The Public Supports Clean Energy but Politics Is Preventing Win-Wins
Author
David P. Clarke - Writer
Writer
Current Issue
November-December 2021
Issue
6
David P. Clarke

An August United Nations scientific assessment concluded that “unequivocal” evidence shows human activities have inflicted “widespread and rapid changes” across the planet. In September, another UN report prompted the secretary general to warn, “The world is on a catastrophic pathway” even if all Paris Agreement commitments are met. To the Union of Concerned Scientists’ Rachel Cleetus, her organization is now “beyond concerned,” with members’ feeling “heartbroken” by worsening climate damage and “alarmed” and “angry” at policymakers’ failure to act.

Frustration runs deep, not only because the climate crisis is mounting but also because major policy advances are so tantalizingly close and hold out prospects for win-win actions.

In September, following an intensive two-day markup, the House Energy and Commerce Committee passed a major portion of the Democrats’ $3.5 trillion budget reconciliation package. The bill included a $150 billion Clean Electricity Performance Program that environmentalists and Democratic sponsors argue would generate almost eight million jobs, $1 trillion in economic activity over the next 10 years, and serve as the “most powerful tool” for decarbonizing the power sector. The Department of Energy would offer electricity suppliers grants if they increase their clean supply by four percent compared with their previous year’s performance, and would penalize generators that fail to.

But Senator Joe Manchin (D-WV), whose vote is indispensable for Democrats to pass a reconciliation bill in the 50-50 divided Senate, opposes both the CEPP and the Democrats’ $3.5 trillion package full of clean energy funding.

Another significant clean energy proposal that has galvanized attention is a DOE study described as “the most comprehensive review to date” of solar energy’s potential role in decarbonizing both the U.S. electricity grid and broader energy system. The study concludes that solar energy could “power all of the homes in the U.S. by 2035 and employ as many as 1.5 million people in the process,” said Energy Secretary Jennifer Granholm in a statement. But Granholm emphasized that “strong decarbonization policies” will be needed to raise solar energy’s level from its current 3 percent to 40 percent (or 1,000 gigawatts) by 2035, and as high as 3,000 gigawatts by 2050.

However, as noted by the CEO of the Solar Energy Industries Association, Abigail Ross Hopper, “policy, plain and simple” will be the greatest hurdle to raising solar to 40 percent. “The blueprint is there, the American people support it, and now it’s up to policymakers to make it happen,” she says.

Greg Wetstone, CEO of the broad-based nonprofit American Council on Renewable Energy, expresses optimism that legislation can move forward, despite the challenges of “default partisanship on every issue.” DOE’s solar study demonstrates that the United States can make the needed clean energy transition “rapidly enough” without increasing electricity costs to consumers, “two really important conclusions.” Democrats’ reconciliation bill policies will be “foundational” both for achieving the study’s targets and for driving national economic growth, he adds.

SEIA’s Hopper also emphasizes the solar study’s significance in helping to “make it clearer than ever that solar is a real solution to the climate crisis.” With the right policies, the U.S. can decarbonize its electric grid using solar and storage while keeping electricity costs low and generating hundreds of thousands of new career opportunities across the country, she says.

Among necessary policies are the CEPP and a 30 percent investment tax credit for solar. The House panel’s September markup includes investment tax credits for solar and for storage, and other provisions that SEIA and more than 700 solar companies called for in a letter to President Joe Biden and congressional leaders. Although SEIA is “encouraged” by the “sweeping climate and energy legislation” approved by the House Energy and Commerce and Ways and Means committees, says Hopper, she cautions that “there is a long road ahead in getting legislation to the president’s desk.”

Doubtless, intense legislative fights can be expected. But Wetstone underscores reasons to be hopeful that “some version of the CEPP” and other critical policies will proceed, including Biden’s unprecedented presidential commitment to climate action, as well as the increasingly visible “horrific, immediate implications” of climate change. Moreover, he says, the Federal Energy Regulatory Commission is signaling “a really dramatic change” in rules allowing renewable energy to compete in electricity markets. But the movement toward clean energy has to be “accelerated on a climate time frame,” he adds.

Here’s hoping climate evidence and redoubled legislative efforts make 2021 a year of win-win policy breakthroughs.

The Public Supports Clean Energy but Politics Is Preventing Win-Wins

An All-of-the-Above Approach to Climate Policy
Author
Kelly Sims Gallagher - Fletcher School, Tufts University
Fletcher School, Tufts University
Current Issue
September-October 2021
Issue
5
Parent Article
The Debate: Net-Zero by 2050: How Should We Achieve a Carbon-Free U.S. Economy?
Kelly Sims Gallagher

Tempting as it is to seek a “silver bullet” in climate policy, it doesn’t exist. Policymakers must utilize a mix of regulatory, fiscal, market-based, investment, information and disclosure, education, and innovation policies to achieve a more globally competitive, low-carbon, resilient economy by mid-century. Compared with other countries, the United States has an incoherent, often contradictory approach to climate policy, and it shows. While U.S. emissions peaked in 2007, they remain 2 percent above 1990 levels. By comparison, the United Kingdom plans to achieve a 78 percent reduction below 1990 levels by 2035.

It’s important to set forth some principles for American climate policymaking. First, American policies must be predictable and durable so that private firms and individuals can make informed decisions about their investments. This will require bipartisanship so that policies don’t sharply zigzag depending on which political party is in office. Ideally, new climate legislation will be developed and passed with Republican, independent, and Democratic support because we must stop vacillating if we are to take advantage of the genuine economic opportunity in a low-carbon transition. The United States must be a real contender in the race for low-carbon markets around the world.

The economic transition must also be taken seriously. For workers who rely on carbon-intensive industries, vague assurances of clean energy jobs are hardly reassuring. It is not so simple for a parent to pick up and move to another town or state because a new job happens to be there. Moreover, many local towns, counties, and even states rely heavily on tax revenue from certain types of industry. If the local school or hospital depends on royalties to provide its services, then new sources of revenue must be found. Planning for the transition must thus begin now, town by town, city by city, county by county, and state by state. A recent National Academy of Sciences study on accelerating decarbonization called for the establishment of a new National Transition Corporation together with a National Transition Taskforce, regional planning offices, and a net-zero transition office in every state capital.

This transition must be genuinely fair and requires a new social compact. Fairness needs to be considered, among other dimensions, in terms of race, income, age, gender, and geography. Certain communities are much more vulnerable to climate change itself and others are vulnerable to the economic transition to a low-carbon economy. Others are fortunate to live in less risky places or to already be employed in a clean, low-carbon industry. Those more fortunate must recognize that they have a responsibility to help those at risk.

