Q&A

Wanted: 'Legion of lawyers' to fight climate change

Two leading environmental law scholars are out with a new trove of recommendations for fighting climate change, and they're recruiting lawyers to put the plan in action.

Columbia University's Michael Gerrard and Widener University's John Dernbach released an extensive playbook this spring designed to assist lawyers and policymakers working to reduce greenhouse gas emissions.

In a hefty 1,000-plus pages, "Legal Pathways to Deep Decarbonization in the United States" explores various strategies for slashing emissions of carbon dioxide and other planet-warming gases. The tome builds upon research from the Deep Decarbonization Pathways Project, a global collaboration that focuses on technical approaches to limiting global warming to 2 degrees Celsius.

Gerrard and Dernbach, who began working on their book in 2015, recruited 59 experts to author different sections. The book discusses efficiency and fuel-switching in buildings; industry and transportation; electricity and fuel decarbonization; carbon capture; and greenhouse gases other than carbon dioxide.

Rounding out the detailed chapters is an extensive index of policy recommendations organized for different types of professionals: members of Congress, EPA officials, state legislators, local government leaders and so forth.

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"We didn't want the book just to sit on the shelf," Gerrard said. "We wanted to see these recommendations implemented."

And they're not wasting any time. The book is accompanied by an ambitious action plan to recruit lawyers, many in big law firms, to do pro bono work to advance policy changes.

"I've been pleasantly surprised by the number of people that have come to us and said, 'How can I help with this? How can I help these recommendations happen?'" Dernbach said. "Our interest is in taking that interest and turning it into results."

The Environmental Law Institute, which published the book, is hosting a seminar based on its recommendations tomorrow in Washington, D.C.

Gerrard and Dernbach talked to E&E News earlier this month to discuss the project's origins, their goals and the nitty-gritty policy work they're advocating.

The new book covers broad policy areas. Can you give a brief summary of what's in it?

Gerrard: The book attempts to show all the legal techniques at the federal, state and local levels that are available in the U.S. to move to a 2-degree pathway. It's based on a detailed technical study completed in 2014 and 2015 by the Sustainable Development Solutions Network and a group in Paris called [the Institute for Sustainable Development and International Relations]. We asked, how does the law need to change in order to be on that pathway?

Dernbach: They did a technical and economic assessment; they did not do a legal assessment. And they looked at four different pathways: a high renewables pathway, a high carbon capture and sequestration pathway, a nuclear pathway, and then a mixed pathway that employed each of those three in roughly equal measures. The basic conceptual framework that they built was an understanding that there are three pillars to deep decarbonization: You need to improve energy efficiency by a factor of at least two between now and 2050. You need to pretty much decarbonize the electric sector, and you need to, in general, move motor vehicles from liquid fuels over to electricity, and the same with buildings. Those are the three pillars. And what the Deep Decarbonization Pathways Project did not do was explain what laws might get you to each of those pathways. That's what our book attempts to do.

Does your book break new ground in any areas?

Dernbach: The standard ways that we tend to talk about reducing greenhouse gas emissions tend to fall into two categories. One is additional regulation, and the other is market-based tools, particularly carbon pricing. One of the really novel and important aspects of our book is it shows that in addition to those two types of legal tools, there are something like 10 other types of legal tools, one of which is removing legal barriers. The issue of climate change is often framed in terms of more law and more regulation, but in truth, there's a great deal you can do to move toward reducing greenhouse gases simply by getting law out of the way.

There are any number of recommendations in the book, for example in two chapters on finance, that would simply make it easier for people that have capital to make that capital available for clean energy. And there are all sorts of other types of recommendations beyond that. From my point of view at least, one of the values of the book is that it shows that there are legal tools that can appeal to people in pretty much any part of the political spectrum. There's more than 1,500 legal tools in the whole book. You take that number of tools, plus the variety of types of tools, there are actually many, many more choices than we might have believed existed.

Gerrard: Most of the focus on greenhouse gas reductions is focused on electricity and transport, and we have a great deal on electricity and transport. But we also talk to a much greater extent than you usually see about the role of agriculture and forestry and use of bioenergy as a replacement for natural gas, about the role of pollutants other than carbon dioxide, and many other things that ordinarily don't play a major role in these discussions.

Do you get into courtroom strategies at all, like nuisance litigation or the kids' climate case, Juliana v. United States?

Gerrard: Not really. Our focus was on those kinds of measures that could have a quantifiable impact on reducing greenhouse gas emissions. And much of the prominent litigation is several steps removed from any quantifiable impact. We do have one chapter, it's called "Phasing Out the Use of Fossil Fuels for the Generation of Electricity," and it does talk about some of the litigation that has been used to try to shut down coal-fired power plants, for example. But we don't get into the Juliana case or the toxic tort litigation at all.

