The United States has 4 percent of the world’s population yet produces and consumes more than 20 percent of its energy. Correspondingly, the United States emits more than 20 percent of global greenhouse gases, largely from its fossil fuel economy. The ravages of climate change are intensifying as we experience increasingly potent and more frequent storms and as western states continue to burn. Significantly, the economic, environmental, and health burdens of the nation's current energy system and the consequences of climate change fall disproportionately on low-income communities and communities of color.
The United States should and could be a key player in the global transition from a dirty energy economy to a clean energy future. Unfortunately, although states, local governments, and some private actors are playing important roles, federal leadership, both domestically and internationally, is sorely lacking. With the coming election and the prospect of a more sympathetic administration and Congress, the time is ripe for principled and pragmatic solutions to the climate crisis. With careful crafting, such solutions can grow the U.S. economy and benefit marginalized communities.
This paper, written by 19 energy and environmental law professors, all Member Scholars of the Center for Progressive Reform, describes the need for a transition to clean energy, and offers holistic policy approaches designed not simply to reduce greenhouse gases in a vacuum, but to realize a vision for an inclusive and more just clean economy.
Drawing on the unique expertise of its authors, the paper presents a series of policy recommendations, all of which are based on three core ideas. The first is that good policy requires coordination among three essential variables – energy, the environment, and the economy. There is no fundamental reason why the United States cannot enjoy a clean energy portfolio, a healthy environment, and a robust and fair economy. The second core idea, a corollary of the first, is that the transition must be just. A good transition leaves no one behind – not workers and communities whose livelihoods depended on the fossil fuel sector, not low-income communities, and not communities that have disproportionately experienced negative energy impacts. The third is that, notwithstanding significant public and private climate initiatives around the country, the nation desperately needs federal vision, policies, and resources. Policies predicated on these principles offer the best hope for our individual and collective future, both here in the United States and around the world.
Applying their expertise in energy law, environmental law, environmental justice, administrative law, and Native American law, CPR's co-authors explore the many steps that Congress and the next president should take toward a just, economically sound, and environmentally protective national climate policy, offering dozens of specific recommendations for achieving a just transition to clean energy.
The co-authors first offer a series of recommendations addressing specific sectors critical to a clean transition, including electricity, transportation, and public lands. They then provide cross-cutting recommendations relevant throughout the federal government, including climate justice, governance mechanisms, and, taking a wider view, structural insights that should inform the relationships among federal agencies, the states, and the courts.
● Electricity Policy: Congress should establish a federal clean energy standard, improve the Federal Energy Regulatory Commission’s oversight of federal energy markets, and expand federal authority over electric transmission line siting and the exercise of eminent domain to enable better access to renewable resources. [Read more.]
● Transportation Policy: Congress and a new administration should accelerate electrification of the vehicle fleet by revoking the Trump administration’s efforts to lower greenhouse gas standards and by setting higher efficiency and electric car requirements. Congress should also require new measures to ensure adequate charging and clean electricity infrastructure, and should facilitate measures to reduce driving, all while prioritizing clean transportation investments in frontline and low-income communities. [Read more.]
● Public Lands Policy: To protect public lands from increased risks posed by climate change, Congress and a new administration should ensure that federal agencies avoid or, if necessary, mitigate harms to our public lands, that they exercise their control to phase out development of nonrenewable energy resources, and that they marshal federal resources to enhance climate resiliency, preserve the biodiversity of public lands, and revise national forest planning rules to ensure forest sustainability. [Read more.]
● Climate Justice: Congress should enact just transitions legislation that provides fossil-fuel reliant communities with new and improved economic opportunities. Congress and the administration should also provide access to energy efficiency and renewable resources--as well as support for higher energy costs--to low-income communities; prioritize climate policies that provide the most pollution-reduction co-benefits; and provide federal parameters and support to the low-income and frontline communities least able to cope with impending climate harms. [Read more.]
● Governance Mechanisms: Congress and a new administration should employ a variety of tools to achieve effective governance, including: federally funded research and development needed to lay the groundwork for private investment; a more realistic assessment of the cost of inaction (known as the “social cost of carbon”) to better inform a wide variety of regulatory actions; careful consideration of carbon pricing options; a vision and associated strategies for achieving a just transition in addition to carbon pricing; and well-funded and effective enforcement of all federal climate policies. [Read more.]
● Structural Considerations: Going beyond specific policies, Congress should enhance effective governance by optimizing the relationships among different agencies and levels of government. CPR Member Scholars offer a range of insights on the factors that should guide the allocation of authority between the federal government and the states and among agencies with related missions, recommending a careful balance between federal and state authority and a continued role for the courts. [Read more.]
