Climate Change - John Dernbach

Climate change is among the most important sustainable development issues facing humanity. It is not just an environmental issue. It also has profound social, economic, and security dimensions. Dernbach has been active on client change in both litigation and academic writing. He co-authored an amicus brief to the United States Supreme Court on behalf of 18 prominent climate scientists in the landmark climate change case, Massachusetts v. Environmental Protection Agency.

In book chapters and numerous articles, Dernbach discusses climate change from a legal and policy perspective and suggests ways to reduce greenhouse gas emissions that also create jobs, foster the development of new technologies, provide economic opportunities, and improve national security. All of those below can be downloaded by clicking on the title.

Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, 70 Rutgers University Law Review 803 (2018) (with Kenneth T. Kristl & James R. May). In 2017, in the landmark case of Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, the Pennsylvania Supreme Court held that the text of the Environmental Rights Amendment (Article I, Section 27) provides the legal basis for deciding environmental rights claims, not the judicially created test that had been employed for more than four decades. For many lawyers, judges, and citizens, the change is so dramatic that it is as if Section 27 was adopted in 2017, rather than the year it was adopted--1971. This article addresses a variety of issues about the interpretation and application of Section 27 after PEDF, and explains how this case is adding momentum to the growing use of constitutional environmental amendments in other states and countries.
Applying the Pennsylvania Environmental Rights Amendment Meaningfully to Climate Disruption, 8 Michigan Journal of Environmental and Administrative Law 49 (2018) (with Robert B. McKinstry, Jr.). This article argues that a stable climate (a climate that has not been disrupted by anthropogenic emissions of GHGs) should be considered protected by the rights provided by the Pennsylvania Environmental Rights Amendment. It then argues that the Environmental Rights Amendment imposes on Pennsylvania a duty to reduce greenhouse gas emissions to net zero by midcentury, and advocates a cap-and-trade program to achieve that result.
The Dozen Types of Legal Tools in the Deep Decarbonization Toolbox, 39 Energy Law Journal 313 (2018). This article provides a description and analysis of the dozen types of legal tools that are available to reduce U.S. greenhouse gas (GHG) emissions by at least 80% from 1990 levels by 2050. It explains that there are many more types of legal choices available than we may have thought, and that the range of legal tools provides great opportunity for building consensus. One particularly important category, for example, is reduction or removal of legal barriers. It also makes clear that a great many types of lawyers are important in this effort, including not only energy and environmental lawyers, but also finance, corporate, procurement, contracting, real estate, and other types of lawyers.
Lawyering as if Tomorrow Matters, 86 University of Missouri-Kansas City Law Review 759 (2018).. This Article argues that all lawyers, not just environmental lawyers, have a unique and important role to play in protecting life on earth, and suggests that we all need to consider doing more than we have already been doing. It then describes seven different approaches that lawyers can consider to respond constructively to climate change. These suggestions are intended to provoke discussion and reflection about the necessary role of lawyers at an exceptionally important moment in human history.
Sustainable Development in Law Practice: A Lens for Addressing All Legal Problems, 95 Denver Law Review 123 (2017). This article, which is based on interviews with 26 lawyers who practice or have practiced law related to sustainability, provides a first assessment of what this work actually entails. It describes what these lawyers understand sustainability or sustainable development to mean — both as defined and as applied. It explains who their clients are and what they do for them, and provides insight into the dynamics of attorney-client conversations related to sustainability. It describes key personal and professional qualities of these lawyers — how they became interested, and what they like and do not like about doing work related to sustainability. Finally, by exploring what these lawyers see as obstacles to sustainability and where the jobs are in sustainability-related law, it sheds light on the future of sustainability in law practice.
Teaching Applied Sustainability: A Practicum Based on Drafting Ordinances, 4 Texas A&M Journal of Property Law (with Jonathan D. Rosenbloom). This article describes and explains a sustainability law practicum class that is now taught in only two law schools, but which has considerable teaching and practical value. It also explains how this class is consistent with, and furthers, the growing demand for experiential, skills-based legal education employing formative assessment. The class uses a real world setting to provide students with skills they will need to help clients meet their sustainability goals.
Legal Pathways to Deep Decarbonization: Lessons from California and Germany, 82 Brooklyn Law Review 825 (2017). This article describes the approaches being taken toward deep reductions in greenhouse gas emissions in two major developed country jurisdictions — California and Germany — and suggest lessons from that experience that could be useful to the United States.
Making the Paris Agreement Work, Environmental Forum, Sept.-Oct. 2016. This article briefly outlines the key features of the Paris Agreement as well as the daunting challenge of meeting its goals. It suggests six essential elements of an approach to encourage or incentivize parties to greater ambition.
