Seventy days from now, the likely future of US climate policy for at least the next decade will be determined. Moreover, what happens in the US won't stay in the US.
Should Trump retain the presidency and the Republicans their Senate majority a rollback of US environmental protections to a time before Nixon would be all too possible. Continued Democratic control of the House is insufficient to stop Trump from exercising or even abusing presidential powers. Over the course of his presidency, US environmental policy has been made in courtrooms rather than the halls of Congress.
Under almost any circumstance, a Biden victory would serve to put the nation back on a decarbonization course—albeit one that could prove as vulnerable to a reversal of fortune as Obama's environmental legacy and would occur to Trump. Should the Democrats capture both ends of Pennsylvania Avenue, the possibility of sweeping climate legislation rises substan-tially—that is assuming they are better at reconciling intraparty differences than they were the last time they controlled Congress and the White House.
Whether by executive order or sweeping legislation, a just transition to a low-carbon economy will prove a heavy lift, and, as always, the devil is in the details. In the case of climate change, the details are considerable.
I am speaking here of the executive, legislative, and regulatory actions necessary to issue and implement decarbonization orders—whether of Congress or the president. To paraphrase Senator Warren (D-MA), there are pathways for that—thanks to the efforts of two law professors, 59 experts, and a growing gaggle of other attorneys and experts willing to devote their time to the Legal Pathways to Deep Carbonization project (LPDD or Project).
The Project is a joint undertaking by Columbia University's Sabin Center for Climate Change Law and the Widener University Commonwealth Law School's Environmental Law and Sustain-ability Center. It's built on the foundation of the book, Legal Pathways to Deep Decarbonization in the United States (Pathways publication), edited by law professors Michael B. Gerrard[i] and John C. Dernbach[ii].
Professors Gerrard and Dernbach brought together leading scholars and practitioners to chart practical pathways for drastically reducing fossil fuel use and greenhouse gas emissions in the US. Their initiative was sparked by two reports of the Deep Decarbonization Pathways Project (DDPP) led by the Institute for Sustainable Development and International Relations (IDDRI) and the Sustainable Development Solutions Network (SDSN).
The Deep Decarbonization Pathways Project (DDPP) is a global collaboration of energy research teams charting practical pathways for deeply reducing greenhouse gas emissions in their own countries. It is predicated on taking what is needed seriously to limit global warming to 2°C or less.
With 35 chapters and over 1,000 legal options, the book is like a menu of offerings for public consumption. It shows that real actions can be taken, now and in the future, to achieve deep decarbonization[iii].
Gina McCarthy, the former administrator of the Environmental Protection Agency under President Obama, has praised the Pathways publication for providing individuals, businesses, com-munities, cities, states, and the federal government with answers to the question--what they can do to rise to the climate crisis.
Deep decarbonization requires systemic changes to the nation's energy economy. Accomplishing the task means amending existing laws and drafting new ones. It also requires putting in place needed regulations. A process that requires thousands of lawmakers and bu-reaucrats at all levels of government to put pen to paper. The Legal Pathways project is an effort to give advocates, lawmakers, and implementers a leg-up on the process.
The Pathways publication discusses, in detail, 34 critical decarbonization topics, including energy efficiency, conservation, fuel-switching, electricity production, fuels, carbon capture, and negative emissions. It also examines non-carbon dioxide pollutants, e.g., methane, and a variety of cross-cutting issues. Each of the chapters explains their respective topics—in a manner comprehensible to experts and non-experts alike. Equally important, each chapter discusses the contribution to US greenhouse gas (GHG) emissions of each topic, e.g., transportation, and identifies the main legal issues surrounding it.
The over 1,000 recommendations in the book offer various policy options. They do not provide the language of model implementing legislation. Drafting the model legislation is the work of the current follow-on phase of the project.
The project is working with individual lawyers and law firms to undertake the detailed work of drafting and peer-reviewing model legislation. The recruits will be contributing their time and efforts on a pro bono basis.
Special care is being exercised to make sure there are no conflicts of interest. As each new law is drafted and reviewed, it will be posted on the LPDD website. On the website, there are also hundreds of other legal resources along with names of core team members,[iv] and links to the team leaders. Attorneys interested in volunteering their time may contact the project through the website.
As I've written before, solar and wind projects are not always welcomed in a community. And, once again, there's a plan for that. The Sabin Center for Climate Change Law and the law firm of Arnold & Porter have launched the Renewable Energy Legal Defense Initiative (RELDI). Its purpose is to provide pro bono legal representation to community groups and local residents who support renewable energy development in their communities but are encountering opposition.
Finally, I'll let the professors speak for themselves. Deep decarbonization is legally achievable with laws that we already have on the books or with laws that could be enacted. (Dernbach) This work may not be glamorous, but it's essential. (Gerard)
Let's hope that November's victors call for it.
[i] Michael B. Gerrard is the Andrew Sabin Professor of Professional Practice at Columbia Law School, where he teaches courses on environmental and energy law, and founded and directs the Sabin Center for Climate Change Law.
[ii] John C. Dernbach is the Commonwealth Professor of Environmental Law and Sustainability at Widener University Commonwealth Law School in Harrisburg, Pennsylvania, and Director of its Environmental Law and Sustainability Center.
[iii] John C. Cruden, Past Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice
[iv] Readers should note that I’m an advisor to the project.
Lead image: Honore Daumier, Un Avocat Plaidant, c. 1845 Hammer Museum, Los Angeles.
This work is licensed under a Creative Commons Attribution 4.0 International License.
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.