 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 can 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 dierent 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 Certication 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 understand 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 signicant observed evidence of climate change,

and the adverse eects 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 take similar

steps. ese eorts intensied 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 Administration 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 hopefully

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 signicance of the Paris Agree-

ment. It then summarizes U.S. technical 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 generallyG 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 codied 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 codied 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 sucient 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 eectively 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-

tury.11 According to the National Aeronautics and 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.