Technological Innovation

AuthorGary E. Marchant
Page 111
I. Introduction
e Deep Decarbonization Pathways Project (DDPP)
has set forth an ambitious and aggressive set of potential
pathways towards zero net emissions of greenhouse gases
(GHGs). ese pathways mostly involve aggressive utiliza-
tion of commercially available or near-commercial tech-
nologies. In a small number of cases, sti ll-to-be-developed
technologie s may be needed. But these technolog y path-
ways will not be achieved by “business as usual” or incre-
mental regulatory cha nges—rather they require an equally
ambitious and aggressive set of integrated and focused
legal interventions. While climate change is an interna-
tional issue and international coordination of technology
development and transfer as well as lega l interventions will
be critical, this chapter sur veys 20 potential legal interven-
tions to achieve deep decarbonizat ion in the United States,
although many of the observations and lessons discussed
may apply elsewhere.
Legal inter ventions are needed to accelerate tec hnol-
ogy development for decarbonization at each stage of the
technolog y innovation process —from discovery, throu gh
development, and eventually commercialization and w ide-
spread deployment. e technology innovation required to
achieve deep decarbonization is briey discussed in Sec-
tion II. Section III explains why a coordinated set of legal
interventions are necessary to bring about these technol-
ogy innovations essential for deep deca rbonization, and
why they will not develop from market forces or incremen-
tal regulatory actions.
Section IV describes a wide variety of legal tools that
are available to choose from for achieving deep decarbon-
ization. ese interventions include traditional standa rds,
regulations, and mandates; mechanisms that implicitly
or explicitly put a price on carbon such as a tradable per-
mit scheme or carbon tax; actions focused on stimulating
the innovation process such as research a nd development
(R&D) funding; government procurement programs;
incentives and subsidies; and more novel mechanisms
such as innovation prizes, green patents, and “soft law”
instruments. Each of these potentia l interventions has its
strengths and wea knesses, and there is no “silver bullet”
that alone can achieve deep decarbonization. Rather, a
portfolio of dierent strategies and interventions will need
to be adopted and integrated to provide the strongest pos-
sible incentives and drivers of deep decarbonization.
Section V then addresses the ma ny challenges and
complexities in select ing, implementing, a nd coordinat-
Chapter 4
Technological Innovation
by Gary E. Marchant
Deep decarbonization will require the widespread and relatively rapid deployment of clean technologies that are
consistent with a deep decarbonization pathway. Market forces, including the potential for cost savings from
energy eciency, corporate responsibility programs, and public relations, will provide some incentives for adop-
tion of cleaner technologies, but will be insucient to drive adoption of decarbonization technologies as broadly
and as quickly as needed. Accordingly, legal interventions will be needed to force adoption of decarbonization
technologies at the level and pace needed to prevent unacceptable climate change harm. is chapter addresses
the choice, implications, and coordination of legal interventions needed to meet deep decarbonization goals,
focusing on the United States. ere are a number of possible legal interventions available to encourage tech-
nologies consistent with deep decarbonization, but none alone are sucient to achieve the deep cuts needed in
carbon emissions set forth in deep decarbonization pathways. erefore, a portfolio of dierent legal tools will
be needed, and must be coordinated to ensure an integrated eort.
Page 112 Legal Pathways to Deep Decarbonization in the United States
ing legal intervention tools to support deep decarboniza-
tion. ese challenges include cost and fea sibility issues,
timing issues, fairness, coordination problems, and the
need for reexivity and adaptiveness. W hile none of these
challenges are insurmountable, they are all dicult, and
must be taken into account in plotting a legal interven-
tion strategy for deep decarboniz ation. Section VI pro-
vides some conclu sions and recommendation s, supporting
a carbon pricing mechanism such as a carbon tax sup-
plemented with direct innovation support such as R&D
funding, incentives, and subsidies.
