A Legal Playbook for Deep Cuts in Greenhouse Gases

Deep decarbonization in the United States is economically and technologically feasible. More than 1,000 legal mechanisms — federal, state, local, and private — are available to do the job. And there is a wide variety in the tools, enhancing the likelihood of political agreement on some combination that would work.

No one had really figured out the basics of entirely removing greenhouse gas emissions until 2012. Jim Williams and others published a paper in Science saying that there has “been little physically realistic modeling of the energy and economic transformations required” to reduce greenhouse gas emissions by 80 percent from 1990 levels by 2050. That article provides a model for deep decarbonization using three pillars: energy efficiency, zero-carbon electricity, and moving from liquid fuels in the transportation and building sectors to decarbonized electricity.

The article spurred formation of the Deep Decarbonization Pathways Project. The DDPP is a global effort to assess the technological and economic feasibility of deep decarbonization in 16 countries representing 74 percent of the world’s emissions.

In 2014 and 2015, DDPP published two reports on deep decarbonization in the United States. These reports conclude that “it is technically feasible” for the country to reduce its greenhouse gas emissions at least 80 percent in the next three decades. They also conclude that the cost of this effort would only be one percent of U.S. gross domestic product. They do not calculate the considerable public health, safety, security, economic, environmental, and other benefits, which are likely to contribute significantly to GDP.

Enormous changes would be required to achieve this level of reduction, the reports say. The United States would need to more than double the efficiency with which energy is used. Nearly all electricity would be carbon free or use carbon capture and sequestration. Electricity production would also double, because gasoline and diesel fuel for transportation would be mostly replaced by electricity.

But how is this to be accomplished? Deep decarbonization is not likely to occur unless general policies are translated into specific laws and then implemented.

To that end, in late 2015, Michael Gerrard of Columbia Law School and I began planning an edited volume to comprehensively analyze and explain the various laws that could be employed, building on the DDPP reports. The resulting book, Legal Pathways to Deep Decarbonization in the United States, is being published by the ELI Press in March. In 35 chapters authored by 59 experts, the book identifies hundreds of legal tools that could be employed to achieve deep decarbonization.

Legal Pathways describes a dozen different types of such mechanisms. These are not just the usual suspects — for instance, command-and-control regulation, market-leveraging approaches, and tradable permits or allowances — but also reduction or removal of legal barriers to clean energy and removal of incentives for fossil fuel development and use. The tool set also includes information and persuasion, better infrastructure, technology R&D, insurance reforms, property rights, and social equity.

The book is more than a toolbox. To switch metaphors, it is ultimately a playbook for deep decarbonization. In American football, a playbook is a comprehensive listing of all of the formations 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. Similarly, we realize that not all of the Legal Pathways tools will be used, but public and private decisionmakers can choose various combinations to achieve the needed reductions in U.S. greenhouse gas emissions. Indeed, various legal tools could be designed and combined to achieve quicker and deeper reductions than 80 percent by 2050, and even to achieve negative overall emissions.

While both the scale and complexity of deep decarbonization are enormous, the book has a simple message: deep decarbonization is achievable in the United States using laws that exist or could be enacted. These and other legal tools can be employed with significant economic, social, environmental, and national security benefits.

The wide range of types of mechanisms also provides great opportunity for building consensus. One particularly important category, for example, is reduction or removal of legal barriers. The many types of tools also make clear that a great many types of lawyers and other professionals are important in this effort, including not only energy and environmental experts, but also including specialists in finance, corporations, municipalities, procurement, contracting, and real estate.

Toward that end, Professor Gerrard and I are launching a project to turn the recommendations into legal language — drafting model federal and state statutes and regulations, blueprints for local ordinances, guidance documents, transactional agreements, and the like. We welcome lawyers from all backgrounds to join in this effort — all environmental professionals have a role to play.