We need to be disciplined in our approach to climate policy. We need to set goals, performance metrics, and budgets and stick to them. Net zero by 2050 means we have 29 years to get from the 5,769 million metric tons in 2019 to no net emissions. We need a carbon budget and we need to hold ourselves accountable to it, just as most American families live within their own household financial budgets. An independent body should be established to track progress against our goals and recommend revisions to policy as needed. Congress needs to appropriate sufficient financial resources to achieve our goals.

Let’s invest wisely and efficiently. Every public dollar invested and new policy announced should get the most bang for the buck in terms of economic gain, climate mitigation, and resiliency. Let’s stop siting new infrastructure in flood-prone areas. Let’s rebuild houses, schools, and hospitals to be energy efficient and low carbon. Integrating distributed renewables and battery storage cannot only help reduce emissions but can provide power after strong hurricanes when the grid is down. We need an American infrastructure or development bank so that we can ensure that financing is available for all communities to invest in low-carbon, resilient infrastructure.

Finally, we must recognize that climate policy is really economic, labor, and social policy. The U.S. competitive position in low-carbon technologies and industries has eroded, and American firms and workers are not economically benefiting as they should from the global energy transition. China is doing a better job than the United States in domestically deploying and exporting renewable energy technology, building new nuclear capacity, and launching a thriving electric car industry.

America must invest in innovation and construct a market-based industrial policy that supports U.S. firms and labor while holding them accountable for performance. Public and private investments in research, development, and demonstration must be greatly increased, commensurate with the scale of the challenge of climate mitigation and resilience. Just as important is investment in our human capital so that we have the people to invent the new technologies, the entrepreneurs who can bring the ideas to reality, the workforce that can manufacture advanced technologies, and the government officials who can devise and execute smart policy.

Kelly Sims Gallagher is professor and director of the Climate Policy Lab at The Fletcher School, Tufts University.

Reimagining the Future
Author
John Pendergrass - Environmental Law Institute
LeRoy Paddock - George Washington University Law School
Environmental Law Institute
George Washington University Law School
Current Issue
July-August 2021
Issue
4
Reimagining the Future

WE ARE now into our second half-century of environmental and natural resources law. President Nixon signed the National Environmental Policy Act on New Year’s Day 1970, making it a convenient marker for the birth of modern environmental protection. NEPA has been called the Magna Carta of environmental law, and it heralded a new era of federal legislation, including the Clean Air Act later that year and a whole roster of laws to follow. The federal acts, along with complementary state environmental statutes, have substantially reduced pollution, resulting in cleaner air, water, and soils. And species like the brown pelican and bald eagle have been brought back from the brink.

While critical progress has been made, significant gaps in environmental laws remain if the country is to achieve a more sustainable economy. Understanding that, the authors of this article convened a diverse group of leading environmental law experts to consider how the field might need to evolve to meet current challenges and those expected over the next decades. We characterize this effort as “Reimagining Environmental Law.” In many ways, it means as well reimagining the future.

Toward that end, ELI and George Washington University Law School convened two dialogues, first at the Wingspread Conference Center in Racine, Wisconsin, in March 2019, and second at Airlie House Conference Center in Warrenton, Virginia, in November 2019. Both centers have been settings for environmental conferences for decades, with Airlie House hosting a conference in September 1969 that recommended the creation of ELI. (Information about the meetings and the attendees can be found at https://www.eli.org/environmental-governance/reimagining-environmental-law.) This article reflects the discussions at Wingspread and Airlie House, subsequent discussions with participants, and research conducted by ELI and GW Law.

In consultation with our experts, the authors concluded that among the key challenges remaining for environmental law are climate change and decarbonization, nonpoint sources of pollution, materials conservation and reuse, and ecosystem degradation and biodiversity loss. In addition, environmental justice presents both an area of needed focus alone as well as attention in cutting across all the other challenges.

The climate change problem is well-known and well-documented. The participants saw the major challenge for environmental law as finding a way to support dramatic decarbonization of the economy to avoid potentially catastrophic impact of warming and supporting needed adaptation to change. While the pathways for a transition to a low-carbon economy are known, reaching the goal of 80 percent emissions reduction by 2050 will require legal changes at all levels of government, as well as accompanying economic, political, and social changes.

Essential to the transformation needed is an economy-wide price on carbon to provide the economic incentives to make the shifts necessary to reach zero emissions. This means imposing a direct cost on each ton of greenhouse gas emitted. To accomplish this, policymakers must create a system at the national level to achieve the necessary economy-wide shifts. The participants did not express a clear preference for a tax or a trading system that caps emissions from GHG sources, though an internationally agreed system would be preferable. Any such pricing or trading system will also need to mitigate the disproportionate effect it will have on those with lower incomes, due to the higher costs of fossil fuels coupled with higher proportions of income spent on energy. It likely will also require regulatory measures to assure that environmental justice communities do not continue to disproportionately bear the risks associated with co-pollutants, like sulfur dioxide and mercury.

Given the decades-long effort to place a price on carbon and the urgency, immediate action is needed using the tools already available to reduce GHG emissions. The nation will need to address this issue across the economy through a comprehensive approach like those identified in ELI Press’s Legal Pathways for Deep Decarbonization book, which lists more than a thousand recommendations for legal instruments covering all forms of GHGs and how they are generated and released.

We also need a comprehensive and just policy for adapting to the risks — and impacts — of climate change and for helping communities become resilient. This will require an appropriate model for assessing risk. Decisions must be based on the possibility of the uncertain but potentially massive catastrophic outcomes related to natural disasters, sea-level rise, drought, and biodiversity loss. Many of these processes will require legal tools, like the model laws being produced by volunteer attorneys based on the recommendations in Legal Pathways, but others will require public investment such as transit projects, and in making buildings safer, healthier, and more energy efficient. Electrifying and investing in grid updates will also be essential in this effort, creating a more robust, resilient, and efficient network. Government agencies need to plan for how they will deliver essential services amidst climate disruptions, and how they will coordinate with partners at other levels of government. In addition to significant adaptation actions, the law must account for the liabilities associated with unintended consequences of adaptation measures.

Federal, state, local, and tribal governments need to remove subsidies, including tax breaks and other incentives, for fossil fuels and carbon-intensive industries. These governments will also need to reduce or remove regulatory barriers related to decarbonization of the economy while promoting social equity at every stage and level.

Government policies are needed to provide incentives for innovation and investment toward a carbon-free future. This will be particularly important in the absence of a price on carbon to promote development of the necessary technologies. Means to remove or sequester carbon from the atmosphere may be necessary if mitigation efforts do not advance at a sufficient pace.