Dernbach: We focused mostly on laws that exist or could be enacted. The courts are not one of the actors that we targeted in terms of actors in the book. We thought that that was an appropriate topic for other efforts. That's just not where we aimed.

One of the most interesting aspects of your book is that it also includes an action plan to form a network of lawyers willing to do pro bono work on these issues. Can you tell me more about that?

Gerrard: We didn't want the book just to sit on the shelf. We wanted to see these recommendations implemented. Richard Horsch, who recently retired as an environmental partner at White & Case, has volunteered to coordinate the effort to recruit and supervise pro bono lawyers to try to carry out the legal drafting such as model local ordinances and federal and state statutes. Rick, John and I and others are out there recruiting law firms and lawyers to take on particular parts of the book.

Dernbach: And I would add that this effort is not the only effort out there. There's another group of lawyers called A Call to the Bar, which is about engaging lawyers in a variety of different ways to do work on climate change. They're well aware of our book, and a lot of the people in the Call to the Bar effort are either contributing authors to our book or people who are interested in working to get the recommendations in the book enacted.

I've been pleasantly surprised by the number of people that have come to us and said, "How can I help with this? How can I help these recommendations happen?" Our interest is in taking that interest and turning it into results.

Have you seen results so far or gotten any traction on particular issues?

Dernbach: Some of the recommendations that are identified in the book have already found their way into law. There was a recommendation for tax incentives for carbon capture and sequestration ... that found its way into the bipartisan budget legislation that was, I think, signed into law in 2018. The recently signed farm bill has a lot of the climate-friendly practices that were identified in the agriculture chapter.

I'm not saying cause and effect. I don't know specifically who said what to whom to get these enacted. But what we see is that those two examples are precisely the kinds of things that need to be done but which don't often come to the public's attention. They illustrate a key point that Michael was making earlier, which is the great variety of action areas that are identified in the book provide all sorts of ways in which you can move things forward.

Gerrard: We are already seeing the first-draft laws emerge from our legion of lawyers. We've just started, but some have already been producing them. We're going to subject all of the work product to peer review, just as the book itself — each chapter went through separate peer review.

Is the book intended mostly for lawyers or for a broader audience?

Gerrard: It's intended for lawyers and legislators and regulators, as well as scholars and students.

Dernbach: I would add that it's for individual citizens or members of different kinds of citizen organizations who are interested in what kinds of legal measures they can advocate.

What kind of feedback are you getting?

Dernbach: That it's a big resource and an important resource. I've just spent two days with the Pennsylvania Bar Institute's annual environmental law forum, and that's a lot of the feedback I'm getting.

Gerrard: People are amazed by its heft. 1,100 pages of dense type, so it has a great many words and footnotes in it.

But it's not a doorstop, right?

Gerrard: We hope that it is not used as a doorstop, but who knows. Or as a sleep aid.

Dernbach: What we did at the beginning of the project was we developed a list of chapters that needed to be written on and then we used our contacts as a starting point to identify the strongest authors we could think of to write on particular chapters. Some of them are with law firms. A great many of them are law professors in various places. Michael wrote the chapter on [utility-scale renewable generating capacity]. We both edited, and we subjected them to peer review, and we also shared them with the technical people at the Deep Decarbonization Pathways Project. Our idea was, we wanted to generate a work product that would be understood to be authoritative.

Do your recommendations depend on who is in control of Congress or the White House?

Gerrard: Some of it becomes much more relevant if we have a change in the occupant of the White House. There are several places we say that this is not likely during the current administration, but some future administration may take action. But it's also very relevant that there are quite a few states right now that are in the control of governors and legislatures who want to take action on climate change. During the Trump era, much action can take place at the state and city level.

Dernbach: We were a fair ways into the book when the election occurred, and one of the things that we needed to remind some authors about was, don't take federal recommendations off the table just because they don't appear to be politically feasible now. We wanted a book that would have a decent shelf life. That's a really important part of reality for us.

Anything else you want to highlight about the project?

Dernbach: This is a technically complicated book because the subject of deep decarbonization is technically and legally complicated. But the book also has a simple message. Deep decarbonization is legally achievable with laws that we already have on the books or with laws that could be enacted. These new or modified laws could create significant economic, environmental, public health, job creation and national security benefits. That's really the simple message of the book: We can do this.

Gerrard: Many people are looking for the silver-bullet solution to climate change. There is no silver bullet. There are a thousand buckshot, and we've tried to identify all that we could find.

This interview was edited for length and clarity.

Twitter: @ellengilmer Email: egilmer@eenews.net

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