II. Technological Innovation Is Essential
for Deep Decarbonization
New and improved clean technologies, both in energy
production and energy consumption, are essential for
achieving deep decarbonization,1 dened by the DDPP as
achieving a 80% reduction in GHG emissions by 2050,
and zero net GHG emissions by 2070.2 Achieving decar-
bonization on this scale and time line cannot be achieved
by business as usual or regulation as usual; it requires the
wholesale transformation of our energy ecos ystem and will
depend on the coordinated and mindful development and
deployment of a portfolio of advanced technologies.3
e three principal strategies for achieving these deep
decarbonization goals as dened by the DDPP—energy
eciency, low-carbon electricity generation, and fuel
switching to electricity and other low-carbon fuels—are
all dependent on technologies.4 All three of these strate-
gies must be undertaken simultaneously by all nations to
prevent unacceptable harm from climate change.5 While
much of the focus will be on electrication of the energy
supply industry using renewable zero-carbon fuels such as
wind, solar, and perhaps nuclear energy, deep decarbon-
ization will also require reformation of the transportation,
1. David Popp, Innovation and Climate Policy, 2 A. R. R E.
275 (2010), abstract available at
2. J H. W  ., P  D D  
U S, U.S. 2050 R, V 1: T R (Deep
Decarbonization Pathways Project & Energy and Environmental Economics,
Inc., 2015), available at
pdf [hereinafter DDPP T R].
3. Martin I. Hoert et al., Advanced Technology Paths to Global Climate Stability:
Energy for a Greenhouse Planet, 298 S 981, 986 (2002).
4. J H. W  ., P  D D  
U S, U.S. 2050 R, V 2: P I 
D D   U S (Deep Decarbonization
Pathways Project & Energy and Environmental Economics, Inc., 2015), avail-
able at
pdf [hereinafter DDPP P R].
5. J D. S  ., S D S N-
, W C P N L-T D D
P 2 (2015), available at
building, industria l, and agricultural industries, with tech-
nological change at the forefront of those eorts.6
While t echnology i nnovation alone may not be sucient
for deep decarbonization—organizational, institutional,
and societal innovations will a lso be required7—tech-
nological innovation is a necessary and critical require-
ment to achieve GHG reductions of 80% or more from
current baselines.8 Technology innovation includes three
steps—invention, innovation (or development), and diu-
sion, each of which is an important step in achieving deep
decarbonizat ion goals.9 According to the DDPP, “[f]unda-
mentally new technologies are not required, but technical
progress is.”10 Existing commercial and near-commercial
technologies are for the most part available to achieve a
deep decarbonization pathway—“[b]ut policy must facili-
tate technical progress and volume production to keep
transition costs low.”11 Several key low-carbon technolo-
gies—in part icular plug-in electric vehicles, solar and wind
energy, and light-emitting diode (LED) lighting—are
making or are on the verge of mak ing major market break-
throughs and driving forward a low-carbon economy.12
e primar y focus for these technologies therefore shou ld
be initial deployment (end of stage two) and diusion
(stage three) through commercialization and widespread
consumer adoption.
More basic breakthroughs are still needed with other
technologies that will also be needed to achieve aord-
able deep decarbonization. For example, “trying to create
a zero-carbon power grid with only existing technologies
would be expensive, complicated and unpopular.”13 Major
advances will be needed in the functionality and costs of
a variety of technological sy stems, including cellulosic and
algal biofuels, carbon capture and storage (CCS), energy
storage, electric vehicle batteries, smart charging, building
shells and appliances, cement manufacturing, electrical
industrial boilers, agricultural and forestry practices, and
source reduction from industrial emissions.14
6. E T C, S E T 4 (2016).
7. N A  A R, C  E P S-
  I I  C, A P
 L-C S I  E 15 (2016), available atles/Aligning_Policies-CEPS-i24c_Report%20
8. Gary E. Marchant, Sustainable Energy Technologies: Ten Lessons From the History
of Technology Regulation, 18 W L.J. 831, 831-33 (2009) [hereinafter
Marchant, Ten Lessons].
9. A  R, supra note 7, at 23.
10. DDPP P R, supra note 4, at 52.
11. Id.
12. G S, T L C E: T  
D’ S 5 (2016), available at
13. Varun Sivaram & Teryn Norris, e Clean Energy Revolution: Fighting Climate
Change With Innovation, 95 F A. 147, 149 (2016).
14. James H. Williams et al., e Technolog y Path to Deep Greenhouse Gas Emis-
sions Cuts by 2050: e Pivotal Role of Electricity, 335 S 53, 55 (2012);
Sivaram & Norris, supra note 13, at 149.

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