Asking the Right Questions About the Future of Shale Gas, 49 John Marshall Law Review 377 (2016). This Article explains that policy makers and others need to ask instead 1) whether the use of shale gas is consistent with the scale and pace of required greenhouse gas emissions, 2) how much energy we need, and 3) how the benefits of shale gas compare with the costs and benefits of alternatives, especially energy efficiency and conservation.
Sustainable Development and Its Discontents, 4 Transnational Environmental Law 247 (2015) (with Federico Cheever). As sustainable development (or sustainability) has grown in prominence, its critics have become more numerous and more vocal. Three major lines of criticism are that the term is “too boring” to command public attention, “too vague” to provide guidance, and “too late” to address the world’s problems. Critics suggest goals such as abundance, environmental integrity, and resilience. Beginning with the international agreements that shaped the concept of sustainable development, this Article provides a functional and historical analysis of the meaning of sustainable development. It then analyzes and responds to each of these criticisms in turn. While the critics, understood constructively, suggest ways of strengthening this framework, they do not provide a compelling alternative. The challenge for lawyers, law makers, and others is to use and improve this framework to make better decisions.
A Response to the IPCC Fifth Assessment,, (45 Environmental Law Reporter 10027 (2015) (with Sarah J. Adams-Schoen and others). This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion.
Can Shale Gas Help Accelerate the Transition to Sustainability? (Environment, Jan.-Feb. 2015, at 7 (with James R. May). The sudden and unexpected development of shale gas has the potential to accelerate or hinder the transition to sustainability, depending on how it is handled. Sustainable development is a useful evaluative framework for shale gas development. It would have us analyze its environmental, social, economic, and security dimensions at the same time, and look for ways to make all four dimensions mutually reinforcing. Analyzing a broad range of issues, this article asks, and suggests answers to, the question of whether, or how, shale gas production can help accelerate the transition to sustainability.
The Sustainable Relationship: What the United States and the United Kingdom Can Teach Each Other About Climate Change and Sustainable Development at the National Level, (Environmental Forum, May-June 2013, at 30 (with Andrea Ross)). This article describes and compares key U.S. and U.K. laws and policies on sustainable development and climate change, and suggests what each could learn from the other.
Sustainability as a Means of Improving Environmental Justice, (19 Missouri Journal of Environmental and Sustainability Law 1 (2012) (with Patricia E. Salkin & Donald A. Brown). This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice.
Sustaining America, (Environmental Forum, May-June 2012, at 30). This essay summarizes U.S. sustainability efforts over the two decades since the U.N. Conference on Environment and Development (or Earth Summit) in 1992. It also summarizes basic findings and recommendations from Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (Environmental Law Institute 2012).
Next Generation Recycling and Waste Reduction: Building on the Success of Pennsylvania’s 1988 Legislation, (21 Widener Law Journal 285 (2012) (with Widener University School of Law Seminar on Climate Change). This article reviews the effectiveness of Pennsylvania's landmark 1988 recycling legislation, and makes recommendations for improving its effectiveness.
Federal Energy Efficiency and Conservation Laws, (in The Law of Clean Energy: Efficiency and Renewables 25 (Michael Gerrard, ed., American Bar Association, 2011) (with Marianne Tyrrell). This book chapter provides an overview of U.S. law and policy concerning energy efficiency and conservation.
The “Cash for Clunkers” Program: A Sustainability Evaluation, (42 Toledo Law Review 467 (2011) (with Marianne Tyrrell). This article describes and evaluates the effectiveness of the Consumer Assistance to Recycle and Save Act of 2009, also known as the “Cash for Clunkers” legislation, from a sustainability perspective. It also identifies five key lessons for sustainability from this legislation:
Energy Efficiency and Conservation: New Legal Tools and Opportunities, (Natural Resources and Environment, Spring 2011, at 7 (with Robert B. McKinstry, Jr. & Darin Lowder)). Many new and ambitious energy efficiency and conservation laws are being enacted at all levels of government - and with greater financial incentives than provided previously. This article reviews a range of these tools, especially financial legal mechanisms, that could help significantly reduce U.S. energy consumption.
The Essential and Growing Role of Legal Education in Achieving Sustainability, (60 Journal of Legal Education 489 (2011)). This article suggests that law schools need to play a leading role in the national and global effort to achieve sustainability, including the effort to address climate change. It then describes a broad and growing range of sustainability activities - especially in curriculum and scholarship, but also in buildings and operations; outreach and service; student life; institutional mission, policy, and planning; and external stakeholders.
