Expert Report of Professor James L. Sweeney

Submitted August 13, 2018 

Kelsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh M., 

through his Guardian Tamara Roske-Martinez; et al., 

Plaintiffs,

v. 

The United States of America; Donald Trump, 

in his official capacity as President of the United States; et al.,

Defendants.

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

(Case No.: 6:15-cv-01517-TC)

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Contents

I. Qualifications ...................................................................................................................... 1

II. Background and Assignment .............................................................................................. 3

III. Summary of Opinions ......................................................................................................... 6

IV. Climate Change Is a Real, Global Problem ........................................................................ 9

A. Global Climate Change Resulting from Greenhouse Gas Emissions ..................... 9

B. The U.S. Alone Cannot Ensure That Atmospheric CO2 Is No More Concentrated 

than 350 ppm by 2100....................................................................................................... 12

V. Energy Policy in the U.S. Requires Trade-Offs among Economic, Security, and 

Environmental Objectives ................................................................................................. 14

A. The Environment .................................................................................................. 15

B. Domestic and International Security ..................................................................... 16

C. The Economy ........................................................................................................ 17

D. Energy Policy Involves Trade-Offs among the Three Goals ................................ 18

VI. The U.S. Economy Has Decarbonized 66% since 1973 ................................................... 22

VII. Federal Programs and Policies Have Contributed Substantially to the Decarbonization of 

the U.S. Economy ............................................................................................................. 29

A. Affirmative Policy Steps Encouraging Energy Efficiency ................................... 29

B. Affirmative Policy Steps Encouraging Low Carbon Energy Sources .................. 37

C. CO2 from Fossil Fuel Production .......................................................................... 43

D. Participation in International Climate Change Initiatives ..................................... 45

E. The Federal Government Has Adopted Complex Energy Policy Strategies to 

Address Multiple Policy Goals ......................................................................................... 47

VIII. Many Policy Options Suggested in the Complaint Have Been Implemented .................. 49

IX. Policy Initiatives Demanded by Plaintiffs’ Experts Have Been Considered, Debated, and 

Rejected by Congress or Federal Administrations............................................................ 51

X. There Is an Important Economic Distinction between the Federal Government’s Direct 

Emissions and the Federal Government’s Role and Potential Role as Regulator of ThirdParty Emissions ................................................................................................................. 55

XI. Plaintiffs and Their Experts Fail to Establish that the Acts of the Federal Government 

Caused Their Alleged Injuries .......................................................................................... 59

A. Plaintiffs and Their Experts Fail to Establish Causation ...................................... 61

B. Plaintiffs’ Experts Fail to Identify the Incremental Impact of the Conduct at Issue 

on Cumulative CO2 Emissions and CO2 Concentration ................................................... 62

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1. Defendants’ Direct Consumption of Fossil Fuels ..................................... 63

2. Defendants’ Affirmative Policy Acts ........................................................ 64

3. Defendants’ Alleged Failure to Develop Policies to Mitigate GHG 

Emissions by Entities Other Than the Federal Government. ................................ 66

C. Plaintiffs Fail to Establish a Causal Link Between Their Alleged Injuries and 

Climate Change Effects Caused by the Conduct at Issue ................................................. 69

XII. Plaintiffs’ Experts’ Proposed Transformations of the U.S. Energy System Are Not 

Technically or Economically Feasible .............................................................................. 70

A. Several Examples Demonstrate the Technical and Economic Infeasibility of 

Converting Energy End Use to All-Electric or All-Hydrogen Systems ........................... 73

1. Transportation: Automobiles ................................................................... 74

2. Transportation: Aircraft ........................................................................... 78

3. Industrial Energy Use ............................................................................... 81

B. Plaintiffs’ Experts Understate Costs of their Proposed Energy Systems .............. 84

1. Plaintiffs’ Experts’ Cost Estimates Are Highly Uncertain ....................... 84

2. Plaintiffs’ Experts Cost Estimates Are Incomplete and Understate the Full 

Economic Impact of Decarbonization .................................................................. 86

3. Professor Jacobson Understates the Cost of Electricity Under His 

Proposed Energy System ...................................................................................... 87

C. Plaintiffs’ Experts’ Proposed Energy Systems Would Require Regulatory 

Intervention on a Large Scale ........................................................................................... 89

D. Plaintiffs’ Experts’ Proposed Energy Systems Deviate from Consensus Views 

Regarding Decarbonization .............................................................................................. 93

E. Addressing the Important Problem of Global Climate Change Requires Realistic 

Methods........................................................................................................................... 101

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List of Figures

Figure 1. U.S. Greenhouse Gas Emissions by Gas ...................................................................... 11

Figure 2. Annual CO2 Emissions from Energy ............................................................................ 12

Figure 3. The Energy Policy Triangle .......................................................................................... 14

Figure 4. Factors Leading to Reduced Carbon Intensity of U.S. Economy ................................. 24

Figure 5. Factors in the Kaya Identity by Time Interval .............................................................. 25

Figure 6. Components of Energy System Decarbonization ......................................................... 28

Figure 7. New U.S. Electricity Generating Capacity Additions .................................................. 40

Figure 8. Sources of Greenhouse Gas Emissions in the U.S. ...................................................... 56

Figure 9. Global Fossil Fuel Market Response to Removal of U.S. Subsidies ........................... 66

List of Tables

Table 1. Residential National Appliance Standards .................................................................... 31

Table 2. Commercial and Industrial National Appliance Standards ............................................ 32

Table 3. Lighting National Appliance Standards ......................................................................... 34

Table 4. Selected Federal Efficiency Standards and Tax Credits ................................................ 37

Table 5. Review of Decarbonization Studies Cited in Jacobson Report Exhibit D ..................... 98

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I. Qualifications

1. I, James L. Sweeney, am an economist at Stanford University. I have focused my 

professional activities on economic policy and analysis, particularly in energy, natural resources, 

and the environment, and am currently concentrating on energy efficiency. 

2. At Stanford, I am a professor of management science and engineering. In addition, I am 

a senior fellow of the Hoover Institution, the Precourt Institute for Energy, and the Stanford 

Institute for Economic Policy Research. 

3. Also at Stanford, I have served as chairman of the Department of Engineering-Economic 

Systems and as chairman of the Department of Engineering-Economic Systems and Operations 

Research. I served for eight years as a member of the Executive Committee of the Stanford 

School of Engineering. I have also served as the Director of the Energy Modeling Forum 

(“EMF”), the Chairman of the Institute for Energy Studies, and the Director of the Center for 

Economic Policy Research (now named the Stanford Institute for Economic Policy Research). I 

was founder and until recently, the director of the Precourt Energy Efficiency Center. 

4. I have taught courses at Stanford on “Economics of Natural Resources,” “Energy and 

Environmental Policy Analysis,” “Economic Analysis,” “Engineering Economics,” and “Policy 

and Economics Research Roundtable.” 

5. Outside of Stanford, I have served on the editorial boards of The Energy Journal and 

Resource and Energy Economics and have served as co-editor of Resource and Energy 

Economics. In the early 1970s, I served as Director of the Office of Energy Systems Modeling 

and Forecasting of the United States (“U.S.”) Federal Energy Administration. In that role I was 

responsible for the development and application of the energy supply and demand models the 

federal government used to forecast future energy conditions and was extensively involved in the 

analysis underlying energy policy making in the 1974–1976 period. 

6. I am also a Senior Fellow of the U.S. Association for Energy Economics (“USAEE”) and 

have received the Adelman-Frankel Award from the USAEE for unique contributions to energy 

economics. I am a founding member of the International Association for Energy Economics 

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(“IAEE”) and have received the 2008 award from the IAEE for Outstanding Contributions to the 

Profession of Energy Economics and to its literature. I am a senior fellow and chairman of the 

Council of the California Council on Science and Technology, and a member of the External 

Advisory Council of the National Renewable Energy Laboratory. I was founding chair of the 

Petroleum Market Advisory Committee, advising the California Energy Commission. 

7. I periodically give talks in the U.S. and other countries (e.g., China, Singapore, South 

Korea, Japan, New Zealand, Australia, Turkey, U.K., and Norway) on energy efficiency and its 

role in reducing greenhouse gas (“GHG”) emissions and global climate change. For the last 10 

years I have been one of the three co-conveners of the annual international conference 

“Behavior, Energy, and Climate Change.” I annually convene the Silicon Valley Energy Summit 

at Stanford, which aims at making Silicon Valley organizations and communities more 

sustainable, clean, efficient, and productive. For the last 20 plus years, I have been an annual 

participant at and contributor to the Snowmass Workshop on Climate Change Impacts and 

Integrated Assessment, which integrates scientific knowledge of the numerous impacts of global 

climate change.