An effective climate governance regime will require the engagement of the private sector in a multi-tiered system with distributed roles and accountability mechanisms. The regime must capitalize on and encourage private-sector initiatives to meet climate change goals. This can include supply chain systems that rely on a variety of approaches, including certification, auditing, labeling, and reporting programs enforced through contracts.

An equity lens will be critical in designing these polices to ensure that affected and especially vulnerable communities are meaningfully involved in designing and implementing these measures. If policies are designed to protect against the greatest potential risk, in many cases this will result in just outcomes. An updated and enhanced conception of the duty of care in both government and the private sector will help to facilitate this.

THE nation has made major strides in controlling water pollution from point sources. But many of the sources of impairment to water quality are from nonpoint sources — runoff and discharges from areas of land and operations that are not subject to direct federal regulation under the 1972 Clean Water Act. Even though these uncontrolled sources of pollution were recognized in the statute, they were not regulated because of concerns with federal legislative intrusion on state and local land use prerogatives and solicitude for such industries as agriculture, forestry, and land development.

The Wingspread and Airlie House participants preferred a more watershed-health-focused system over the status quo, which concentrates permit-by-permit on individual sources and on effluent limits on pollutant discharges. An alternative future could be far more focused on land quality and water quality results.

Given the major contribution of diffuse sources to the remaining water pollution problems, a new sense of urgency is needed for dealing with it. One way to accomplish this result could be to recharacterize these sources as “uncontrolled pollution” rather than using the innocuous term nonpoint pollution. The public and institutional motivation necessary to support advancement in law needs to be defined as achieving better environmental and public health outcomes — not controlling nonpoint sources.

State regulators should create a new structural framework for dealing with uncontrolled pollution. Simply relying on the current state water quality and waste load allocation framework has not proven effective. This new framework should capture sectors that have previously escaped requirements to reduce uncontrolled pollution. It should also focus on watersheds with major, recurrent pollution threatening public health and welfare.

Legislators can also consider funding and relying on big data, and making it publicly accessible. A great deal of data exists on water quality and more will become available as monitoring technology advances and is used by citizens. This will make it possible to define and track progress toward watershed outcomes. Sharing of data on public platforms and integration of ecological information with water quality, discharge data, geo-siting of best management practices, remote sensing, and biological sampling should be encouraged and supported.

At the federal level, officials should provide key actors with the power to create change by matching the best tool to the source of impairment. Policymakers should inventory effective regulatory and non-regulatory approaches and target these to sectors, watersheds, and problems where they have been proven. EPA or others should construct a database of tools used by the states, federal programs, the private sector, and others, and determine how these can be applied to different forms of uncontrolled pollution in different types of watersheds and settings. This resource could further be backed by supporting and funding integrated water management planning, and making funding available for implementation of the tools.

At both levels of government, policymakers should link federal and state procurement to effective management of uncontrolled pollution in the supply chain. This approach recognizes that government funding is substantial in the acquisition of food and fiber, materials, energy, and development. The reimagined approach would expressly provide for disclosures and certifications and perhaps pollution controls as conditions related to receiving funds.

All agencies at the national level need to require that federally funded land and water and development projects, and all authorized activities on federal lands, must result in net water quality improvements — or at least restoration to no net loss of water quality where there is no opportunity to achieve a net improvement.

THE European Union in its Circular Economy Plan noted, “There is only one planet Earth, yet by 2050, the world will be consuming as if there were three.” According to the United Nations, “In 2017, worldwide material consumption reached 92.1 billion tons . . . a 254 percent increase from 27 billion in 1970, with the rate of extraction accelerating every year since 2000. This reflects the increased demand for natural resources that has defined the past decades, resulting in undue burden on environmental resources.”

The United Nations’ Sustainable Development Goal 12 deals with production and consumption and notes that achieving its goal requires urgent reduction of the world’s “ecological footprint by changing the way we produce and consume goods and resources.” SDG 12 points out that “efficient management of our shared natural resources, and the way we dispose of toxic waste and pollutants, are important targets to achieve this goal. Encouraging industries, businesses, and consumers to recycle and reduce waste is equally as important.” Materials consumption is particularly challenging in the United States. In 2017 U.S. per capita materials consumption, including fuels, was 42 percent higher than Europe’s. Despite the increasingly clear adverse impacts of unsustainable materials use, the issue has received relatively little attention in U.S. environmental law.

The Wingspread and Airlie House participants built on work by the leading advocates of the circular economy, the World Resources Institute and the Ellen McArthur Foundation. The participants reimagined materials conservation and use to include a number of elements. With growing corporate, government, and nongovernment interest in the idea of a circular economy, the participants thought now is a good time to convene a national dialogue to discuss how to move to such a system in the United States.

Extended producer responsibility, or EPR, at the national level would create a level playing field across the country. A national EPR for electronics waste would help reduce environmental impacts and could make it easier for businesses to set up systems.

A national GHG policy that establishes a price on carbon would be important beyond just climate change by helping drive product redesign and reductions in materials use. A price on carbon could drive business innovation by providing a financial incentive to look carefully at energy inputs needed to extract new resources and manufacture and transport products, and to find ways to reuse them.

Federal procurement rules could be redesigned so that criteria favor products and services that are consistent with a circular economy. Further, as part of the economic recovery effort, the federal government is likely to spend a great deal on infrastructure. As a result, the new administration can have a major impact on responsible production and consumption by taking materials conservation and circular economy principles into account in procurement, perhaps through executive orders that build on available authority. Such changes could model desired behavior for state governments, universities, and other large procuring organizations.

Resource Conservation and Recovery Act regulations could be revised to reflect the circular economy hierarchy, which goes beyond the traditional reduce, reuse, recycle paradigm to include preventing the use of resources in the first instance, encouraging repairing and refurbishing, and supporting remanufacturing and repurposing. Model legislation could be developed for states to adopt this new circular economy waste hierarchy.

Materials conservation could be added as a factor to be considered in NEPA analyses. The White House Council on Environmental Quality could contribute to responsible production and consumption by providing guidance to agencies on how to consider materials use and conservation in environmental impact review.

Policymakers can explore the possibility of “fate labelling” for consumer products, so that purchasers can make more informed decisions. This could be done using QR codes or through systems in use or planned in the European Union.

HEALTHY populations cannot exist without healthy ecosystems. Driven primarily by anthropogenic activities, destroyed and degraded ecosystems threaten critical resources in significant and varied ways. Land, ocean, and freshwater systems are all affected. While legal and policy efforts have attempted to address the problem through species- or resource-specific mechanisms within geopolitical borders, the lack of coordinated efforts built around ecosystem-based solutions has meant the problem continues relatively unchecked. Without humanity changing current production and consumption patterns, along with precipitous population growth and unsustainable practices, trends will continue to worsen.