Energy, the environment, and the economy are all parts of an interrelated whole – they are not separate and distinct areas of concern. Most importantly, the transition to a better and cleaner future must be done justly and democratically. We can no longer afford to indulge the erroneous assumption that our economy must accommodate capital-intensive, large-scale, fossil fuel energy production, distribution, and consumption without accounting for the attendant social costs. Instead, we can enjoy clean energy; we can enjoy decentralized power; we can enjoy clean air, water, and land; and we can grow our economy and protect our citizens, even the most vulnerable. These are not utopian aspirations; these are the demands of social justice, and they can be met by a democratically responsive federal government.
Three principles undergird the analysis and recommendations offered in this paper:
Energy, the environment, and the economy are intrinsic parts of a whole. Virtually all energy comes from natural resources such as coal, oil, natural gas, or such renewable resources as wind, hydroelectric, and solar. In order to generate usable energy, these natural resources must be discovered, extracted or harnessed, processed, distributed, and in the case of non-renewable sources, consumed. Environmental consequences follow each stage of that process. These resources are marshalled by companies and the people they employ, who live in communities that are affected by the employment opportunities and the environmental harms they create. As some resources wax and others wane, people’s fortunes wax and wane with them.
There are always trade-offs between energy, the environment, and the economy. Policies narrowly focused on only one factor – on energy but not its environmental or economic effects; or on the environment, without regard to our need for energy and the economic implications of environmental protection; or on the economy, without regard to our need for clean energy and a clean environment – could cause unnecessary harm. Fossil fuels create energy and current jobs but are destroying our environment. Wind power reduces climate harms and creates new employment opportunities but could cause bird deaths. Energy efficiency reduces the need for energy without harming the environment. With a thoughtful weighing of the tradeoffs across policy silos, we can achieve a just transition that maximizes benefits and reduces potential harms.
Merging energy, the environment, and the economy is not only a matter of economic policy. It is also a matter of social justice.
Throughout the 20th century, the country’s energy and environmental policies were uncoordinated, producing an energy sector that was large-scale and capital-intensive, centralized and national in scope, and dominated by pollution-heavy fossil fuels and nuclear power. Critics like Amory Lovins warned that this paradigm was highly inefficient and threatened nuclear proliferation.
Environmental justice activists – led by Professor Robert Bullard – alerted the country to the social injustice of it all, highlighting the ways that communities of color and low-income communities have borne the disproportionate burden of our fossil fuel economy. They are more likely to live close to power plants, to the refineries that generate oil and gas, to the petrochemical facilities that produce oil-based chemicals used throughout our economy, and to the ports, highways, and railways that generate toxic vehicular pollution.
Our energy and environmental policies, in other words, have had demonstrable racial and economic consequences. A clean energy transition can not only reduce the risks of climate change – which themselves fall disproportionately on the most vulnerable – but should also prioritize the pollution burdens that have persistently affected frontline communities. Policymakers leading the transition should ensure that new energy development avoids perpetuating this trend.
A socially just transition would not only alleviate the disproportionate pollution burdens highlighted by the environmental justice movement; it would also promote economic justice. As an example, rooftop solar is a critical part of the energy transition, but it must be done right. Policies should prioritize installation on buildings in low-income areas – the locations where residents will benefit the most from lower electricity bills.
Another key aspect of the international just transition movement is facilitating a smooth transition for the fossil fuel workers who lose their jobs in the fossil fuel sector. The free market is unlikely to ensure that the individuals, communities, regions, states, and Native Americans who have relied on fossil fuel extraction and processing will seamlessly transition to the new opportunities created by a clean economy. Inclusive planning and transition resources will be necessary to ensure that these workers and their communities have a place in a better future.
Social justice and democracy are linked. The energy democracy movement favors the decentralization of energy production and distribution. In contrast to large central power stations where decisions are made at the top, a decentralized energy service, such as a microgrid, can be locally owned. Local control creates opportunities for more democratic participation and more input from consumers than is possible under our centralized fossil-fuel-based electricity model.
In short, a more decentralized and democratic energy system, one that is more responsive to the needs of the communities it serves, can find common ground with the environmental justice movement’s advocacy for environmental and economic justice. Lovins’ advocacy for decentralized energy and Bullard’s advocacy for social justice laid the foundation for the emerging climate justice, just transition, and energy democracy movements. All of these initiatives are intended to protect the vulnerable from environmental and economic harms while providing access to affordable and democratically controlled energy.