8. I have been a member of numerous committees and boards of the National Research 

Council, including the Committee on Benefits of Department of Energy (“DOE”) R&D in 

Energy Efficiency and Fossil Energy, the Committee on Effectiveness and Impact of Corporate 

Average Fuel Economy (“CAFE”) Standards, the Committee on Alternatives and Strategies for 

Future Hydrogen Production and Use, the Committee on America’s Energy Future, the Board on 

Energy and Environmental Systems, and the Board on Environmental Change and Society. 

9. I was co-chair of the transition team task force that developed the energy policy 

framework for Governor Schwarzenegger’s first administration, and I served as a member of 

Governor Schwarzenegger’s Council of Economic Advisors. I was also a member of the 

Economics and Allocation Advisory Council of the California Air Resources Board, providing 

recommendations to the State of California regarding implementation of the cap-and-trade 

system for greenhouse gases for the State. 

10. I periodically serve as an advisor to the California government, the Natural Resources 

Defense Council (“NRDC”), several clean energy startups, and other energy companies, in 

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addition to the federal government. I have served as an expert witness in litigations in the U.S.

and in New Zealand, and I have testified in state and federal courts. I have provided expert 

testimony in cases involving royalties, utility regulation, contract disputes, securities, taxation, 

and antitrust issues.

11. My articles have appeared in numerous books and journals, including: Econometrica, 

Journal of Economic Theory, Journal of Urban Economics, Management Science, Resources and 

Energy, The Bridge, The Energy Journal, and Proceedings of the National Academy of Sciences. 

I have authored or edited seven books, in addition to the five National Academy book-length 

studies of which I was a co-author. One of these books, The California Electricity Crisis, 

published in July 2002, is an analytical history of the economic and policy issues associated with 

California’s electricity restructuring and the subsequent crisis. My most recent book, Energy 

Efficiency: Building a Clean, Secure Economy, was published by Hoover Institution Press in 

2016; the Chinese translation was published in 2017. 

12. I hold a B.S. degree from the Massachusetts Institute of Technology in Electrical 

Engineering and a Ph.D. from Stanford University in Engineering-Economic Systems. A copy 

of my curriculum vitae is attached as Appendix A. A list of my testimony from the last four 

years is attached as Appendix B.

II. Background and Assignment

13. Plaintiffs in this matter state that global climate change is an important problem that has 

led and will lead to impacts that will be harmful to the well-being of the U.S. population, 1 and 

that fossil fuel combustion is an important contributor to climate change. 2

14. Plaintiffs allege that the Defendants 3—various U.S. government agencies and the public 

officials managing these offices—have endangered Plaintiffs’ health and welfare and have 

 

1 First Amended Complaint for Declaratory and Injunctive Relief, Kelsey Cascadia Rose Juliana et al., Plaintiffs, v. 

The United States of America et al., Defendants, 9/10/2015 (“Complaint”), ¶1. 2 Complaint, ¶202. 3 Defendants include the United States of America, the President of the United States, the Office of the President of 

the United States, Department of Energy, Department of the Interior (“DOI”), Department of Transportation, 

Department of Agriculture (“USDA”), Department of Commerce, Department of Defense (“DOD”), Department of 

State, and United States Environmental Protection Agency (“EPA”). See Complaint, ¶¶98–130.

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violated Plaintiffs’ rights under the Fifth and Ninth Amendments of the U.S. Constitution 

through (i) affirmative regulatory acts, including subsidies, tax policies, permits for fossil fuel 

extraction from public lands, and other acts that increase fossil fuel consumption and cause GHG 

emissions; 4 (ii) inaction and failure to develop policies to eliminate the use of fossil fuels and 

mitigate GHG emissions; 5 and (iii) GHG emissions arising from the government’s direct 

consumption of fossil fuels (collectively, “the conduct at issue”). 6

15. Further, Plaintiffs allege that Defendants have “acted with deliberate indifference to the 

peril they knowingly created.” 7 Plaintiffs allege that Defendants have known since at least 1990 

that fossil fuels are the primary cause of climate change, and that climate change poses 

“unusually dangerous risks” and “imminent dangers,” yet have “ignored [the advice of] experts” 

and “continued their policies and practices of allowing the exploitation of fossil fuels.” 8

16. Plaintiffs have submitted the expert report of Professor Joseph E. Stiglitz, who claims to 

“analyze from an economic perspective how climate change will harm the [Plaintiffs] if 

Defendants continue to pursue policies that perpetuate a fossil-fuel-based energy system.” 9 

Professor Stiglitz claims that “moving the U.S. economy away from fossil fuels is both feasible 

and beneficial, especially over the next 30 years.” He suggests that the U.S. could “facilitate this 

transition with standard economic tools for dealing with externalities, for example a tax or levy 

on carbon (a price on the externality) and the elimination of subsidies on fossil-fuel production.” 

 

4 Complaint, ¶280. See also Complaint, ¶110 (“DOI, through the Bureau of Land Management (‘BLM’), leases 

minerals and manages oil and gas development activities on over 570 million acres of federal lands, as well as on 

private lands where the federal government retained mineral rights.”); Complaint, ¶117 (“USDA, through the U.S. 

Forest Service, authorizes 25% of U.S. coal production.”); Complaint, ¶164 (“In 2013, 25% of all fossil fuels 

extracted in the U.S. originated on federal public lands.”); Complaint, ¶172 (“The United States subsidizes the fossil 

fuel industry by undervaluing royalty rates for federal public leasing, as well as through royalty relief resulting in the 

loss of billions of dollars of foregone revenue.”); Complaint, ¶173 (“Through eleven federal fossil fuel production 

tax provisions, the United States incurs approximately $4.7 billion in annual revenue costs.”); Complaint, ¶174 

(“The United States provides approximately $5.1 billion per year in tax provision subsidies to support fossil-fuel 

exploration.”); Complaint, ¶186 (“All U.S. petroleum refineries are permitted and regulated by EPA.”); Complaint, 

¶190 (“the United States subsidized the purchase, and thus increased demand for, vehicles weighing more than 

6,000 pounds (‘SUVs’).”). 5 Complaint, ¶¶153. 6 Complaint, ¶121 (“DOD is our nation’s largest employer and is responsible for significant carbon pollution from 

both its vehicle fleet, and its 500 bases of military infrastructure, including 300,000 buildings totaling 2.2 billion

square feet.”).

7 Complaint, ¶¶8, 286, 303–305. 8 Complaint, ¶¶1–5, 286, 303–305. 9 Expert Report of Joseph E. Stiglitz, Ph.D., April 13, 2018 (“Stiglitz Report”), ¶18. 

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He also recommends “revising current government discounting practices.” Professor Stiglitz 

suggests that costs for some actions to address climate change could be negative. 10

17. Plaintiffs have also submitted expert reports from Professor Mark Z. Jacobson and 

Professor James H. Williams as evidence that the U.S. can decarbonize its economy. 11

18. Professor Jacobson concludes that by 2050 the U.S. can completely eliminate the use of 

fossil fuels and reduce carbon emissions to zero by shifting to a proposed energy system based 

on (i) electricity generated solely from wind, water, solar power (“WWS power”); (ii) advanced 

technologies for the storage of electric and solar energy; and (iii) hydrogen-based energy. 12 

Professor Jacobson further asserts that barriers to the adoption of such a system “are neither 

technical nor economic,” and that the unit cost of electricity under his proposed system would be 

lower than under the current generation infrastructure. 13 

19. Professor Williams concludes that “it is technically feasible to develop and implement a 

plan to achieve an 80% greenhouse gas reduction below 1990 levels by 2050 in the United 

States,” 14 and that a reduction of 96% relative to current levels “is technologically feasible given 

current and emerging technologies,” but “will likely have a higher unit cost” to go beyond the 

80% reduction. 15 He forecasts that the 80% reduction from 1990 levels will cost between -0.2% 

and +1.8% of 2050 GDP. 16

20. I have been asked by counsel for Defendants in this matter to address Plaintiffs’ 

assertions regarding U.S. energy policy, assess the theory of harm articulated by Plaintiffs, and 

evaluate the energy systems proposed by Professor Jacobson and Professor Williams, and to 

address what would be some implications of granting Plaintiffs’ demands. 