Healthy habitats provide untold benefits, sometimes called ecosystem services, which must be adequately preserved. Responses to these challenges must be direct and swift to avert the most significant impacts of development.

At least eighty countries have adopted policies to help ensure any impacts to biodiversity or ecosystem services from development projects are offset by mitigation, an approach known as “no net loss.” One important goal of the no-net-loss method is to make sure any populations affected by the development project and associated mitigation are not left worse off, but are ideally better off after the plans are completed.

In the United States, no federal statute focuses exclusively or directly on mitigating ecosystem degradation. Generally, domestic environmental laws focus on addressing a single issue rather than on ecosystems comprehensively. Unfortunately, these policies often do not account for the complex and interdependent nature of ecosystems. Moreover, these issues are typically managed based on short-term goals and primarily within distinct political and jurisdictional boundaries that do not necessarily reflect the scope of targeted resources. Even when governmental bodies work together on a project or program, their mandate and funding allocation falls short of long-term ecosystem restoration.

Policies at the federal, state, and local levels that emphasize no net loss of ecosystem services are needed to ensure these functions are preserved. This could be achieved by building on existing programs. An immediate action that could provide impetus to such a policy would be to revive the “Incorporating Ecosystem Services into Federal Decisionmaking” memo, issued jointly by the Office of Management and Budget, CEQ, and the White House Office of Science and Technology Policy in 2015. This memo called on “agencies to develop and institutionalize policies to promote consideration of ecosystem services . . . in planning, investments, and regulatory contexts.”

Policymakers should revise their environment and natural resources management frameworks with a goal of adopting a more holistic approach that prioritizes local ecosystem-level decisionmaking. This includes enacting federal legislation that requires no net loss of ecosystem services and encourages local and state-level ecosystem management. The framework would build on the existing approach to wetlands management but would provide expanded application and account for a wider array of natural benefits. Legislation should include provisions for grant funding for research and data collection, and for the development of multi‐stakeholder, consensus‐based ecosystem management. For example, federal actions subject to review under NEPA could shift focus from considering project impacts to ecosystem services impacts. Local and state land use decisions could build upon precedent set with mitigation banking under the Clean Water Act.

It is critical to emphasize that this approach could become a major equity concern if mismanaged. Communities must be involved so that the damages and benefits are spread justly across and within communities. This is especially true when addressing the legacy of discrimination faced by environmental justice communities and determining what damage is permissible under a no-net-loss framework. Making these decisions and processes more local provides an opportunity to protect residents from this potential concern.

Federal changes should be bolstered by efforts at the state level, including through revising or adopting state-level NEPA laws to include requiring an analysis of how a project will affect ecosystems and ecosystem services in the long term.

Policymakers at all levels should reform governance structures to complement ecological boundaries. Ecologically oriented governance will prioritize the entire habitat or watershed and more effectively integrate natural systems and environmental media to better ensure impacts are accounted for and degradation is mitigated. That reorganization will necessarily require inter- and intra-governmental cooperation at all levels — federal, state, local, and tribal. Throughout, these techniques should involve communities and incorporate traditional ecological knowledge.

To better align ecology and governance, the U.S. Fish and Wildlife Service should be given the authority to work with multiple levels of government and private entities to negotiate land use plans that protect or enhance ecosystem services. Such authority would be particularly useful when endangered species and critical habitat are at issue, providing a protective mechanism with widespread stakeholder engagement. Bringing together all parties with jurisdiction within a given ecological context with oversight by FWS may enhance cooperation and response to ecosystem management challenges.

New and existing regional governance bodies could be provided with “pre-authorization compacts” akin to water compacts and regional electricity grid agreements to address different parts of the same environmental event or phenomenon. While arguably less comprehensive than ecosystem-level management, compacts may be more feasible and can still help facilitate responsive coordination to environmental impacts.

INJUSTICE is manifest in several dimensions across the landscape of U.S. environmental law and policy, at all levels of governance, from local actions to state and federal decisionmaking. Communities of color and low-income communities often experience higher releases of pollutants, siting of undesirable land uses, and lack of access to environmental benefits and amenities. These same communities already bear a substantial health, social, and economic burden from pollutants, poorer access to healthy living spaces, effects of poverty, and inadequate access to health care. Even where pollutants and practices are similar to those experienced elsewhere, the addition of these burdens to existing health, socioeconomic, and community conditions can have greater cumulative adverse impacts on such environmental justice community residents.

At the federal level, the framework for environmental justice has been almost entirely based on executive orders and agency memoranda, rather than on enforceable laws and regulations. Environmental justice gained formal federal recognition in Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” issued by President Clinton in 1994, and still in effect today.

But there is still no focused and specific federal statutory foundation for environmental justice. EPA’s Office of Environmental Justice has identified various provisions in federal law that can be cited by federal agencies when they desire to support an EJ-related decision. OEJ also has developed EJScreen, a mapping and information tool, to assist agency decisionmakers and permit applicants in identifying communities and implementation factors where cumulative adverse impacts may occur. In the absence of legal drivers, however, this kind of tool cannot alone produce substantive change.

A number of states have enacted environmental justice legislation or adopted regulations or policy instruments to give EJ a greater role in decisionmaking. California’s CalEnviroScreen, for example, enables decisionmakers to identify environmentally burdened communities and create indices used for permitting, enforcement, and funding prioritization.

THE Wingspread and Airlie conferees recognized the need for legal processes to obtain just outcomes and not merely more accessible procedures — especially given cumulative impacts on EJ communities. They noted that EJ initiatives, in order to be effective, must be thoroughly integrated into all decisionmaking affecting the environment. It cannot simply be an add-on or check-off at the end of a decision process.

A minority of states already have constitutional rights related to the environment, but only a few of these are self-executing and enforceable by members of the public and communities. Environmental justice may be advanced by promoting adoption of such state amendments. In those states that already have only hortatory environmental amendments on the books, the approach would seek appropriate further amendment to enhance enforceability. This approach would require careful drafting of amendments to ensure that they are self-executing and hence enforceable without the need for additional state legislation. It would also need to create or recognize a public trust in the natural resources of the state, including clean air, pure water, biological resources, and publicly owned lands and resources, and state a human right to a clean and healthy environment.

