How Even Libertarians Can Tackle The Climate Crisis

When the Environmental Law Institute compiled its more than 1,000-page compendium of pathways to decarbonize the United States, its editors asked the 58 chapter authors to recommend changes in law.
The result is more than 1,500 adjustments to law that could reduce the nation’s collective carbon footprint, many of which call for repealing laws entirely.
“What surprised me a bit reading the chapters, editing the chapters, was the extent to which the chapters said, look, on hydropower, on nuclear power, on distributed renewables, on utility-scale renewables, on carbon capture, law is getting in the way,” said editor John Dernbach, a professor of environmental law at Widener University. “And it turned out that removal of legal barriers is worth identifying as an additional legal tool.”
That should affect the way we think about tackling the climate crisis, Dernbach said last month in a Washington D.C. briefing hosted by the Environmental and Energy Study Institute.
“It’s not just about additional regulation,” he said. “It’s about a lot of other things.”
Dernbach stressed that not all of the 1,500 recommendations in “Legal Pathways To Deep Decarbonization In The United States” need be implemented.
“We see the book as a menu, a cookbook, a playbook. We’re not endorsing every single recommendation and saying that every single one of them has to be adopted, but we’re providing as many choices as possible to policymakers.”
And that means libertarian policymakers have options too. They could begin by eliminating laws and regulations that impede decarbonization.
“You could design—and we’ve talked to people in Washington about this—you could design a libertarian approach to reducing greenhouse gas emissions. I don’t know how far it would get you, but you could begin with that. And you could do a fair bit of work with that. And we could walk you through that if you wanted to.”
The book is full of examples:
• Trip Pollard, author of the Transportation chapter, calls for the elimination of subsidies for driving among other policies that would remove barriers to low-carbon transportation options.
• The three authors of the Freight chapter call for reducing permitting and other barriers to developing cleaner infrastructure.
• Alexandra B. Klass makes a similar point about electric infrastructure in the Transmission, Distribution and Storage chapter.
• Tracy Hester argues that federal and state governments could reduce legal requirements, permitting requirements and environmental reviews for carbon-capture projects without exposing the public or the environment to increased risk.
• Aoife O’Leary argues that the Jones Act (which requires goods shipped between U.S. ports to travel on U.S. ships) may need to be repealed or modified depending on its impact on shipping emissions.
Many of these authors also call for new laws or increased regulation in other areas, and Dernbach’s larger point is not that decarbonization is a libertarian exercise, but that most political ideologies can find native decarbonization policies.
“You can design the Green New Deal through this, put all the legal mechanisms together for a particular version of the Green New Deal,” he said, “or you could build something else. There’s a bunch of different ways you could use the cookbook.”
The formerly libertarian champion for climate action, Jerry Taylor of the Niskanen Center, last year renounced libertarianism—and political ideologies more broadly— as too narrow a path for the climate challenge.
“Libertarians have nothing at all to contribute to the conversation about the science of climate change as libertarians,” Taylor writes. “They could, however, marshal ideological insights to suggest the best means of addressing global warming if it indeed turns out to warrant a policy response (as I believe it does). For libertarians, that could mean a carbon tax, but for other, more hardline libertarians, it could mean that greenhouse gas emitters should be held liable for climate-related damages via common-law legal proceedings.”
And that returns to a point that Dernbach and his co-editor, Columbia law professor Michael B. Gerard, hope to make more broadly: the climate crisis doesn’t need a new legal system. The current one will do.
“The legal tools are already out there” to decarbonize the U.S., Dernbach said. “The laws either already exist or there are laws that could be modified to get to that result.”
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