21. I am being compensated for my work on this matter at my standard billing rate of $800 

per hour. Cornerstone Research has assisted me in the preparation of this report; their staff have 

 

10 Stiglitz Report, ¶19. 11 Expert Report of Mark Jacobson, Ph.D., April 6, 2018 (“Jacobson Report”); Expert Report of James H. Williams, 

Ph.D., April 13, 2018 (“Williams Report”). Note that Professor Jacobson also submitted an earlier report in July 

2017. 12 Jacobson Report, p. 2. 13 Jacobson Report, pp. 4, 11. 14 Williams Report, p. 3. 15 Williams Report, p. 12. 16 Williams Report, p. 3.

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worked under my direction. I receive compensation from Cornerstone Research based on its 

collected staff billings for its support of me in this matter. Neither my compensation in this 

matter nor my compensation from Cornerstone Research is in any way contingent or based on 

the content of my opinion or the outcome of this or any other matter. A list of documents that I 

have relied upon in forming my opinions can be found as Appendix C. 

III. Summary of Opinions

22. I offer the Court data, observations, perspectives, and opinions that address certain 

energy/environmental policy points of Plaintiffs’ assertions in this case. 

23. By way of background, I firmly believe that global climate change resulting from GHG

emissions is real. 17 As I have acknowledged in my publications, a large body of scientific 

evidence has established that global temperatures are rising and will continue to rise in the 

future; that increasing atmospheric concentrations of GHGs, including but not limited to CO2, 

are the primary cause of rising global temperatures; and that human activity is the primary cause 

of rising GHG levels. 

24. Climate change is a global problem. Data from the U.S. Energy Information 

Administration (“EIA”) shows that the U.S. today accounts for roughly 16% of global energy 

related CO2 emissions 18—hence, unilateral U.S. action cannot possibly stabilize atmospheric 

CO2 concentration levels, much less reduce concentrations to the level that Plaintiffs demand. I 

discuss this in greater detail in Section IV. 

25. U.S. energy policy and environmental policy must balance three fundamental objectives 

that often conflict: national security, economic welfare, and environmental welfare. Each of 

these fundamental objectives includes multiple components. Plaintiffs, however, adopt a onedimensional view of energy policy in which policy is evaluated solely through the lens of a 

subset of concerns relating to environmental welfare—climate change and GHG emissions—and 

 

17 I understand that Defendants have stipulated the existence of climate change, that climate change is 

anthropogenic, and that these questions are not at issue in this litigation. Federal Defendants’ Answer to First 

Amended Complaint for Declaratory and Injunctive Relief, Kelsey Cascadia Rose Juliana et al., Plaintiffs, v. United 

States et al., Defendants, January 13, 2017 (“Answer”), ¶1. 18 U.S. Energy Information Administration, International Energy Statistics.

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not as trade-offs between concerns of national security, economic welfare, and environmental 

welfare. I discuss this in greater detail in Section V.

26. The U.S. economy has decarbonized dramatically since 1973, and federal programs and 

policies have contributed substantially to decarbonization, notwithstanding Plaintiffs’ allegations 

that the federal governmental has ignored scientific advice and has done little or nothing to 

reduce GHG emissions. The energy-related carbon intensity of the U.S. economy—the energyrelated CO2 released per dollar of real (inflation-adjusted) GDP—has decreased by 66% since 

the energy crisis in 1973. However, the U.S. economy has continued to grow, at different rates 

over time. The combination of time-varying economic growth, with a simultaneous time-varying 

decarbonization of the economy, has led to some decades in which CO2 emissions grew and 

other decades in which emissions declined. I discuss this in greater detail in Section VI.

27. The reduction in the energy-related carbon intensity of the U.S. economy is due in large 

part to a broad portfolio of federal governmental policies. These policies, which I discuss in 

Section VII, include energy efficiency appliance standards, fuel efficiency standards for cars and 

trucks, research and development (“R&D”) sponsorship, tax incentives for energy efficient 

buildings and technologies, support for zero-carbon energy sources such as hydropower, solar, 

and wind, and participation in international agreements to mitigate GHG emissions and the 

impact of climate change. 

28. Many policy options suggested in the Complaint and by Plaintiffs’ experts have been 

implemented, including initiatives proposed in the 1990 Environmental Protection Agency study. 

Others, such as a carbon tax, have been considered, debated, and rejected by Congress or the 

executive of the federal government. These policy outcomes are examples of the political 

branches of the federal government balancing the considerations of energy policy—either other 

factors such as economic welfare or national security have received greater weight than 

environmental objectives, or federal policy makers have favored other policy instruments, such 

as direct regulation of energy efficiency. I discuss this in greater detail in Sections VIII and IX. 

29. There is an important economic distinction between the direct emissions of the federal 

government and the federal government’s role in regulating the emissions of third parties such as 

companies, individuals, and state and local governments. The federal government directly 

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controls its own emissions, but does not control the conduct of third parties. The vast majority of 

GHG emissions in the U.S. come from the activities of private sector firms, individual residents 

of the U.S., and state and local governments. Thus, the federal government must rely on either 

command-and-control mandates or a system of regulations that create incentives to induce third

parties to engage in the conduct it desires. Before instituting incentives to encourage or 

discourage conduct, it is important to consider the costs and benefits of the intervention. I 

discuss this in Section X.

30. Turning to Plaintiffs’ theory of harm, I conclude that Plaintiffs fail to establish a causal 

link from the conduct at issue to the injuries they allege. Plaintiffs attribute their injuries to the 

conduct at issue, but ignore the fact that at least 96% of cumulative global CO2 emissions since 

1990—the root cause of rising atmospheric CO2 concentrations and climate change effects that 

purportedly lead to Plaintiffs’ alleged injuries—are associated with fossil fuel consumption 

unrelated to the conduct at issue. 19 In particular, I conclude that 

a. countries other than the United States accounted for 79% of energy-related CO2

emissions from 1990 to 2015; 

b. a large majority of the remaining 21% of energy-related CO2 emissions during 

this period were not caused by the conduct at issue; 

c. CO2 emissions caused directly by the government through its consumption of 

fossil fuels comprise approximately 0.25% of global CO2 emissions; and 

d. I estimate that CO2 emissions caused by all of the conduct at issue, including 

emissions allegedly caused directly by Defendants, emissions allegedly caused by 

Defendants’ affirmative policy acts, and emissions allegedly caused by 

Defendants’ alleged failure to act, comprise no more than 4% of global emissions. 

Note that this figure includes emissions from the actions of entities in the U.S. 

other than the federal government, including private sector firms, individual 

residents of the U.S., and state and local governments. 

 

19 For purposes of rebuttal, I assume arguendo that the conduct at issue began as of 1990.

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31. Further, I conclude that Plaintiffs fail to establish a causal link between their alleged 

injuries and climate change effects allegedly caused by the conduct at issue. Factors other than 

the conduct at issue are the primary causes of the climate change effects that the Plaintiffs allege 

to have caused injuries. I discuss this in greater detail in Section XI.

32. Finally, the low-carbon energy systems proposed by Plaintiffs’ experts, Professor 

Jacobson and Professor Williams, are not technically feasible, and assume the existence of 

technologies that are in development and are decades from commercial acceptance. Neither 

Professor Jacobson nor Professor Williams provides a credible estimate of the full costs of their 

respective proposals. They both focus on changes in the cost of energy supply, but fail to 

explain the substantially larger costs that would arise from the macroeconomic impact of their

respective proposals. Moreover, Professor Jacobson’s prominent claim that his proposed system 

would provide electricity at prices lower than a conventional system relies on aggressive, 

implausible assumptions. Their proposed energy systems would also require a very high level of 

regulatory intervention in the economy, as Professor Williams himself concedes. Professor 

Jacobson simply dismisses this consequence as a “social or “political” barrier to implementation. 

Additionally, Professor Jacobson’s and Professor Williams’ proposals deviate from consensus 

views in the literature. Addressing global climate change is an important objective, but it must be 

pursued realistically within the institutional framework of our economic and political system. 

Plaintiffs’ experts have not demonstrated that their approaches are realistic or likely to succeed in 

practice. I discuss these conclusions in Section XII. 