Federal and state legislation that embodies important EJ procedural and outcome elements should be adopted. Such legislation can include codification of E.O. 12898 elements, including definitions of minority and low-income communities and disproportionately high and adverse impacts, as well as meaningful engagement and other provisions. The laws could require tools such as EJScreen. There could be other requirements for new development in communities overburdened by pollution to offset any projected increases in pollution loadings, with reductions in the existing pollution inventory on a 1:1 or net-reduction basis. Statutes could mandate disclosures of information by applicants or operators that will enable communities to participate in review processes and take action to protect their health and resources. They could remove legal barriers to public participation in decisions affecting EJ communities. Finally, the laws could create a private right of action for enforcement of civil rights.

For the private sector, policymakers could promote and encourage private governance and corporate commitments and accountability mechanisms for environmental justice. Companies and groups of companies and organizations can develop best practices and codes of conduct that firms integrate into their decision processes, management systems, supply chain requirements, and internal and external accountability mechanisms.

As the country embarks on the second half-century of the modern environmental law era, it is important to recognize both the successes of the past as well as the issues for which environmental law has not been as successful. The Reimagining process was designed to focus on some of the critical issues to ensure that policymakers seriously address remaining problems and inequities. We hope that when our successors look back on environmental law at 100, they will be able to identify significant progress in the areas identified by the Wingspread and Airlie House participants as critical issues. R&P

John Pendergrass is ELI’s vice president for programs and publications, and leads the Research and Policy Division. ELI Visiting Scholar LeRoy Paddock is distinguished professorial lecturer in environmental law at George Washington University Law School.

———

The authors thank all the Wingspread and Airlie House participants, who are the true authors of this article, and James McElfish, Sandra Nichols Thiam, and Jarryd Page, who drafted the white papers that were excerpted here.

 

ELI POLICY BRIEF No. 17 Over the next 50 years, policymakers need to fill in significant gaps in environmental and resource law to achieve a sustainable economy. That means addressing climate change, polluted runoff, materials reuse, ecological degradation, and environmental justice.

Joe Biden Has Lofty Goals but Must Navigate Political Minefield
Author
Bob Sussman - Sussman & Associates
Sussman & Associates
Current Issue
July-August 2021
Issue
4
Bob Sussman

Joe Biden has aimed high on climate change. And with good reason. His proposals present the nation with a stark choice — either take radical steps to decarbonize the U.S. economy or accept irreversible warming trends that have dire consequences. It’s hard to overstate the importance of this choice. After decades of half-measures, we are nearly out of time to avoid unsustainable global temperature increases.

Given the imperative of acting against this threat, Biden’s recently announced goals for US greenhouse gas reductions — a 50-52 percent cut from 2005 levels by 2030 leading to net-zero emissions by 2050 — should be unassailable. However, reductions of this magnitude are far beyond any we have achieved before and will require an unprecedented national commitment to decarbonization.

Under President Obama, the replacement of coal with natural gas for power generation achieved a painless and largely voluntary decline in emissions. In 2015, Obama raised the stakes, committing the United States to a 24-26 percent emission reduction by 2025. But this goal was abandoned in the Trump years and emissions were only 12 percent below 2005 levels in 2019.

Making up this shortfall by 2025 and then reducing emissions by another 25 percent by 2030 are possible only with a rapid, across-the-board transition away from fossil fuels. While a hydrocarbon-free future has always been a vision of climate advocates, oil and gas still remain embedded in all sectors of our economy. A world without fossil fuels is deeply threatening to many Americans who sense upheaval and dislocation rather than opportunity. Can Biden persuade a divided public and polarized Congress to take this leap forward?

There is reason for cautious optimism. Climate science is no longer under attack and there is tacit acceptance that planetary warming is real and linked to human-induced CO2 emissions. The business community has moved from near monolithic opposition to emission reductions to measured and in some cases full-throated support. Pressure by activist investors, sensitivity to public criticism, and corporate sustainability programs have all contributed to this shift.

But the biggest factor is that, with rapid improvements in technology, mainstream companies in the electric power and transportation sector are embracing low-carbon business models and committing to ambitious goals backed by robust capital investment.

This dynamic creates an opportunity to align business with Biden’s climate agenda. To court the business community, he is pursuing a carrots-and-sticks strategy. His Jobs Act offers incentives and subsidies to build out the infrastructure — such as transmission lines and charging stations — necessary to accelerate the market penetration of zero-emission electric power and vehicles.

In return, he is proposing to set binding near-zero emission targets for 2035 that would be implemented legislatively (a clean energy standard for electric power) or under existing law (tailpipe emission standards for new vehicles under the Clean Air Act). The Biden team is banking that businesses already committed to clean energy will support these targets in order to obtain the largess of the Jobs Act and the regulatory certainty they need for long-term planning and investment.

However, Republicans are not on board and have little interest in joining forces with their traditional business allies. Their focus is on next year’s mid-term elections and they hope to rally their base by portraying Biden’s agenda as expensive, leftist, and deeply threatening to the status quo. Without explicitly denying the reality of climate change, the Republican strategy is to stoke the fears of the electorate by conjuring up dark images of job loss, energy shortages and outages, wasteful government spending, higher taxes, and less freedom of choice.

The president has a powerful answer: the clean energy transition will create new jobs and business opportunities and maintain U.S. competitiveness as China and other rivals race to achieve global dominance in electric vehicles and renewable power. But Republicans are discounting this message and betting that their supporters will see the clean energy future and its promise of economic growth as a mirage. Better to do nothing, they imply, than risk declining incomes, a lower quality of life, and heavy-handed government intervention.

As the Biden team undoubtedly knows by now, a bipartisan mandate for his climate proposals is not in the cards. However, if Democrats hang together, the Senate reconciliation process provides a narrow but viable path forward in the face of Republican opposition. This path carries political risks and Democrats could pay a price at the polls in 2022. However, the stakes for the planet are too high to retreat.

Bob Sussman is principal of Sussman and Associates, an environmental consulting firm. He can be reached at bobsussman1@comcast.net.

Joe Biden Has Lofty Goals but Must Navigate Political Minefield.

Tech Need for Rare Earth Elements May Fuel Rare Bipartisan Response
Author
David P. Clarke - Clarke Communications Consulting
Clarke Communications Consulting
Current Issue
July-August 2021
Issue
4
David P. Clarke

Some Democrats and Republicans want to end the U.S. dependence on China for rare earth elements. REEs are essential for electric vehicles, energy storage batteries, and solar panels. They are also used in jet fighters and other military materiel. At the same time, President Biden wants U.S. greenhouse gases to be slashed 50 percent by 2030, unthinkable without a massive deployment of clean energy technologies. Is this a rare opportunity for bipartisan policy?

