Legal Pathways to Deep Decarbonization: Postscript
| Date | 01 October 2018 |
| Author |
10-2018 NEWS & ANALYSIS 48 ELR 10875
ARTICLES
Legal Pathways
to Deep
Decarbonization:
Postscript
by John C. Dernbach
John C. Dernbach is Commonwealth Professor of
Environmental Law and Sustainability, Widener
University Commonwealth Law School.
Summary
With this Article, ELR News & Analysis concludes
our year-long series of excerpts from Legal Pathways
to Deep Decarbonization in the United States, forth-
coming from ELI Press. We believe the urgency and
importance of this topic, coupled with the book’s
original, policy-oriented treatment of it, warranted
extensive advance coverage. Previous installments
examined an array of specic sectors across the entire
U.S. economy, with many more included in the pub-
lished volume. In this nal excerpt, one of the book’s
co-editors reects on the deep decarbonization proj-
ect, its extension and application through the “legal
pathways” described by the contributing authors, and
its signicance for the future.
Over the past year, readers of ELR News & Analysis
have seen advance excerpts from Legal Pathways to
Deep Decarbonization in the United States (a va il-
able in late 2018 or early 2019 from ELI Press), a playbook
of legal pathways for enabling the United States to address
what is perhaps the greatest problem facing this coun-
try and the rest of humanity. at book 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 simila rly aggressive carbon
abatement goals are often referred to as deep decarboniza-
tion, “deep” because it requires systemic changes to the
energy e conomy.1
In North American footbal l, a playbook is a compre-
hensive listing of all of the plays that ca n be employed
by a particular tea m. In any one game, some of these
plays will be used, and some wil l not, depending on the
circumstances. But coaches for the team draw from the
playbook to employ an appropriate combination of plays
in order to win. Similarly, Legal Pathways 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 will be used, but public
and private decisionmakers can employ various combina-
tions of these pathways to achieve the needed reductions
in U.S. GHG emissions.
e book, and the chapters excerpted in News & Analy-
sis, grew out of the deep conviction that an analysis and
comprehensive description of the large number and diver-
sity of legal tools available for deep decarboniz ation in the
United States will better enable governments as well as busi-
nesses, non governmental orga nizations (NGO s), and othe r
private actors to accelerate the transition to a decarbonized
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
Postscript 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 de-
carbonization’ 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 un-
acceptable 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_Re-
port.pdf [hereinafter DDPP U.S. P R].
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
48 ELR 10876 ENVIRONMENTAL LAW REPORTER 10-2018
economy.2 e chapters are written by legal scholars a nd
practicing attorneys who have expertise in the particular
topics they are addressing. e legal pat hways identied
include federal, state, and local actions. e lega l pathways
also include certication, auditing, labeling, and reporting
programs, which tend to be enforced through a variety of
contractual and related arrangements that are perhaps best
described as private environmental governance.3
For all four types of actors—federal, state, local, and
private—the legal pathways a rticulated fall into a wide
variety of categories. Some involve additional regulation,
but the great majority do not. A key premise is that, while
a number of technologies and other methods are available
to achieve radical reductions in GHG emissions (most but
not all involving energy eciency, fuel switching, or deca r-
bonized electricity), there are numerous legal impediments
to implementing these tec hnologies a nd method s at the
necessary sc ale and speed. e work is aimed at identifying
these impediments and devising ways to surmount them.
By adopting these methods, policymakers and lawyers can
allow cle an technology and other methods to achieve their
potential as rapidly as possible. Beyond additional regula-
tion (for some issues) and reduction or removal of legal ba r-
riers (for dierent issues), other types or categories of legal
pathways described and analyzed include market-leverag-
ing approaches, tradable permits or allowances, informa-
tion/persuasion, infrastructure development, research and
development, property rights, facilities and operations,
insurance, and socia l equity.
e authors’ objective is not to identify one best legal
approach or set of approaches for the United States to
reduce GHG emissions. Nor are we directing these at
a particular political party or particular decisionma ker.
Our objective instead is to identify the broadest possible
range of plausible legal approaches to deep decarboniza-
tion, so that public and private decisionmakers can better
understand the wide range of available choices and can
choose those legal pathways that they believe are appro-
priate or feasible.
As the book goes to press, the United States is in a pre-
carious position on climate change. On one hand, there
is already signicant observed evidence of climate change,
and the adverse eects of climate cha nge are almost cer-
tain to grow in scale a nd cost in coming dec ades. 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
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).
4. See generally G C C U.S. L (Michael B. Gerrard
& Jody Freeman eds., 2d ed. 2014).
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 Administra-
tion, seeing the climate change issue t hrough the lenses of
reducing government regulation and trying to rev ive the
coal industry, has expressed skepticism about the ba sic sci-
ence of climate change and initiated proceedings 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 decarbon-
izing the U.S. economy, we will hopefully provide more
opportunity for decisionmakers of all political persuasions
to nd common ground on a way forward.
is Postscript to our series, and introduction to the
book, rst explains the urgency of climate change and
describes the signica nce of the Paris Agreement. It then
summarizes U.S. technical and policy pathways to deep
decarbonization, as set out in two report s 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 decarbonization.
I. The Paris Agreement and the
Urgency of Climate Change
e legal pathways are intended to achieve, at a mini mum,
an 80% reduction in U.S. GHG emissions from 1990 lev-
els by 2050. While the Paris Agreement provides 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 that the United States and other countries must acc el-
erate the reduction of GHG emissions.
Two DDPP reports for the United States provide the
foundation for our legal analysis. ese reports are based
on the target of achieving a n 80% reduction in U.S. GHG
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. Emission Guidelines for Greenhouse Gas Emissions From Ex-
isting Electric Utility Generating Units; Revisions to
Emission Guideline Implementing Regulations; Revisions to New Source
Review Program, 83 Fed. Reg. 44746 (Aug. 31, 2018) (to be codied at 40
C.F.R. pts. 51, 52, and 60); Repeal of Carbon Pollution Emission Guide-
lines 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 re-
solved. West Virginia v. Environmental Prot. Agency, 136 S. Ct. 1000, 1000
(2016).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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