IV. Climate Change Is a Real, Global Problem

A. Global Climate Change Resulting from Greenhouse Gas Emissions

33. I understand that the impact of fossil fuel emissions on the climate is not in dispute in this 

case. 20 As I have acknowledged in my publications, 21 a large body of scientific evidence has 

 

20 Answer, ¶1. 21 James L. Sweeney, Energy Efficiency: Building a Clean, Secure Economy (Stanford, CA: Hoover Institution 

Press, 2016) (“Sweeney”), pp. 1–196 at p. 85. See also Kenneth Gillingham and James Sweeney, “Market Failure 

and the Structure of Externalities,” in Harnessing Renewable Energy, ed. Boaz Moselle et al. (New York: 

Routledge, 2010), pp. 1–23 at p. 73; Arthur van Benthem et al., “Learning-by-Doing and the Optimal Solar Policy in 

California,” Energy Journal 29, no. 3, 2008, pp. 1–26 at p. 2.

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established that global temperatures are rising and will continue to rise in the future; that 

increasing atmospheric concentrations of GHG, including but not limited to CO2, are the primary

cause of rising global temperatures; and that human activity is the primary cause of rising GHG 

levels. 

34. According to the Intergovernmental Panel on Climate Change (“IPCC”)’s fifth 

assessment report, “for most economic sectors, the impacts of drivers such as changes in 

population, age structure, income, technology, relative prices, lifestyle, regulation, and 

governance are projected to be large relative to the impacts of climate change... Global 

economic impacts from climate change are difficult to estimate... there are large differences 

between and within countries.” 22 The negative impacts and the difficulties of adapting will be 

felt primarily by developing countries and low-lying island nations. Developed countries such as 

the U.S. will have the technical knowledge, information, skills, infrastructure, and institutions to 

allow adaptation to the changing conditions, whereas many developing countries have less

capacity to adapt and are therefore more vulnerable. 

 

22 See, for example, IPCC Report, “Climate Change 2014 Impacts, Adaptation, and Vulnerability Summary for 

Policymakers,” 2014, p. 19.

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35. I understand that it is undisputed in this lawsuit that GHG emissions result from the 

combustion of fossil fuels. 23 In the U.S., in 2016 about 76% of GHG emissions were CO2 from 

combustion of fossil fuels. Another 5% were CO2 from forestry and other land use. About 10% 

were methane. This distribution of U.S. greenhouse gases is depicted in Figure 1. Thus, the 

elimination of only CO2 emissions from fossil fuel combustion would not eliminate all 

greenhouse gases. 

 

23Answer, ¶1.

F-gases

3% Nitrous Oxide

6%

Methane

10%

Carbon Dioxide: Fossil 

Fuels 76%

Carbon Dioxide: Other

5%

Source: U.S. Environmental Protection Agency, 2018, “Inventory of U.S. Greenhouse Gas Emissions and Sinks 

1990-2016,” Table ES-2: Recent Trends in U.S. Greenhouse Gas Emissions and Sinks (MMT CO2 Eq.)

Figure 1. U.S. Greenhouse Gas Emissions by Gas

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B. The U.S. Alone Cannot Ensure That Atmospheric CO2 Is No More 

Concentrated than 350 ppm by 2100 

36. Plaintiffs demand that the federal government should be ordered to assure that the climate 

system is stabilized at no more than 350 ppm CO2 by 2100. 24 But climate change is a global 

problem. Unilateral U.S. action, whether it eliminates direct federal government emissions or 

could somehow eliminate private sector and state/local government emissions, cannot stabilize 

atmospheric CO2 concentration levels, much less reduce CO2 concentrations to the level 

requested by Plaintiffs.

 

24 Complaint, ¶12. 

0

5

10

15

20

25

30

35

1980 1985 1990 1995 2000 2005 2010 2015

United States

North America not United States

China

Asia & Oceania not China

Europe

Eurasia

Central & South America

Africa

Middle East

United States

China

Europe

Gigatons of 

CO2 Emissions

Source: U.S. Energy Information Administration, International Energy Statistics 

Figure 2. Annual CO2 Emissions from Energy

1980–2015 

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37. Although the U.S. has historically contributed about 25% of global CO2 emissions, 25 it 

now emits only a small fraction of global GHG emissions. The recent data, graphed in Figure 2, 

show that the U.S. contributed 16% of the global energy emissions of CO2 from fossil fuels as of 

2015. 26 Most of these emissions (84%) came from other countries. The largest emitter, China, 

contributed 27% of the world emissions from fossil fuels. In the U.S. there has been little growth 

over the last 35 years in CO2 emissions from the energy system. In Europe there has been a 

decline. The largest growth has been in China and in the rest of Asia and Oceania. 

38. Therefore, unilateral U.S. action cannot halt global emissions or stabilize the level of 

atmospheric CO2 concentration. Even if the U.S. were to unilaterally eliminate all use and 

production of fossil fuels tomorrow, worldwide energy related CO2 emissions would be at least 

84% of current emissions and would continue to grow, as would CO2 concentration. And 84% is 

likely to be a lower estimate. If the U.S. halted its use and production of fossil fuels, the prices 

of these fuels would fall and other counties would increase their use of fossil fuels, thereby 

partially offsetting the U.S. reduction in emissions. 27 As a result, unilateral action by the U.S.

could not provide Plaintiffs with the relief that they seek—that is, CO2 concentration no greater 

than 350 ppm. Any solution to climate change requires global coordination and cannot be based 

on U.S. action alone. 

39. Recent IPCC research concludes that achieving atmospheric CO2 concentrations below 

430 ppm—not 350 ppm—by 2100 would require a reduction of 70% to 95% in global GHG 

emissions relative to 2010 levels. 28 The IPCC assessment involves a large number of scenarios 

published in the scientific literature. 29 The U.S. GHG emissions, accounting for just 16% of 

global CO2 energy related emissions, is well short of the 70% reduction the IPCC deemed 

necessary. Thus, even if the U.S. completely eliminated CO2 emissions from energy 

immediately, the reduction in global CO2 emissions would not be sufficient to stabilize CO2

 

25 Answer, ¶151. 26 U.S. Energy Information Administration, International Energy Statistics. 27 The U.S. is a net importer of fossil fuels, so halting all use and production of fossil fuels would decrease world 

demand more than it would world supply of fossil fuels. See U.S. Energy Information Administration, “July 2018 

Monthly Energy Review,” Table 1.4b Primary Energy Exports by Source and Total Net Imports.

28 IPCC Report, “Climate Change 2014 Synthesis Report Summary for Policymakers,” 2014, p. 21. 29 IPCC Report, “Climate Change 2014 Synthesis Report Summary for Policymakers,” 2014, p. 22.

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concentrations below 430 ppm by 2100, much less reach the 350 ppm concentration that 

Plaintiffs seek. 

40. Even global coordination may not be sufficient to yield the relief that Plaintiffs demand. 

The Emissions Gap Report 2017 by the United Nations Environment Programme (“UNEP”) 

states that “[a] large gap exists between 2030 emission levels and those consistent with least-cost 

pathways to the 2 degrees C and 1.5 degrees C goals respectively,” 30 and that “the assessment 

shows that for many countries, implementing their Nationally Determined Contribution (‘NDC’) 

would lead to lower emissions than the current policies scenario, or in other words that additional 

policies will have to be implemented to meet the NDC target.” 31 This indicates that not only is 

there a “gap” between current pledges and the progress required to meet temperature goals, but 

there is also a “gap” between what countries’ current policies are and what they would need to be 

to achieve those pledges. 

41. Though climate change is a global problem, Plaintiffs focus on the U.S. government’s 

policies regarding climate change. I discuss the framework in which U.S. energy policy is 

created in the next section. 

V. Energy Policy in the U.S. Requires Trade-Offs among Economic, Security, and 

Environmental Objectives

42. U.S. energy policy is the outcome of a 

policymaking process that balances at least three 

competing fundamental objectives: economic 

growth/welfare, domestic and international security, and 

environmental objectives, referred to as the “Energy 

Policy Triangle.” 32 The Energy Policy Triangle 

describes the trade-offs between the competing 

objectives, and has been the framework (implicitly or 

 

30 UNEP Report, “The Emissions Gap Report 2017,” 2017, p. xvii. 31 UNEP Report, “The Emissions Gap Report 2017,” 2017, p. xviii (“Most G20 countries require new policies and 

actions to achieve their NDC pledges.”). 32 Sweeney, pp. xv, 166.