According to U.S. representatives from Texas Lance Gooden (R) and Vicente Gonzalez (D) and others, the answer is a clear yes. “This should not be a partisan issue,” the lawmakers said in introducing their Reclaiming American Rare Earths Act in April. The bill, one of several REE proposals, would enact a permanent tax deduction for mining, reclaiming, or recycling REEs in the United States and support developing domestic supply chains for the materials. Currently China dominates 80 percent of REE supply chains.

Both Biden and former President Trump recognized the need for domestic production of these critical minerals with government support, Gooden and Gonzalez said in emphasizing the issue’s bipartisan nature.

Case in point: On February 24, Biden signed an executive order that launched a 100-day review of U.S. supply chain strengths and weaknesses across four key industries, including critical minerals.

In June 2019, the Trump State Department announced a multinational Energy Resource Governance Initiative to help build sustainable REE supply chains. At his April 23 Leaders’ Summit on Climate, Biden embraced the initiative, noting that its focus has expanded to include “greening mining operations” in addition to re-using and recycling key REEs.

Although safeguarding REE supplies should be bipartisan, Democrats and Republicans are “talking past each other,” says Joe Britton, executive director of the Zero Emission Transportation Association, a full supply chain coalition advocating for 100 percent EVs by 2030. During a May 5 House hearing on decarbonizing the transportation sector, GOP lawmakers focused on China’s REE advantage and African child labor concerns as a reason not to invest in EVs, while Democrats see dozens of reasons for doing so.

In testifying at the hearing, Britton stressed that the United States “cannot be on the sidelines” while China and other countries continue solidifying their control over sectors like critical commodities, processing, and manufacturing. He noted that Tennessee’s Republican governor called a $2.3 billion EV battery plant facility being built in Spring Hill the “largest single investment of economic activity in the state’s history.”

“That’s our opportunity,” Britton said. In expanding the EV and clean energy sectors, the United States will prioritize materials needed to achieve net-zero emissions and could support that with such policies as tax incentives. Britton believes that with “critical mass” for battery manufacturing and a “strong market signal” on the U.S. economy’s direction, investments will arise to relocate the full REE supply chain domestically, including the processing market that China now controls. Creating a domestic REE supply chain must be a top priority, he said.

But despite the minerals’ essential role in EVs and clean energy, mining and processing the materials can be environmentally damaging. It generates toxic air, water, and waste pollution that has left China wrestling with a “toxic aftermath,” a Yale Environment 360 article states.

Concerns about environmental impacts as the U.S. and allies move to recreate domestic REE supply chains prompted the Energy Department in January to announce $28.35 million in federal funding for projects to advance U.S. REE processing.

According to Jordy Lee, program manager with a Colorado School of Mines program, it is probably less difficult to create a sustainable U.S. REE sector than many believe, though “it depends on what you mean by sustainable.” Generally, “we don’t really know about the full rare earth environmental impacts,” Lee says.

When the United States was the REE world leader, environmental oversight was limited, so a lot of impact information is missing, Lee says. Today, the country lacks the expertise and infrastructure, and China is not very open about sharing environmental data from its decades of controlling production, he adds.

According to the State Department, REE demand could rise as much as 1,000 percent by 2050 as the world tackles climate change. Will urgency over the environment merge with urgency about rebuilding REE supply chains and pave a bipartisan pathway?

“We don’t really have a choice,” says Britton. The United States is poised to get REEs and clean energy right or forever cede control.

David P. Clarke is a writer and editor who has served as a journalist, in industry, and in government. Email him at davidpaulclarke@gmail.com.

Tech Need for Rare Earth Elements May Fuel Rare Bipartisan Response.

Momentum Is Surging for Green Hydrogen in Clean Energy Future
Author
David P. Clarke - Clarke Communications Consulting
Clarke Communications Consulting
Current Issue
May-June 2021
Issue
2
David P. Clarke

As the Biden administration pursues an aggressive climate change strategy, a technology that has received growing attention is hydrogen, an energy carrier that Arshad Mansoor, the CEO of the Electric Power Research Institute, recently said was “always ten years away.” But not now. In February, Mansoor told state energy regulators that hydrogen’s moment has arrived. That sentiment was echoed by Joe Biden’s climate envoy, John Kerry, who in March, at a major energy conference in Houston, urged oil and gas industry officials to seize the “huge opportunities” for producing and transporting hydrogen in less “damaging and carbon-intensive” ways.

Today’s hydrogen momentum began internationally, says Bill Zobel, executive director of the California Hydrogen Business Council, an advocacy group that is in the forefront of hydrogen development. While the United States has been blessed with abundant fossil fuels, other nations have been less fortunate and relied on imports.

But now, post-COVID-19, import-dependent nations have decided to develop hydrogen as an energy carrier that can be made from water and other sources and “integrate it into their economies in a big way” because it is applicable to almost any economic sector, says Zobel. With huge international investments underway, “We’re now starting to get into that.” In addition, with Biden’s decarbonization efforts as another driver, “We’ll continue to see a lot of different areas of the [U.S.] economy move in that direction,” he adds.

The business council’s diverse membership, including utilities, automakers, and other sectors, “all see opportunities” in hydrogen and are working together to promote policies that will open markets. That broad interest was reflected in the February 2 announcement of a new 11-company Hydrogen Forward coalition whose members include Shell, Toyota, Cummins Inc., and CF Industries, the world’s largest ammonia manufacturer.

Hydrogen is “definitely enjoying some interesting momentum” for several reasons, says Rachel Fakhry, a climate and energy analyst with the Natural Resources Defense Council. First, countries worldwide are adopting ambitious climate goals, and hydrogen is seen as a great resource to clean up challenging sectors, such as shipping, aviation, and manufacturing, to help meet national goals. Second, the costs of renewable energy have plummeted dramatically and completely changed the dynamics of hydrogen use. Cheap wind- and solar-generated electricity can be used to split water and produce emissions-free “green hydrogen,” California’s main target. And third, fossil fuel companies “are really getting behind this” because producing, storing, and using hydrogen has a lot in common with fossil fuels, thus giving the sector a lifeline to continue having a role in the emerging decarbonized economy.

While the confluence of forces is creating momentum, Fakhry says there are reasons to be cautious. A fundamental issue concerns the “forms of supposedly clean hydrogen” that are actually being incentivized, she says. Bills are being offered that encourage a wide range of low-carbon hydrogen forms rather than truly clean forms. “So, we are concerned,” Fakhry says, even though NRDC recognizes the real potential for hydrogen to clean up hard-to-decarbonize sectors. For example, in long-distance aviation clean hydrogen is “a leading solution,” and it can play a key role in shipping and long-distance trucking.