Many cities, states, utilities, and private companies are valiantly pursuing climate action notwithstanding the lack of federal leadership and insufficient resources. The majority of U.S. states have established renewable portfolio standards. Many have also set ambitious greenhouse gas reduction targets, and even, in some cases, integrated social justice strategies. Cities have likewise set significant clean energy and carbon reduction goals and adopted efficiency standards. Indeed, several cities already obtain or generate 100 percent of the electricity consumed within their jurisdiction from green power. Many utilities around the United States have shuttered coal-fired power plants and replaced them with cleaner sources. And some large consumers of electricity – companies like Walmart and Amazon – have adopted clean energy goals and taken meaningful action toward implementing those goals.
Important as these efforts are, they are not comprehensive, and they are not holistic. Many states and cities are taking action – but many are not. Some states are instituting ambitious electric car policies, but these efforts require a national clean electricity grid and adequate charging infrastructure for the climate benefits to fully materialize. New employment opportunities are emerging, but not necessarily in the places where opportunities are disappearing.
Federal leadership – leadership that respects and builds on existing initiatives – is necessary to achieve a coherent and just transition. Recent initiatives have started to shape a path forward. The Green New Deal (GND) championed by Rep. Alexandria Ocasio-Cortez in the House and by Sen. Edward Markey in the Senate encapsulates all the above principles. The GND integrates environmental goals with social and economic reforms designed to simultaneously stem climate change and address the country’s depressed economy, sustain a strong citizenry, and provide meaningful protections for workers and other disadvantaged populations.
Similarly, in June 2020, the House Select Committee on the Climate Crisis put forth an extensive list of policy proposals that integrate energy, environmental, and economic concerns, and that repeatedly emphasize the importance of addressing the needs of the most vulnerable.
Accomplishing the ambitious challenge of a clean energy transition that leaves no one behind requires insightful, creative, carefully crafted policies. In the pages that follow, CPR's co-authors offer recommendations addressing specific sectors critical to a clean transition, including electricity, transportation, and public lands, then go on to offer cross-cutting recommendations relevant throughout the federal government, addressing climate justice, governance mechanisms, and the relationships among federal agencies, the states, and the courts.
In reforming federal policies to modernize the energy sector, it is vital that lawmakers are responsive to issues of fairness and equity. For example, household energy burdens and the environmental harms of electric power generation disproportionately impact low-income people and communities of color. Energy law reform should seek to alleviate these burdens and channel benefits from the clean energy transition to areas that have been disadvantaged. We set forth the following recommendations discussed in more detail below:
Recommendation #1: Congress should demonstrate a national commitment to climate change mitigation and protecting communities from power plant pollution by enacting a federal clean energy standard.
Recommendation #2: To remove the substantial obstacles to state-supported clean energy transition posed by new regional wholesale electricity market rules, particularly in the PJM Regional Transmission Organization, Congress should direct the Federal Energy Regulatory Commission (FERC) to categorically exempt new renewable resources and existing nuclear power plants from these rules.
Recommendation #3: Congress should expand federal authority over the approval of new interstate electric transmission lines to support greater integration of renewable energy into the U.S. electric grid. Congress could combine this expansion of federal authority over transmission lines with greater scrutiny of FERC’s practices with regard to the siting and eminent domain for interstate natural gas pipelines and other fossil fuel infrastructure within FERC’s existing jurisdiction.Read the entire paper
As required by the Clean Air Act, the Environmental Protection Agency (EPA) and National Highway Traffic and Safety Administration (NHTSA) had jointly implemented ambitious standards to reduce carbon emissions from vehicles, primarily by requiring more efficient vehicles and approving California’s alternative standards, which included zero-emission vehicle requirements. But recent final rules issued by the Trump Administration—the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule reversed much of this progress. A new Congress or administration should reinstate the previous progress. The electrification of vehicles, in turn, will require more governmental support for the purchase of electric vehicles and the installation of charging infrastructure. We explore these needed policy tools and the potential roles of the federal government, states, and local governments in implementing these tools, and we set forth the following recommendations, each discussed in more detail below. The top priorities for a more widespread and rapid transition to vehicle electrification and reduction in miles driven should include the following.
Recommendation #1: Congress should direct the Department of Energy (DOE), in concert with auto manufacturers and state and local governments, to plan for the optimal location of additional charging infrastructure on federal and state highways.
Recommendation #2: Through direct budgetary measures and competitive grant programs, Congress should fund the installation of charging infrastructure on federal and state highways and at workplaces.