Figure 3. The Energy Policy 

Triangle

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explicitly) of energy policy discussions since at least 1973. 33 These goals have been adopted not 

just by the U.S. but internationally, although different countries place different emphases on the 

three goals. 34 Likewise, different U.S. administrations have placed different emphases on the 

three goals.

A. The Environment 

43. Energy-related issues of the environment include local and international impacts of 

energy production and use. Environmental outcomes are influenced by the economic and policy 

processes that influence the mix of primary energy sources, 35 the energy conversion processes 

(e.g., in the generation of electricity), and the amounts and types of energy that are consumed. In 

the U.S., economic and policy processes that have led to growing energy efficiency have been 

good for the environment: reductions in energy use mean that less energy needs to be produced, 

transported, or transmitted. Less energy use implies less GHG emissions in the atmosphere. 36

44. Other domestic environmental impacts include release of particulates, oxides of nitrogen, 

sulfur dioxide, and other pollutants into the air; water pollution associated with the production of 

fossil fuels such as coal or natural gas; use of water for production of primary energy or for 

conversion of primary energy into electricity; and disruption of natural habitats. Energy policy 

 

33 Sweeney, p. xv; Raphael J. Heffron, “What is Energy Law,” in Energy Law: An Introduction (Springer 

International Publishing, 2015), pp. 1–10 at pp. 3–4. An early example of the tension in energy policy between 

economic and national security interests can be seen in the Eisenhower administration’s decision to prohibit the 

export of crude oil on national security grounds. See Deon Daugherty, “Limit Crude Imports: Perhaps Eisenhower 

Was on to Something,” Rigzone, January 25, 2016, 

https://www.rigzone.com/news/oil_gas/a/142660/column_limit_crude_imports_perhaps_eisenhower_was_on_to_so

mething/?all=hg2, accessed August 3, 2018.

34 The U.S. is not unique in its efforts to balance competing objectives in its energy policy. Other countries also 

conduct the same balancing exercise when setting energy policy. The World Energy Council has used the term 

“Energy Trilemma,” for three (sometimes competing) aspects of energy policy: energy security, energy equity 

(accessibility and affordability of energy), and environmental sustainability. World Energy Council Report, “World 

Energy Trilemma 2016,” 2016, p. 12. In an annual report published since 2010, the World Energy Council assesses 

countries’ energy policy in the “trilemma lens” since “neglecting one dimension of the trilemma can result in 

unintended consequences and higher future costs in economic, social and environmental terms.” World Energy 

Council, “World Energy Trilemma 2016,” 2016, pp. 10, 25. Another example of using the term energy trilemma is 

Australia. See, for example, David Byrne, “Australia’s Energy Trilemma Explained,” The University of Melbourne, 

July 3, 2017, https://pursuit.unimelb.edu.au/articles/australia-s-energy-trilemma-explained, accessed August 6, 2018. 35 “Energy commodities are either extracted or captured directly from natural resources (and are termed primary) 

such as crude oil, hard coal, natural gas, or are produced from primary commodities. All energy commodities which 

are not primary but produced from primary commodities are termed secondary commodities. Secondary energy 

comes from the transformation of primary or secondary energy.” See International Energy Agency, Energy Statistics 

Manual (Paris: IEA Publications, 2005), p. 18. 36 Sweeney, p. 4.

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that has set standards on new and existing sources of these pollutants have had environmental 

benefits. 37

B. Domestic and International Security

45. Issues of security include the vulnerability of the U.S. and its allies to military and 

terrorist attacks. This important issue has led to the need for strong military and governmental 

policies and programs to maintain a strong defense. Military ships, airplanes, motor vehicles, 

and land bases use energy of various types, including oil and natural gas. In addition, an 

important security issue is the vulnerability of the U.S. to deliberate or accidental restrictions on 

oil imports, vulnerability of the U.S. economy to rapid fluctuations in energy prices, or 

limitations placed on U.S. foreign-policy options as a result of U.S. dependence on foreign 

energy sources. 38 

46. Increases in domestic production of energy have been important in enhancing domestic 

and international security. 39 Adequate domestic supplies of oil have assured that the U.S.

military is not dependent on foreign sources of oil, particularly from unstable parts of the world, 

such as the Middle East. Energy efficiency in the military, likewise, has reduced the military 

dependency on fossil fuels. 40

47. For at least 60 years, the U.S. has been a net importer of energy, particularly oil. 41

Subsequent to the energy crisis of 1973–1974, public and private sector actions to increase 

domestic production of energy, including oil and natural gas, have been important in reducing 

net energy imports. Likewise, energy efficiency has allowed the U.S. to reduce energy imports. 

The combination of energy efficiency and increased domestic energy production have together 

 

37 Sweeney, p. 4, fn. 4. 38 Sweeney, p. 4. 39 Jason Furman and Gene Sperling, “Reducing America’s Dependence on Foreign Oil As a Strategy to Increase 

Economic Growth and Reduce Economic Vulnerability,” August 29, 2013, Obama White House Archives, available 

at https://obamawhitehouse.archives.gov/blog/2013/08/29/reducing-america-s-dependence-foreign-oil-strategyincrease-economic-growth-and-redu, accessed August 2, 2016 (“The increased domestic supply combined with 

increased oil efficiency of the economy reduces vulnerability to global supply disruptions and price shocks, 

enhancing our national security.”).

40 Sweeney, p. 107. See also The Pew Charitable Trusts Report, “Power Surge: Energy Security and the 

Department of Defense,” January 2014, p. 1 (“The research in this report details how defense leaders have initiated 

wide-ranging steps to harness advanced technologies to conserve energy, enable on-site production from renewable 

sources, and save taxpayers millions of dollars.”). 41 Sweeney, p. 95, Figure 3.11. See also U.S. Energy Information Administration, “May 2018 Monthly Energy 

Review,” Table 1.4b Primary Energy Exports by Source and Total Net Imports.

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reduced energy imports enough that the U.S. may soon become self-sufficient in energy, thereby 

increasing security. 42

C. The Economy

48. Economic issues include growth of GDP, the number and quality of jobs available for the 

population, and the distribution of wealth and income. Energy has been a fundamental input to 

almost all economic activity. Economic growth, absent changes in energy efficiency, leads to 

roughly proportional increases in the use of all forms of energy. 43 Reducing the energy use per 

unit of economic activity of productive inputs works in the opposite direction, reducing energy 

use. Energy use is influenced by the policy trade-offs between economic growth and energy 

efficiency. With additional economic growth, the U.S. population enjoys increases in personal 

income. That income is spent on homes, transportation, entertainment, and consumption of 

goods, all of which increase use of energy. 

49. Domestic production of energy, including fossil fuels, provides profits to firms and 

employment of a labor force. U.S. economic policy has been to provide jobs. 44 Domestic 

production of energy, particularly in U.S. regions dependent on fossil fuels, has been a policy 

objective for the U.S. derived from the U.S. policy to create jobs and profitable industries. It is a 

matter of debate whether production of wind and solar energy would similarly fulfill the 

employment policy objective in each area of the country currently dependent on the production 

of fossil fuels. 45

 

42 Sweeney, p. 167. 43 See Shaojian Wang et al., “The Relationship Between Economic Growth, Energy Consumption, and CO2 

Emissions: Empirical Evidence from China,” Science of The Total Environment 542, 2016, pp. 360–371 (“Causal 

relationships were found to exist between economic growth, energy consumption, and CO2 emissions; specifically, a 

bi-directional causal relationship between economic growth and every consumption was identified.”). 44 Congress has established the United States Federal Reserve’s three primary objectives: maximum employment, 

stable prices, and moderate long-term interest rates. See “What are the Federal Reserve’s objectives in conducting 

monetary policy?” Federal Reserve, June 13, 2018, https://www.federalreserve.gov/faqs/money_12848.htm, 

accessed August 3, 2018.

45 One example of this debate are the academic discussions related to Professor Jacobson’s work. A review of one 

of Professor Jacobson’s proposals finds that “replacing fossil fuels with renewable technologies like wind and solar 

would actually cause a new loss of 1.2 million long-term jobs.” See Steve Everley, “Stanford’s Jacobson Spins 

Energy Misinformation (100% renewables fantasy),” MasterResource, 2016, 

https://www.masterresource.org/renewable-energy-and-jobs/stanfords-jacobson-spins-misinformation-in-theenergy-debate-100-renewables-fantasy/, accessed August 3, 2018.