Another concern, however, is that hydrogen is so versatile that it could be used in sectors where it should not apply, such as to heat buildings, in passenger cars, and other applications. It doesn’t make sense economically or for other reasons to use hydrogen indiscriminately wherever it can be adopted, Fakhry says. Buildings can be less expensively electrified, for example. However, groups are touting hydrogen for expansive applications, thereby derailing investments in existing cheaper solutions that could be readily deployed. NRDC’s goal is to channel hydrogen into “really high-value” applications that are more cost-effective than alternative solutions.

So far, the Biden administration has been “pretty hazy” on hydrogen, expressing support for the resource while focusing mainly on lowering the cost of green hydrogen to compete with natural-gas-based hydrogen, Fakhry says. But the Department of Energy is starting to pursue an interesting “pivot” from its past interest in hydrogen-fueled passenger vehicles to how hydrogen could fit into a “whole economy-wide decarbonization” effort.

It is “a million-dollar question” what size role hydrogen will play in achieving the goal of net zero carbon by 2050. But based on studies by NRDC and others on decarbonizing the economy, hydrogen will probably play a smaller part than wind and solar. While relatively marginal, however, hydrogen’s role will be “absolutely key” in addressing aviation, manufacturing, and other areas, Fakhry says.

Momentum Is Surging for Green Hydrogen in Clean Energy Future.

Imperatives for Action on Climate Change
Author
Christopher K. Carr - C2E2 Strategies LLC
C2E2 Strategies LLC
Current Issue
March-April 2021
Issue
2
Parent Article
Advocating for the Future
Christopher K. Carr

Today, green lawyering can often mean doing your best to address climate change issues. Indeed, many scientists and economists view significantly reducing greenhouse gas emissions as essential for the health of both the environment and our nation’s economy. The stated goal is reaching net-zero greenhouse gas emissions by mid-century, or “deep decarbonization.” Lawyers have a key role to play in achieving this objective.

Within our nation’s deeply divided politics, lasting solutions to climate concerns must be found. Much of this durability is likely to require solutions with bipartisan appeal. And a just carbon transition must not disenfranchise Americans, including those in inner cities, Appalachia, and various industrial and rural areas.

Though I work in Washington, D.C., my personal heritage is rust-belt Ohio. The decimation of industrial centers in the 1970s was not pretty to live through, making the fairness of a carbon transition of both societal importance and personal meaning. My perspectives here also come from lawyering in a variety of contexts: co-chairing a large law firm climate change practice, serving as a World Bank senior counsel on carbon finance, chairing the Climate Change and Sustainable Development committee of the American Bar Association, and working with an array of clients and lawyers.

Many carbon transformations can benefit a broad swath of Americans. Attorneys of all kinds should focus on these. The charge for lawyers — and policymakers — is to assess what can be done, learn the tool kit of policy and legal options, and bring about measures that are good for both the environment and economy.

Modelling and analysis of deep decarbonization in the United States point to several basic pillars. These include: deep decarbonization of the electric sector (which is well underway) and increased electrification and use of other lower carbon fuels; improving energy use efficiency; carbon sequestration through enhanced farming and forests and geologic sequestration; and reducing emissions of other, more potent greenhouse gases such as methane and fluorinated compounds. These pillars have been articulated in the federal government’s 2016 Mid-Century Strategy for Deep Decarbonization and other subsequent analyses.

In addressing these pillars, lawyers have many varying opportunities to do good on climate change, often as natural extensions of their practices. Opportunities involve a broad array of legal work. The list includes project development, corporate advice, debt and equity, mergers and acquisitions, tax and securities law, litigation, energy and environmental regulatory issues, trade law, environment-social-governance advice, and various other aspects of advocacy and legal work. And opportunities arise in multiple economic sectors — electric power, transportation, manufacturing, tech, finance, agriculture, and others.

Focusing on what is economic and sustainable allows us to move far and fast. Difficult issues exist, to be sure, but proof of this practical approach is the dramatic carbon reductions in our nation’s power sector that have taken place in the last 15 years, with broad recognition that electricity can be largely decarbonized, accompanied by various clean air benefits. Reframing or distilling climate change challenges into goals such as clean energy can make issues more manageable and likely to be agreed on, pairing metrics of investment returns, carbon reductions and sustainability.

Greed is not good. Doing good and doing well is very good. Market-based carbon regulatory approaches can be highly effective in deploying human and financial capital and technology to beneficial ends. This goes beyond traditional carbon pricing measures, though these can be quite important, to other market-aware approaches. Combined with additional targeted regulatory measures, carbon regulatory tools that take advantage of markets are likely key for our particular nation to durably address climate change and pursue sustainable development. Lawyers and other stakeholders should quickly work together to achieve these goals.

Imperatives for Action on Climate Change.

To “Build Back Better,” Biden Must Undo Trump’s Obstruction Legacy
Author
David P. Clarke
Current Issue
March-April 2021
Issue
2
David P. Clarke

Given his stated commitment to an aggressive climate agenda as a top priority, it came as no surprise that on his first day in office President Joe Biden signed an executive order to rejoin the Paris Agreement on climate change.

But now the hard work begins of rebuilding credibility and crafting what experts at a Columbia University webinar said must be a realistic plan to decarbonize the U.S. economy by 2050 to avert dangerous atmospheric warming.

During the January 19 online event, Tufts University professor Kelly Sims Gallagher said the Biden administration’s first step in preparing to participate in the upcoming November meeting of the climate convention parties in Glasgow must be the adoption of a robust domestic climate policy. Under Trump, the United States failed to double its investment in clean energy research and development, didn’t meet its pledge to the Green Climate Fund, and isn’t on track to achieve its 2025 climate targets, she said.

The new administration will also have to review the legacy of Trump’s regulatory rollbacks that included weakening more than 125 environmental rules and erecting barriers to further actions. Biden’s administration must advance its environmental agenda while undoing much if not all of Trump’s deregulatory broadside.

Jump starting the process, Biden chief of staff Ronald Klain in a January 20 memorandum to heads of federal agencies called for a “regulatory freeze pending review.” Biden’s appointees must have an opportunity to review and approve new and pending rules to determine whether they raise “substantial questions of fact, law, or policy.” The outcome of that review should be well worth watching.

If agencies want it, there’s no shortage of advice. The Wilderness Society highlighted Trump’s auctioning off the Arctic National Wildlife to drillers, though lease sales drew only three bidders. But in Trump’s closing months oil companies also applied for over 3,000 drilling permits on western public lands, according to the Bureau of Land Management.