Recommendation #3: Beyond what is already proposed in the CLEAN Future Act, Congress should direct the DOE to establish a multi-stakeholder committee to write a model state building code for the location and connection of EV charging stations near buildings and in parking lots, a model state code for the rates charged for the use of EV chargers (if any), recommended methods and rate structures for compensating customers for sales of electricity from car batteries to utilities, and a recommendation that states exempt EV chargers from the definition of “public utility.”
Recommendation #4: Congress should enact new legislation to expand the subsidization of electric vehicles. This legislation should include subsidization of the transition away from diesel fuels used in trucks and buses. Through this legislation, Congress should also consider converting the subsidization of electric vehicles from a tax credit to a rebate, eliminating subsidies for natural gas vehicles, and reserving a substantial percentage of rebates and other incentives for low-income consumers.
Recommendation #5: Congress should expand existing funding for public mass transit and land use planning that reduces vehicle miles traveled, particularly in and through frontline communities. As recommended by the Select Committee on the Climate Crisis, Congress should direct the Department of Energy to establish performance measures for Metropolitan Planning Organizations to include metrics such as enhancing urban infill, ensuring that new housing is located closer to existing transportation, and similar metrics.
Recommendation #6: We highlight a theme running through all of the prior recommendations: Congress should direct clean transportation investments and land use planning improvements to low-income and frontline communities.Read the entire paper
Achieving the sustainability goal has become more urgent than ever due to rapidly changing climate and human-driven development patterns. In order to meet the needs of the present generation without compromising the ability of future generations to meet their needs, we propose four categories of legislative reforms to promote ecological, social, and economic sustainability on and through the nation’s public lands.
Recommendation #1: Enact sequential mitigation and net conservation benefit legislation requiring all federal land managers to use sequential mitigation to establish a net conservation benefit goal or, at a minimum, a "no net loss" of wetlands goal.
Recommendation #2: Phase out nonrenewable energy development on federal lands.
Recommendation #3: Create biodiversity resilience funds to promote restoration of biodiversity on federal and non-federal lands.
Recommendationon #4: Legislate portions of the national forest planning rules to ensure sustainability in the face of climate change.Read the entire paper
Federal leadership can have a significant impact on how climate mitigation and adaptation policies affect BIPOC and low-income communities. On the mitigation side, first, the federal government should adopt a robust strategy to ensure that the transition to zero-carbon energy sources protects workers and local economies that have been dependent on fossil fuels. Second, the federal government should adopt policies to address longstanding issues of unequal access to energy and electricity. Third, the federal government should use the energy transition as an opportunity to reduce both carbon and the pollutants undermining public health in frontline communities. With regard to adaptation, the federal government should channel funding and resources directly to frontline and vulnerable communities.
Recommendation #1: Congress and the president should address the negative impacts of the rapid shift to a zero-carbon economy on formerly fossil fuel-dependent communities by enacting Just Transition legislation. The legislation should prioritize BIPOC and low-income communities, and include funding for planning processes, worker and community support, and data collection.
Recommendation #2: Congress and the president should enact legislation that prioritizes distributed clean energy investments in BIPOC and environmental justice communities, lowers the energy burden on BIPOC and low-income communities, and increases opportunities for ownership of clean energy assets in frontline communities.
Recommendation #3: Congress and the president should adopt climate mitigation policies that simultaneously reduce other forms of pollution (co-pollutants) that adversely impact BIPOC and low-income communities.
Recommendation #4: Congress and the president should provide federal support and establish climate adaptation parameters to achieve adaptation justice for BIPOC and low-income communities.Read the entire paper
Recommendation 1: Research and Development. To build technological capacity to achieve decarbonization, robust federal funding for research and development is essential. While the private sector continues research and investment in alternative energy and efficiency technologies, federal support will enable continued innovation in promising options that remain too speculative for private investment.
Recommendation 2: Social Cost of Carbon. On the regulatory side, Congress faces a plethora of choices. A scientifically defensible financial estimate of climate impacts, the “social cost of carbon” is key to integrating potential climate impacts into regulatory decisions across the federal government. The social cost of carbon could also provide a reference point if Congress decides to establish a carbon tax or other pricing mechanism.
Recommendation 3: Carbon Pricing Options. The role of carbon pricing in federal climate legislation is itself a critical question. We present several factors that are critical to the choice between two common carbon pricing mechanisms: a carbon tax, like those seen in recent congressional bills, and cap-and-trade, the form adopted by a number of states.
Recommendation 4: The Limited Role of Carbon Pricing. Although a carbon price has a role to play, Congress should develop a more comprehensive and visionary decarbonization strategy that includes but is not limited to carbon pricing.