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50. Energy efficiency has been a U.S. policy that helps the economy while reducing the use 

of energy, for a given level of economic activity. Reductions in the government use of energy 

have provided savings for the federal government, reduced the federal deficit, and reduced the 

balance of the trade deficit. 46 Cost-effective reductions in the use of energy by businesses can 

make them more profitable and thus increase GDP. Cost-effective reductions in the use of 

energy by households can leave more disposable income available for other purposes. 

Particularly for low-income households, reductions in energy costs can be important for overall 

well-being. Reduced use of electricity has avoided the need to construct thousands of megawatts 

of new electric generation stations, saving billions of dollars. 47

D. Energy Policy Involves Trade-Offs among the Three Goals 

51. As described above, environmental protection, although an important goal, is not the only 

consideration in setting national energy policies. The U.S. has attempted to balance the three 

competing fundamental objectives: economic growth/welfare, domestic and international 

security, and environmental objectives. Some actions, such as energy efficiency, could be 

supportive of all three objectives. Other actions, such as encouraging domestic production of 

natural gas, could be supportive of all three in the short run—for example, by substituting for 

coal and thus decreasing CO2 emissions—while harmful for environmental objectives in the long 

run. Other actions, such as encouraging domestic production of oil, can be valuable for national 

security and for economic objectives, even though they may be harmful for environmental goals. 

52. Energy and energy/environmental policy in the U.S., at least since the energy crisis of 

1973–1974, requires trade-offs among these various fundamental objectives. In the U.S., 

Congress and the federal administrations have debated these trade-offs and have made regulatory 

decisions that explicitly took these trade-offs into account. 48 For example, as discussed below, 

automotive fuel economy standards have reduced GHG emissions, increased energy security, but 

have led to higher economic costs for consumers. 

 

46 Sweeney, p. 5. 47 Sweeney, p. 5. 48 Examples of energy policies and their trade-offs are discussed in Sections VII-IX.

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53. There has not been consistent agreement over time among the general U.S. population or 

Congress about the relative weights that should be given to the various objectives of energy 

policy. For example, in the decades after the oil crisis of 1973–1974, a great weight was given to 

national security. Over time, the weight given to the environmental objective has appeared to 

grow. In addition, there has always been a heavy weight on the economic growth objective, but 

the weight given to the economic well-being of various regions of the country appears to change 

over time. 

54. Moreover, there has not been consistent agreement among people or between political 

parties about the relative weights that should be given to the various objectives. Differences 

among U.S. citizens has played out in Congress and within federal administrations, with some 

elected representatives placing more weight on economic growth, others placing more weight on 

environmental protection, and still others placing more weight on national security. Even within 

a given category, there are differences. For example, many concerned about the environment 

could put more weight on protection of local land use while others may be more concerned with 

global climate change. Within the economic objective, some could put more weight on 

economic welfare of particular disadvantaged regions and others more weight on the overall rate 

of economic growth. 

55. Given the differences in the relative weights placed on the various objectives—

differences across people and over time—some of the trade-offs have favored the environmental 

objective, others the national security objective, and still others the economic objective. Indeed, 

some trade-offs have benefited all three objectives. For me this is not surprising in a democratic 

society. 

56. In contrast, Plaintiffs adopt a narrow, one-dimensional view of energy policy, and appear 

to imply that U.S. policy should singularly focus on reducing the production and use of fossil 

fuels. They appear to allege that the U.S. Constitution requires the government to determine 

energy policy solely on the basis of its environmental effects, and in particular its effect on GHG 

emissions. 49 Plaintiffs allege that the U.S. Constitution should not allow government policies 

that permit, subsidize, and create incentives for the production and consumption of fossil fuels, 

 

49 Complaint, ¶¶8, 286, 303–305.

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and criticize the U.S. government’s alleged failure to develop policies that reduce fossil fuel 

production and consumption. 50 They do not acknowledge the other objectives of energy 

policy—that is, national/international security and economic growth/health—nor do they seem to 

recognize that some of the policies they criticize have supported these other two objectives. 

Plaintiffs also overlook that some U.S. policies have been very supportive of environmental 

goals. 

57. An early example illustrates the federal government’s recognition that energy policy 

involves complex trade-offs and should not be a narrow, one-dimensional focus on one single 

objective. 

58. In 1973, during the energy crisis resulting from the oil embargo, the Nixon administration 

announced Project Independence, an energy policy balancing economic and national security 

concerns with a goal of achieving U.S. energy self-sufficiency by 1980. 51 The Project 

Independence Report, published by the U.S. Federal Energy Administration in 1974, made it 

clear that U.S. energy policy, while addressing issues of national security, must take into account 

various impacts on the economy and the environment. The report stated: 52

“The embargo made obvious the need to reevaluate our domestic and international energy 

policies and to fashion a new energy program to hold our vulnerability to acceptable 

levels. 

... 

“Unfortunately, the reduction of imports, if it means the substitution of more expensive 

domestic energy sources, could very easily be accompanied by much higher domestic 

energy prices, inflation, a drop in real gross national product (GNP), supply risks, and a 

number of other undesirable effects, such as environmental degradation and depletion of 

reserves.

... 

“Any policy which reduces our dependence on imports and economic vulnerability to 

supply disruptions will have other effects that must be considered. These are discussed 

below. 

The Domestic Economic Impact of the Strategy. The overall economic impact of an 

energy strategy can be measured through the standard indicators -- real growth in the 

 

50 Complaint, ¶¶99, 106. 51 Richard Nixon, “Address to the Nation About Policies To Deal With the Energy Shortages,” The American 

Presidency Project, November 7, 1973, http://www.presidency.ucsb.edu/ws/?pid=4034, accessed August 3, 2018. 52 Federal Energy Administration, “Project Independence,” Project Independence Report, November 1974, pp. 18–

20, https://catalog.hathitrust.org/Record/000686195.

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GNP, the rate of inflation, and the unemployment rate. The effect on the balance of 

payments, and any extraordinary impact concentrated on particular localities, economic 

sectors or income groups, must also be measured. 

The Environmental Impact of the Strategy. The quality of life is measured in more than 

economic terms, and environmental quality is a key element of such an assessment. In 

addition to air and water pollution, the impact on land use and recreation for each energy 

strategy must also be measured. This is usually a very difficult evaluation to perform, 

because the trade-offs are incommensurate. How, for instance, should one value the 

preservation of a remote, pristine Alaska wilderness area versus the development of 

offshore oil near major recreational areas on the north east coast? 

The Degree of Federal Intervention Required to Implement the Strategy. An otherwise 

acceptable strategy might involve an intolerable or unfeasible amount of Federal 

intervention. Under this criterion are included financial intervention in the form of taxes 

or subsidies, and new energy- related regulations. The analysis must also include 

institutional intervention into environmental, health and safety matters, and licensing and 

regulatory barriers. 

The Effect of the Strategy on World Oil Prices. If domestic strategies can significantly 

affect U.S. imports, then such strategies may also affect the world supply/demand 

balance. Hence, they must be weighed in terms of their international ramifications and, 

consequently, their impact on U. S. import price expectations.” 

59. In recognition of the complexity of energy policy, the Project Independence Report

identified four broad strategic alternatives for U.S. national energy policies to achieve U.S.

energy self-sufficiency, recognizing that “practically speaking, any final Project Independence 

program would almost surely be a mixed strategy taking elements from each.” 53

“A Base Case, in which existing policies continue and only limited new actions are 

considered. 

An Accelerated Supply Strategy, in which the Federal Government takes a number of key 

actions to increase the domestic supply of energy ...., 

A Conservation Strategy, which would reduce demand for petroleum .... , 

An Emergency Preparedness Strategy ....”

60. These broad strategic alternatives reflected the explicit understanding that any individual 

alternative would have impacts on the environment, the economy, and on national security. 

 

53 Federal Energy Administration, “Project Independence,” Project Independence Report, November 1974, p. 20, 

https://catalog.hathitrust.org/Record/000686195.

