June 01, 2019

Literary Resources

Reviewed by Madeline June Kass


Legal Pathways to Deep Decarbonization in the United States

Michael B. Gerrard and John C. Dernbach, eds.

ELI Press, 2019

As explained in the introduction of Legal Pathways to Deep Decarbonization in the United States (Legal Pathways), deep decarbonization refers to “aggressive carbon abatement goals” requiring “systemic changes to the energy economy.” With the specific target of reducing U.S. greenhouse gas emissions by at least 80 percent from 1990 levels by 2050, the book offers a comprehensive “legal playbook” of technical and policy pathways to achieve such deep decarbonization. Edited by legal climate experts Michael B. Gerrard and John C. Dernbach and written with the assistance of over 50 contributing authors, the book provides more than a thousand decarbonization options for achieving “significant economic, social, environmental, and national security benefits.”

Gerrard and Dernbach’s hefty 1,120-page legal playbook pulls together an extraordinarily wide array of decarbonization strategies. The book includes chapters covering energy efficiency, conservation, and fuel switching in buildings, industry, and transportation. Another 10 chapters present options for electricity and fuel decarbonization. There are also four chapters detailing carbon capture and negative emissions, four chapters examining non-carbon dioxide climate pollutants (methane, nitrous oxide, fluorinated gases, and black carbon), and another seven chapters on cross-cutting approaches for reducing emissions (carbon pricing, behavioral interventions, clean technology innovation, financing large and small carbon-reducing energy generating projects, alternative materials consumption and waste management, and international trade rules).

By design, each chapter of the book covers its topic “in enough detail to enable readers without a specialized background to understand it” and identifies, describes, and explains “the central legal issues involved in decarbonization and the main legal pathways for successfully addressing these legal issues.” From these many chapters (and a useful index of key recommendations), public and private decision-makers can pick and choose, combine and refine, and employ and deploy various pathways to achieve emission reductions through federal, state, or local law or via private governance. A 160-page summary of Legal Pathways, including its key recommendations, can be found in the aptly titled compendium: Legal Pathways to Deep Decarbonization in the United States: Summary and Key Recommendations (www.eli.org/eli-press-books/legal-pathways-deep-decarbonization-united-states-summary-and-key-recommendations).

Notably, the deep decarbonization options and recommendations for the United States in Legal Pathways derive from an even larger international effort, the Deep Decarbonization Pathways Project (DDPP). As explained in the book, the DDPP is “an international research collaboration that explores how individual countries can reduce their greenhouse gas (GHG) emissions consistent with limiting global warming to 2° Celsius (C) or less” in a manner that deliberately “steer[s] the focus of climate policy away from limited incremental emissions reductions toward the complete transformation of the energy system.” DDPP’s independent research teams study decarbonization in 16 different countries. According to DDPP’s website, “[e]ach team defines its own pathways to a low carbon energy system that still provides all the energy services their society needs, taking into account current infrastructure, natural resources, and stage of socio-economic development.” http://deepdecarbonization.org. The DDPP partners and their country reports are available on DDPP’s website. Id.

In a single, fully loaded and thorough volume, Legal Pathways manages both to dole out scores of complex technical and policy recommendations and present an uncomplicated and hopeful message. The editors’ message asserts and assures us that “deep decarbonization is achievable in the United States using laws that exist or could be enacted” and “[t]hese legal tools can be employed with significant economic, social, environmental, and national security benefits.”

Toward these ends, Gerrard and Dernbach are now organizing an effort to recruit pro bono lawyers across the country to draft the model laws, regulations, and other legal documents that will be needed to implement the book’s recommendations, and to peer review others’ drafts. Anyone interested in participating may contact them directly at michael.gerrard@law.columbia .edu and jcdernbach@widener.edu.

Warrior Lawyers: From Manila to Manhattan, Attorneys for the Earth

Silver Donald Cameron

Paper Tiger Enterprises Ltd., 2016

Often at the end of a semester of teaching environmental law I feel—and I believe other environmental law professors share the feeling—that we are leaving our students with an overwhelming sense of despair about the future. Environmental law can seem depressing, especially these days. From massive species extinctions and destructive resource extraction practices, to persistent and pervasive pollution poisoning our water and contaminating our air and land, to the imminent specter of catastrophic global climate change, the future can look rather bleak. Warrior Lawyers: From Manila to Manhattan, Attorneys for the Earth (Warrior Lawyers) supplies a partial antidote by offering readers environmental attorney role models, legal career pathways for making a difference, and hope for the planet’s future.