Two environmental groups in a “First Things to Fix” report listed five immediate priorities, including rejoining Paris, stricter automobile emissions standards, far-reaching limitations on National Environmental Policy Act environmental impact assessments — the list goes on and on.

Although every administration adopts 11th hour rules to cement its agenda, Trump has “ushered in an unusually large number of energy and environmental policies,” according to a Washington Post analysis, including more than two dozen since losing the election in November.

Among Trump’s closing actions, EPA’s January 6 Strengthening Transparency in Regulatory Science Rule qualifies as particularly egregious, an official with an environmental group said privately. It applies to “the majority of what EPA does” — water, climate change, toxic chemicals, and other protections,

Small wonder that the Environmental Defense Fund and other plaintiffs on January 11 filed a lawsuit asking the court to declare EPA’s rule unlawful and enjoin its enforcement until at least 30 days after Federal Register publication. Describing the regulation as an internal “housekeeping rule,” EPA leaders made it effective immediately.

But, the rule’s “entire purpose” is directed at constraining EPA’s “discretion to consider scientific research” when underlying data are not publicly available. Data underlying human studies that are critical for developing health standards are barred for legal and ethical reasons from public disclosure. The rule is a “substantive restriction,” not mere “housekeeping,” the plaintiffs argue.

But EPA’s Science Advisory Board in its final comment letter recognized the rule’s importance and said in some cases the rule could “reduce scientific integrity,” and on February 1 a U.S. District Court accepted a Biden administration request to vacate the regulation.

And it’s not just 11th-hour rules Biden’s team will have to review. In January 2020 Trump’s DOE published a “process rule” that Biden “will have to unwind” because it hampers upgrading energy efficiency standards for dishwashers, refrigerators, and other domestic and commercial appliances and building equipment, says Joanna Mauer, a senior researcher with the American Council for an Energy-Efficient Economy. As a result of the Trump DOE’s failure to meet more than 20 deadlines for updating efficiency standards, years of carbon emission reductions have been foregone, and economically justifying upgrades are now more complex and slower.

As Trump left the White House to the sound of the military band he had demanded, it was clear at least to some degree the new president will be deflected from building his future-facing agenda by having to undo much of Trump’s backward-moving deregulatory measures.

To “Build Back Better,” Biden Must Undo Trump’s Obstruction Legacy.

Pro Bono Lawyers Draft Deep Decarbonization Model Laws
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2020
Issue
5
Linda K. Breggin

Last year, ELI Press published Legal Pathways to Deep Decarbonization in the United States, a 35-chapter, 1,056-page tour de force edited by Professors Michael Gerrard of Columbia Law School and John Dernbach of Widener Law School. The book outlines more than 1,000 recommendations for federal, state, local, and private actions to reduce greenhouse gas emissions by at least 80 percent from 1990 levels by 2050. The effort builds on the work of the Deep Decarbonization Pathways Project, a consortium of scientific research teams from over a dozen countries.

The editors recognized that their oeuvre may not be user-friendly for time and resource-constrained state and local legislators, and they subsequently embarked on an effort to develop model laws to facilitate codification of the book’s recommendations. According to Gerrard, “We particularly wanted the book to translate into action because it addresses such an important topic.” Dernbach similarly emphasizes that the “idea is to reduce the gap between recommendations and adoption.”

About a dozen model laws are currently available on the Legal Pathways to Deep Decarbonization website. Additional models are added on a regular basis and typically are accompanied by an introductory memorandum.

Dernbach and Gerrard note that they are furthest along on model legislation related to electric vehicle charging infrastructure. Among the models are a state law that addresses condominium (and other common-interest development) covenants that impede the ability to install EV charging stations; a local ordinance that requires municipalities to establish programs for converting to LED street light poles and using the resulting excess electric power to support EV charging stations; a municipal code requirement for EV-ready charging infrastructure in a percentage of new residential buildings’ parking spaces; and a municipal ordinance that requires parking facilities to designate a minimum number of EV parking spaces and charging stations.

In addition to model laws, the website’s interactive database includes enacted and proposed state and local laws, as well as other resources: cross cutting approaches to reducing emissions (such as carbon pricing); energy efficiency, conservation and fuel switching — in buildings, industry, and transportation; electricity and fuel decarbonization; carbon capture and negative emissions; and non-carbon dioxide climate pollutant reductions.

The number of laws in the database is both inspiring and daunting. The “electricity decarbonization” category alone includes over 550 resources — highlighting the value of model laws that distill the best legislative approaches and language into a single structure. To be sure, collecting and making available over 1,800 laws and other resources is a major contribution, and the website allows users to filter searches by topic, jurisdiction, location, and key words. Nevertheless, sorting through voluminous resources is a time-consuming task — and reducing the burden on legislators and advocates is the project’s raison d’être, according to the editors. As Gerrard explains, many states and localities lack resources to develop their own laws and ordinances.

Bob Freeman, a state representative from Nashville, Tennessee, who has introduced environmental and energy-related legislation in the General Assembly, agrees with Gerrard, noting: “State legislators end up spending a lot of time looking at what other states have done — to that end, model legislation is extremely helpful and the easiest way to get legislation enacted.” He also notes that, unlike legislators at the federal level, the likelihood he would compare notes about legislation with his counterpart in a nearby state “is pretty low.”

Freeman highlights another value of model legislation: “It is extremely helpful to businesses if states in the same region use a similar basic framework, as it allows for a more cohesive business environment that lets everybody know what marks they need to meet.”

In his state, Freeman says, it would be hard to pass a cap-and-trade program or put a price on carbon, but he welcomes model laws that would help achieve some of the same goals — even if incrementally. He also urges model law developers to draft not only subject matter-specific legislation but also laws that strengthen the underlying system. He cites, for example, laws that prevent state legislatures from preempting local environmental measures.

The model laws project is supported by an extensive network of pro bono lawyers. Over twenty major law firms and many individuals have volunteered to write implementing legislation for the recommendations in specific book chapters. Dernbach is quick to emphasize, however, that additional assistance is needed. Over a dozen chapters have yet to be adopted by volunteers — and the available chapters are listed under the website’s CONTACT tab.

Pro Bono Lawyers Draft Deep Decarbonization Model Laws.

New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States
March 2019

Washington, D.C.: With Democrats and Republicans arguing over the virtues and pitfalls of a Green New Deal, and with President Trump’s latest budget proposal cutting many environment- and energy-related programs, climate change policy in the United States is as divisive as ever. But a comprehensive new resource from leading climate attorneys released Monday lays out a myriad of legal pathways available to policymakers at every level of government and in private governance to reduce greenhouse gas emissions.

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