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61. The Nixon administration, and subsequently the Ford and Carter administrations, created 

institutions and regulations and signed legislation in pursuit of these strategic alternatives and 

broad policy goals. 54

62. In 1977, the Carter administration combined the various energy-related offices, the 

Federal Power Commission, and other agencies into the DOE. 55 The Congressional Findings in 

the Department of Energy Organization Act of 1977 make it clear that the DOE would support 

multiple objectives: 56

“The Congress of the United States finds that— 

(1) the United States faces an increasing shortage of nonrenewable energy 

resources; 

(2) this energy shortage and our increasing dependence on foreign energy supplies 

present a serious threat to the national security of the United States and to the 

health, safety and welfare of its citizens; 

(3) a strong national energy program is needed to meet the present and future 

energy needs of the Nation consistent with overall national economic, 

environmental and social goals; ...” 

63. The major initiatives in U.S. energy policy since the creation of these institutions provide 

many examples of the tension between the elements of the Energy Policy Triangle. 

64. I now turn to what has been accomplished within the framework of the Energy Policy 

Triangle. 

VI. The U.S. Economy Has Decarbonized 66% since 1973 

65. To analyze the changes in the CO2 emissions from energy use in the U.S. economy, one 

can use the Kaya identity, which expresses CO2 emissions as the product of three factors: the 

 

54 In 1973 the Nixon administration created several energy-related offices, which subsequently were combined into 

the Federal Energy Administration in 1974. The Energy Research and Development Administration was created by 

the Energy Reorganization Act of 1974. Also in 1974 the International Energy Agency was founded as a Parisbased intergovernmental organization under the Organization for Economic Co-operation and Development 

(OECD). Sweeney, pp. 81, 91, 137.

55 42 U.S.C., §§7111, 7151. 56 42 U.S.C., §7111.

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amount of CO2 emissions per unit of energy use, the amount of energy use per unit of real GDP, 

and the real GDP. 57 Mathematically, this identity can be written as follows: 

 CO2 = GDP x (CO2/Energy Use) x (Energy Use/GDP) 

66. The Kaya identity can also be used to explain changes in the “carbon intensity” of the 

economy. Carbon intensity is the total CO2 emission per dollar of real (inflation adjusted) GDP. 

Dividing each side of the equation above gives carbon intensity of the economy as a product of 

two factors:

CO2/GDP = (CO2/Energy Use) x (Energy Use/GDP) 

67. The first term on the right-hand side of this identity, the CO2 emissions per unit of energy 

use, is the carbon intensity of energy consumption. For example, if low carbon or carbon free 

fuels substituted for fossil fuels and the carbon intensity of energy consumption were reduced by 

11%, this identity shows that, with all else equal, the CO2 emissions per unit of GDP would be 

likewise cut by 11%. 

68. The second term on the right-hand side is the energy use per unit of GDP, the energy 

intensity of the economy. If the energy intensity of the economy were to decline by 50%, this 

identity shows that, with all else equal, the carbon intensity of the economy would likewise be 

cut by 50%. If GDP is not influenced, CO2 emissions per unit of GDP would be cut by 50%. 

69. The decomposition of carbon intensity of the economy into the two components of 

energy intensity of the economy and carbon intensity of energy consumption helps in separating 

the historical impacts of energy efficiency from those of changing energy supply technologies. 

70. Enhancement of energy efficiency reduces the energy intensity of the economy. 

Provision of low carbon or carbon-free supplies of energy reduces the carbon intensity of the 

energy system. Either reduction taken alone reduces the carbon intensity of the economy. 

 

57 An identity is a mathematical equality that must always be true no matter the value of the variables. The 

particular identity, the Kaya identity, is named after Yoichi Kaya. See Yoichi Kaya and Keiichi Yokoburi, 

Environment, Energy, and Economy: Strategies for Sustainability (United States of America: United Nations 

University Press, 1997).

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71. For a given GDP growth over time, the lower the carbon intensity of the economy, the 

lower are carbon emissions. Reductions in carbon intensity have reduced carbon emissions from 

what they would have been otherwise. 

72. GHG emissions have in fact been reduced from what they would otherwise have been, 

given the economic growth in the U.S. Energy policy has provided research and development, 

direct actions, regulations, and incentives to decarbonize the economy. 

73. As a result of the actions of many entities, including the federal government, the U.S. has 

greatly decarbonized since the energy crisis of 1973–1974. This can be seen in Figure 4. The 

red line shows the carbon intensity of the U.S. economy from 1973 through 2017, relative to the 

carbon intensity in 1973. The data are normalized relative to 1973 levels, so the carbon intensity 

of the economy is shown as 1.0 in 1973. Figure 4 shows that the carbon intensity has declined 

by 66%: the carbon intensity of the U.S. economy in 2017 was only 34% of its value in 1973. 

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

0.9

1

Reduction in

Energy Intensity of the Economy

Decarbonization of Energy System

Carbon Intensity of the Economy

Index of CO2 per Dollar of Real GDP

(1973 = 1)

Source: U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Table 1.7 Primary Energy 

Consumption, Energy Expenditures, and Carbon Dioxide Emissions Indicators, Table 12.1 Carbon Dioxide Emissions From 

Energy Consumption by Source; Federal Reserve Bank of St. Louis

Figure 4. Factors Leading to Reduced Carbon Intensity of U.S. Economy 

1973–2017 

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74. Figure 4 also decomposes the reduction in carbon intensity into the two factors in the 

Kaya identity: the impacts of reduced energy intensity since 1973 (shown in green), and impacts 

of reduced carbon intensity of energy consumption (shown in grey.) Together, these two factors 

account for the 66% reduction in the carbon intensity of the U.S. economy. 

75. The energy intensity has decreased 59% from its 1973 value: in 2017 the energy 

intensity of the U.S. economy is only 41% of its value in 1973. The carbon intensity of energy 

has decreased 16%: U.S. energy consumption in 2017 is 84% as carbon intense as it was in 1973. 

These two factors are multiplicative, as shown in the Kaya identity, leading to the reductions in 

2017 carbon intensity of the U.S. economy to 34% of its value in 1973. 

76. Although the carbon intensity of the economy has decreased sharply, CO2 emissions have 

increased since 1973 because the economy has continued to grow. This can be illustrated by 

Figure 5, which shows the various factors in the Kaya identity over time intervals. The data 

plotted are the average annual rates of change of each variable over the time intervals.

-4%

-3%

-2%

-1%

0%

1%

2%

3%

4%

1960 – 1973 1973 – 1985 1985 – 1995 1995 – 2005 2005 – 2017 2010 – 2017

Energy Intensity of U.S. Economy

Carbon Intensity of Energy Consumption

Carbon Intensity of U.S. Economy

GDP

Total CO2 From Energy

Average Annual 

Rate of Change

Source: U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Table 1.7 Primary Energy 

Consumption, Energy Expenditures, and Carbon Dioxide Emissions Indicators, Table 12.1 Carbon Dioxide Emissions From 

Energy Consumption by Source; U.S. Energy Information Administration Report, “Annual Energy Review 2011,” Table 11.1 

Carbon Dioxide Emissions from Energy Consumption by Source, Selected Years, 1949-2011; Federal Reserve Bank of St. Louis

Figure 5. Factors in the Kaya Identity by Time Interval

1960–2017 

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77. In Figure 5, the blue bars represent the annual rate of change of the energy intensity of 

the U.S. economy; the red bars represent the annual rate of change of the carbon intensity of 

energy consumption. The size of these two bars add together to give the green bar, the annual 

rate of change of the carbon intensity of the U.S. economy. 58 The purple bar shows the annual 

rate of change of the real (inflation-adjusted) GDP of the economy. The green and the purple bar 

add together to show the annual rate of change of CO2 emissions from the use of energy in the 

U.S., represented by the black bars.

78. Figure 5 shows that prior to the 1973–1974 energy crisis, the energy intensity of the 

economy had been declining by only 0.3% per year and the carbon intensity of the economy had 

been declining by only 0.6% per year. With the GDP increasing by 4.4% per year, CO2 

emissions from energy use increased by 3.8% per year, on average. 

79. However, in the years after the crisis, the energy intensity of the economy started

decreasing much more rapidly. In the 12 years immediately after the energy crisis—a time of

high energy prices and considerable energy efficiency policy—energy intensity decreased on 

average by 2.7% per year. Subsequent intervals showed energy intensity falling by between 

1.1% and 2.4% per year. Carbon intensity of the economy decreased by 3.0% annually in the 12 

years immediately after the energy crisis and in subsequent 10–year or 12–year intervals by 

between 1.4% and 2.8% annually.