Making the States Full Partners in a National Climate Change Effort: A Necessary Element for Sustainable Economic Development, (40 Environmental Law Reporter 10,539 (2010) (with Robert B. McKinstry, Jr. and Thomas D. Peterson)). This article explains why states and localities need to be full partners in a national climate change effort based on federal legislation or the existing Clean Air Act. It also describes in detail a proposed state climate action planning process that would help make the states full partners.
The Ethical Responsibility to Reduce Energy Consumption, (37 Hofstra Law Review 985 (2009) (with Donald A. Brown)). This article argues that developed countries, including the individuals living in those countries, have an ethical responsibility to reduce energy consumption - through energy efficiency and conservation - as part of the global effort to reduce greenhouse gas emissions.
Achieving Early and Substantial Greenhouse Gas Reductions Under a Post-Kyoto Agreement, 20 Georgetown International Environmental Law Review 573 (2008). This article explains why policy makers should seriously consider substantial early reductions in greenhouse gas emissions as a part of any post-Kyoto framework, and sets out suggested elements of a framework for early action in a post-Kyoto agreement.
Climate Change Law: An Introduction, 29 Energy Law Journal 1 (2008) (with Seema Kakade). This article explains the basic elements of climate change law, with a particular focus on those issues that promise to be important for a considerable time as well as the major factors that are driving the development of this law.
Harnessing Individual Behavior to Address Climate Change: Options for Congress, 26 Virginia Environmental Law Journal 107 (2008). This article attempts to answer a question about the design of national climate change legislation that has not received significant attention: How should Congress engage individuals in the effort to address climate change?
Developing a Comprehensive Approach to Climate Change Policy in the United States: Integrating Levels of Government and Economic Sectors, 26 Virginia Environmental Law Journal 227 (2008) (with Thomas D. Peterson, Robert B. McKinstry, Jr.). This article explains and justifies an approach to federal climate legislation that uses and builds on the Clean Air Act's various tools, including air quality standards, technology-based limitations, and state implementation plans.
Federal Climate Change Legislation as if the States Matter, Natural Resources & Environment, Winter 2008, at 3 (with Robert B. McKinstry, Jr. & Thomas D. Peterson). This article identifies the key state/federal issues that should be addressed in any comprehensive national comprehensive climate change legislation, and also provides recommendations for resolving these issues.
U.S. Policy in Global Climate Change and U.S. Law, 61 (Michael Gerrard, editor., American Bar Association, 2007). This chapter surveys two types of U.S. law and policy relating to climate change—1) laws and policies that are intentionally directed at climate change and 2) those that were adopted before climate change became a prominent issue but which affect, in positive and negative ways, U.S. greenhouse gas emissions.
Stabilizing and Then Reducing U.S. Energy Consumption: Legal and Policy Tools for Efficiency and Conservation, 37 Environmental Law Reporter 10,003 (2007) (with the Widener University Law School Seminar on Energy Efficiency). This article evaluates the evidence from a handful of legal and policy tools for energy efficiency and conservation, and argues that greater use of these and other tools may allow us to stabilize U.S. energy consumption and then reduce it.
Overcoming the Behavioral Impetus for Greater Energy Consumption, 20 Pacific McGeorge Global Business & Development Law Journal 15 (2007). Drawing on the work of social scientists and behavioral researchers, this article concludes that many opportunities exist to influence individual behavior to increase energy efficiency and reduce energy consumption
Toward a Climate Change Strategy for Pennsylvania, 12 Penn State Environmental Law Review 181 (2004). This article explains why Pennsylvania should address climate change and outlines the need for a comprehensive strategy that looks at all economic sectors and all sources of greenhouse gas emissions.
Federal Fossil Fuel Subsidies and Greenhouse Gas Emissions: A Case Study of Increasing Transparency for Fiscal Policy, 26 Annual Review of Energy and Environment 361 (2001) (with Doug Koplow). This paper reviews existing studies of fossil fuel subsidies within the United States, as well as assessments of the potential impact of subsidy reform on greenhouse gas emissions, and argues that subsidies should be subject to the same public disclosure and public review requirements as U.S. environmental laws.
Moving the Climate Debate from Models to Proposed Legislation: Lessons from State Experience, 30 Environmental Law Reporter 10,933 (2000) (with the Widener University Law School Seminar on Global Warming). Using considerable evidence from state laws that reduce greenhouse gas emissions, this article argues that national laws based on these state laws would not only reduce emissions but would also create jobs, reduce the impact of fuel price increases on the poor, improve security, and foster the development of new technologies.