Warrior Lawyers presents interviews with 17 inspiring environmental advocates from around the globe, “spiritual warriors,” who use the law to protect the earth. According to author Silver Donald Cameron, a spiritual warrior is “a compassionate person with a brave mind and a powerful sense of ethics, a person focused not on individual salvation, but on alleviating the suffering of other beings, and helping them to find wisdom and liberation.” Cameron explains:

For such a person, I suspect, environmentalism becomes a spiritual practice, a form of worship. In Aboriginal societies, indeed, the responsibility of protecting the homeland and of stewarding all life within it belongs specifically to the warriors—and it is a sacred obligation. As Mi’kmaw warrior Sakej Ward writes, the warrior protects “life in all forms, including animals, birds, plants, fish, and insects; as well as the life of the lands, mountains, rivers, and skies.” The warrior serves the harmony and balance of nature, and guards the interests of succeeding generations by upholding natural law.

And the warrior who is also a lawyer comes armed with what the formidable Tony Oposa calls “the sword of reason, the fire of passion, and the will, the force, and the power of the law.”

Cameron’s spiritual warriors hail from near and far and work to protect the earth in strikingly different ways. There are interviews with environmental defenders working in Canada, the United States, South Africa, Australia, Europe, Ecuador, Argentina, and the Philippines. These defenders represent and protect local communities, indigenous communities, current and future generations of humans (including other environmental defenders), and the land and its nonhuman inhabitants. Some work through traditional environmental nongovernmental organizations, some adopt entrepreneurial models, and some reject the legal status quo entirely.

Cameron’s spiritual warriors vigorously apply, push the bounds of, and reinvent existing law to take on problems of deforestation, fracking, waste dumping, contamination of waters and watersheds, and climate change. Many press for adoption of new laws and novel theories of law to move us toward a healthier, more sustainable environment for all.

With respect to the first approach, an interview with Daniel Sallaberry chronicles his efforts to take Argentina’s existing constitutional right to a healthy environment from promise to reality. Argentina’s constitution
guarantees citizens the right to

enjoy a healthy, stable environment able to support human development and productive activities that satisfy current needs and the needs of future generations, [and] at the same time incorporates the obligation to conserve this environment. It incorporates the rights to bring class actions, and it establishes in subsequent provisions the legal procedures for defending those rights.

The interview recounts how Sallaberry organized local residents, pulled together a team of lawyers, and sued to actualize the people’s right to a healthy environment to address massive contamination of the Riachuelo River. Although the case appears to be ongoing, and a vigorous cleanup has now gone on for more than a decade, we learn that in 2008, after four years of hearings, the Supreme Court handed down a landmark decision, not just for Argentina but for the world. In a judgment called “sweeping and poetic,” the court ruled that government and industry had indeed infringed the residents’ right to a healthy environment, and were obliged to repair the damage.

In contrast, the interview of Marjan Minnesma, founder and director of the Urgenda Foundation in Amsterdam, illustrates a distinctly entrepreneurial path forward. Although Urgenda (a mix of “urgent” and “agenda”) is known for its breakthrough climate case (ordering the Netherlands to reduce emissions by 25 percent by 2020), much of this interview focuses on Minnesma’s other pursuits, including a solar panel collective buying project to make European homes “energy-positive,” a project scaling up electric vehicles and building solar panel car ports, and efforts to apply a “business”-oriented (but not business as usual) mindset to her nonprofit foundation. Minnesma replaces the tired imagery of environmentalism as austerity and burdensome regulation with a fresh alternative vision:

I think that’s very important, that people start to see that the new economy, the new way of living is not something that you have five sweaters and eat a carrot in a corner. It’s about a new economy and it’s fun. It’s with young people, it’s hip. We should leave the idea that “it’s only less, and it’s difficult,” and that we should move to “it’s new and it’s different.” It’s not necessarily more expensive. All these ideas that people have in their heads we should leave behind. There’s a new economy and it’s fun and it’s about finding new ways to organize yourself without all the waste and without putting CO2 in the air. But it’s still a way of earning money, and it’s not something that only costs money.