Recommendation 5: Strong Enforcement Mechanisms. Climate mitigation strategies will only work if they are effectively implemented and enforced. Congress should ensure that EPA’s enforcement resources and substantive enforcement policies will lead to widespread compliance and real progress on the path to decarbonization.Read the entire paper
Congress has the opportunity to avoid similar mistakes in crafting a new regulatory regime to address the core threats from the climate crisis. By recognizing and differentiating among three dimensions of regulatory authority, and by carefully tailoring allocations of authority to perform different government functions, Congress can adopt regulatory programs that reflect a careful balance of the policy values implicated in climate change governance. Congress should consider not only the tradeoffs of assigning authority to either states or the federal government, but also the tradeoffs of (1) varying the level of centralization by governmental function; (2) configurations that assign overlapping federal and state roles for particular government functions, as well as overlapping roles for various federal agencies; and (3) altering the amount and type of coordination between federal and state authorities (and among federal agencies).
Based on the expanded array of structural choices that these dimensional and functional allocation choices present, we make the following recommendations for legislation to address climate change:
Recommendation 1: Congress should consider the differential risks raised by climate change mitigation, adaptation, and geoengineering in structuring governance.
• For adaptation, the combination of mostly localized harms and benefits suggests (1) a primarily decentralized infrastructure for most governmental functions, (2) limited overlapping authority (with federal primacy) of key functions, such as standard setting to exploit redundancy while minimizing inefficiencies, and (3) inter-jurisdictional coordination to help manage cross-jurisdictional effects.
• For mitigation, the combination of global or local environmental benefits and localized harms apt to result point generally to (1) centralized standard setting, supplemented by state and local authority; (2) overlapping state and federal authority for functions for which safety net advantages are important; and (3) independent authority for functions such as standard setting and enforcement, but coordinated mechanisms for functions such as research funding and information dissemination to promote efficiency.
• For geoengineering, the catastrophic global harms that may result from unilateral deployment by an actor spurred by local environmental or economic benefits generally suggests (1) centralized control of research and deployment, (2) overlapping authority to create a safety net to guard against imprudent deployment, and (3) international coordination to minimize deployment by solitary institutions.
Recommendation 2: The experience in U.S. environmental law over the past fifty years suggests that:
• Combining federal primacy over certain governmental functions (like financing, information dissemination, and standard setting) with state primacy over others (like planning, implementation, and enforcement) helps leverage the advantages of centralized and decentralized authority.
• Overlapping authority is a good fit for functions that risk under-regulation or regulatory capture, such as standard-setting or enforcement, while more distinct authority for functions such as information generation and information dissemination is useful in achieving economies of scale and avoiding wasteful duplication.
• Congress should rely on different types of intergovernmental coordination when it seeks to pool regulator expertise, harmonize regulation, or reduce the risk of a regulatory race to the bottom, but also provide independent authority for functions such as standard setting to promote intergovernmental competition or avoid the risk of regulator groupthink.
Recommendation 3: Congress should restore California’s authority to establish emissions controls on greenhouse gas emissions that are more stringent than those established by EPA, as well as other states’ authority to adopt California’s standards. It should do so by reversing the agency rule preempting California’s authority to set GHG standards and by reversing EPA’s revocation in 2019 of California’s waiver authority or by lightening California’s burden of justifying future waivers, or both. Such action would avoid needlessly sacrificing the advantages of decentralized, overlapping, and independent regulatory authority and preserve a powerful weapon in the fight against climate change and deadly air pollution.
Recommendation 4: Congress should establish a strong federal role in climate mitigation where appropriate, including establishing national greenhouse gas reduction goals, a national carbon pricing system, and mobile source emission control requirements. The federal government should also invest in research and development, as well as provide financial resources to state and local governments for planning and implementation of mitigation and adaptation measures.
Recommendation 5: Congress should establish strong federal parameters shaping state and local action to ensure that state and local governments are meeting their respective responsibilities to contribute to nationwide decarbonization.
Recommendation 6: Within these federal parameters, states should retain a significant role in planning and developing regulatory requirements in the areas of electricity, building standards, transportation, and adaptation actions.
Recommendation 7: Legislation addressing the climate crisis should not immunize the fossil fuel industry from accountability in state tort law. Instead, it should explicitly preserve state common-law suits seeking redress for climate/COVID harms to ensure that state law continues to serve its traditional and vital role of protecting the environment and public health.Read the entire paper
CPR is grateful to the Public Welfare Foundation, the Bauman Foundation, and the Deer Creek Foundation for their generous support of CPR's work.