More radically, many of Cameron’s lawyer warriors seek to fundamentally reinvent environmental law. For example, in an interview with international lawyer Polly Higgins (who recently died, at just 50), readers learn of efforts to establish a new international crime—a crime of ecocide. Higgins defines “ecocide in law” as “extensive damage or destruction to, or loss of ecosystems of, a given territory.” Human-caused ecocide, she notes is “largely corporate ecocide,” mass damage and destruction by a particular industry’s activities because of top corporate leadership decision-making. Her interview reveals that she was working to make her proposed “law of ecocide” part of the Rome Statute. The Rome Statute currently codifies international crimes against peace, such as genocide, war crimes, and crimes against humanity. Higgins’ team continues working to amend the Rome Statute to add the crime of ecocide to establish “a legal duty of care to put the health and well-being of people and planet first” and allow violators to be brought before the International Criminal Court in The Hague.

If you are an academic looking for inspiring law stories for your students, an environmental practitioner curious about causes to support or options for alternative practice areas, or a lawyer perturbed by the constant denigration of our profession, this is a book for you. You may also want to visit www.greenrights.com, the multimedia project from which this book derives, and which includes additional interviews, a documentary, a TV special, and more.

Energy Justice: US and International Perspectives

Raya Salter, Carmen G. Gonzalez, and Elizabeth Ann Kronk Warner, eds.

Edward Elgar Publishing, 2018

Energy Justice: US and International Perspectives (Energy Justice) examines three fundamental questions: (1) How do we “build principles of equity into the clean energy and related infrastructure investments that must be made to both mitigate climate change and adapt to it”? (2) How do we “ensure energy access and energy security for the world’s citizens”? and (3) How do we acknowledge and correct “the sins of past energy infrastructure decisions while making ones that will be just for future generations”? In examining these questions, the book considers energy justice from the perspectives of international law, U.S. law, and foreign domestic law and at the intersections of environmental justice, human rights, climate justice, and indigenous rights.

The editors raise a fourth, overarching question: Why focus on energy justice? Their answer, to inform our path forward:

The concept of energy justice refines and expands our legal understanding of how we plan for, invest in, and regulate energy. A just global energy system is one that is safe, reliable, fair, affordable, and also sustainable for current and future generations and the natural world. Importantly, energy justice also necessitates an energy path forward that is restorative, or minimizes and reverses the cumulative impacts of energy systems at local, regional, and global levels.

As noted by contributor Professor Robert D. Bullard (also known as the “father of environmental justice”), the importance of energy justice also flows in significant part from its interconnection with “the number one problem of our time,” the challenge of climate change. According to Bullard, the disproportionality of climate change impacts “makes it a serious social justice and human rights issue” and, “energy, specifically the use of fossil fuels, is what has brought us to the brink of climate catastrophe.” Bullard warns that “cleaning up our use of energy” represents “an urgent justice challenge,” and advises we must “transition away from fossil fuels in a just way.” The editors assert that it is “in this context of climate change and historic energy infrastructure investment that energy justice, broadly, calls for a moral examination of energy systems from an energy law perspective.”

Energy Justice ambitiously takes on both challenges––a moral examination of energy systems from a law perspective and the advancement of a “just” transition––by assembling writings elucidating and developing the theoretical underpinnings of energy justice and offering concrete examples of energy justice in practice. The book’s essays analyze and critique fairness and equity in the context of carbon reduction, biofuels, energy access, and energy distribution; recount lessons learned and spotlight trailblazers in the energy justice arena; and draw attention to a new concept, that of “energy democracy.” Described as both “a novel concept and emergent social movement,” energy democracy calls for “integrations of policies linking social justice and economic equity with renewable energy transitions.” Matthew J. Burke & Jennie C. Stephens, Energy Democracy: Goals and Policy Instruments for Sociotechnical Transitions, 33 Energy Res. & Soc. Sci. 35 (2017). Energy Justice takes on the worthy missions of demonstrating that “energy law becomes energy justice when scholars, policy-makers, and activists apply to energy the justice frameworks developed by communities in struggle” and encouraging “further engagement with the emerging concept of energy democracy.” In sum, the book is a significant resource for energy and environmental law practitioners, policy-makers, teachers, and students.


Reviewed by Madeline June Kass

Professor Kass is a Fulbright Scholar at the College of Europe in Brugge, Belgium; Visiting Scholar at the Seattle University School of Law in Seattle, Washington; Professor Emeritus at Thomas Jefferson School of Law in San Diego, California; and a member of the editorial board of Natural Resources & Environment. She may be reached at mkass@tjsl.edu.