80. An important policy goal for the U.S. economy, however, has been economic growth. In 

each time period considered, real GDP grew on average between 1.6% and 4.4% annually. This 

rate of economic growth was greater than the decline of carbon intensity in all but two of the 

decades. Specifically, CO2 emissions from the energy sector increased in all but the 12 years 

immediately following the energy crisis and the most recent 11 years.

81. This figure illustrates the policy trade-offs facing the U.S. economy. If the decrease in 

carbon intensity of the economy had remained at the levels shown in Figure 5, but all economic 

growth had stopped as of 1973, CO2 emissions from energy use would have declined by 66% 

over that time. However, the real GDP in 2017 would be only a third of its actual level. It is 

 

58 The rates of change add together because the factors are multiplicative.

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27 

dubious whether any federal administration, Republican or Democratic, would have considered 

that as a preferable outcome. 

82. Conversely, if the real GDP growth rates had remained at the levels shown in Figure 5, 

but there had been no reduction in either the carbon intensity of energy use or the energy 

intensity of the economy, CO2 emissions from energy use would be roughly three times as large 

as they are currently. Having worked with political entities over the course of my career, 

beginning with my time as an Office Director of the Federal Energy Administration (1974 

through 1976) I opine that no federal administration, Republican or Democratic, would have 

considered that as a preferable outcome. And I personally have not and would not advocate such 

an alternative. 

83. In addition, Figure 5 shows that during the time interval from 2005 through 2017, the 

carbon intensity of the consumed energy decreased by over 1% per year, further decarbonizing 

the U.S. economy. This trend came about because the fractions of primary energy consumed in 

the U.S. changed. For primary energy sources with carbon content lower than the weighted 

average of the primary energy in the U.S. system, increases in market shares decrease the carbon 

intensity of energy consumed. Similarly, for primary energy sources with carbon content greater 

than the weighted average of the primary energy in the U.S. system, decreases in market shares 

decrease the carbon intensity of energy consumed. 

84. Figure 6 shows the impacts of such changing market shares on the carbon intensity of the 

energy system, from 2005 through 2017. It demonstrates that the greatest impact on carbon 

intensity of the energy system has been the decrease in market share of coal, primarily because 

natural gas is substituting for coal in electricity generation. Adding together two impacts—that 

of decreased market share of coal and that of increased market share of natural gas (which is less 

carbon intense than the overall U.S. energy system)—shows that this substitution of natural gas 

in place of coal has decarbonized the economy by 6% over the 11-year period from 2005 through 

2017. 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 31 of 129
28 

85. In addition, the increase in biomass used for energy and the increase in market share of 

wind power have further contributed to this 12% decarbonization through changing market 

shares of primary energy used. 

86. These data show that reductions in energy intensity of the economy and in carbon 

intensity of energy consumption have been fundamental in reducing emissions of CO2 from 

levels that would have occurred without these intensity reductions. In the next sections I 

describe federal policy actions that helped create these intensity reductions. I begin discussing 

energy efficiency, which reduced the energy intensity of the economy. Subsequently I discuss 

the policies that have encouraged the growth of low carbon or near-zero-carbon energy 

production technologies. 

-12%

-10%

-8%

-6%

-4%

-2%

0%

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Solar

Geothermal

Wind

Biomass

Petroleum

Nuclear

Natural Gas

Coal

Hydroelectric

% Change in Carbon 

Intensity Relative to 2005

Source: U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Table 1.3 Primary Energy Consumption 

by Source, Table 12.1 Carbon Dioxide Emissions from Energy Consumption by Source

Figure 6. Components of Energy System Decarbonization 

2005–2017 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 32 of 129
29 

VII. Federal Programs and Policies Have Contributed Substantially to the 

Decarbonization of the U.S. Economy 

87. Plaintiffs’ experts and the Complaint assert that the federal government has done little to 

reduce GHG emissions. 59 However, beginning in 1973, federal policy changes have contributed 

substantially to the decarbonization of the U.S. economy, even while addressing the multiple 

competing fundamental policy objectives.

A. Affirmative Policy Steps Encouraging Energy Efficiency

88. The federal government has taken affirmative policy steps that have reduced emissions 

by increasing energy efficiency. 

89. An example of such an affirmative policy was the Energy Policy and Conservation Act of 

1975, which was motivated by the energy crisis of 1973–1974 and arguably was framed by the 

discussion in the Project Independence Report. 60 This act established two important efficiency 

standards programs that have had a significant impact on U.S. energy efficiency. The first is the 

CAFE Standards, which placed minimum efficiency standards on each manufacturer of new cars 

and light-duty trucks sold in the U.S. 61 The CAFE Standards were later strengthened by the 

Energy Independence and Security Act of 2007 62 and later by the Obama Administration. 63 The 

CAFE Standards have helped reduce the fuel consumption per mile of new vehicles by 57% 

from 1973 to 2013, 64 although some of these reductions would have come about because of 

increased gasoline prices and increased competition from makers of small foreign cars.

90. The Energy Policy and Conservation Act of 1975 also established federal appliance 

efficiency standards. 65 The program’s standards and list of appliances were strengthened and 

expanded under the National Energy Conservation Policy Act of 1978, the National Appliance 

Energy Conservation Act of 1987, the Energy Policy Act of 1992, and the Energy Policy Act of 

 

59 Complaint, ¶98, Hansen Report, pp. 3–4, and Declaration of James Gustave “Gus” Speth in Support of Plaintiffs’ 

Response in Opposition to Defendants’ Motion for Summary Judgment, June 27, 2018 (“Speth Declaration”), ¶10. 60 Sweeney, p. 25. 61 Sweeney, p. 25. 62 Sweeney, p. 25. 63 Sweeney, p. 25. 64 Sweeney, p. 25. 65 Sweeney, p. 137.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 33 of 129
30 

2005. 66 Currently, the efficiency standards are applied to products that account for more than 

90%, 60%, and 30% of residential, commercial and industrial energy use, respectively. 67 In 

addition, several states have enacted their own efficiency standards. The appliance standards 

have helped to improve the efficiency of products such as refrigerators (which use 75% less 

energy relative to 1973, despite being larger), washing machines (which use 70% less energy 

relative to 1990), dishwashers (which use 40% less energy relative to 1990), and air conditioners 

(which use 50% less energy relative to 1990). 68

91. Concurrent to the appliance efficiency standards program, the federal government, in 

particular the DOE, the Federal Trade Commission, and the EPA, launched information 

programs to encourage energy-use reduction. 69 In 1992, the EPA launched the Energy Star 

program, a voluntary program established to identify and promote energy-efficient products and 

buildings in order to reduce energy consumption, improve energy security, and reduce 

pollution. 70

92. The federal government has relied heavily on a combination of strategies for 

appliances—technological advances funded by the DOE, advances by private sector 

manufacturers, appliance efficiency standards that progressively pushed and pulled newer 

technologies into the marketplace, and Energy Star labeling. Table 1 summarizes the federal 

equipment efficiency standards for appliances typically sold in the residential sector. Table 2

provides a list of appliances subject to equipment efficiency standards in the 

commercial/industrial sector. 

 

66 Sweeney, p. 137. 67 “Saving Energy and Money with Appliances and Equipment Standards in the United States,” U.S. Department of 

Energy, January 2007, 

https://www.energy.gov/sites/prod/files/2017/01/f34/Appliance%20and%20Equipment%20Standards%20Fact%20S

heet-011917_0.pdf. 68 “Saving Energy and Money with Appliances and Equipment Standards in the United States,” U.S. Department of 

Energy, January 2007, 

https://www.energy.gov/sites/prod/files/2017/01/f34/Appliance%20and%20Equipment%20Standards%20Fact%20S

heet-011917_0.pdf. 69 Sweeney, p. 128. 70 Sweeney, p. 128.

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31 

Product Covered

Initial 

Legislation

Last 

Standard 

Published

Compliance 

Date

Issued 

By

States With 

Standard[1]

Battery Chargers EPACT 2005 2016 2018 DOE CA, OR

Boilers NAECA 1987 2016 2021 DOE

Ceiling Fans EPACT 2005 2017 2020 DOE

Central Air Conditioners and Heat 

Pumps

NAECA 1987 2017 2023 DOE

Clothes Dryers NAECA 1987 2011 2015 DOE

Clothes Washers NAECA 1987 2012 2018 DOE

Compact Audio Equipment CA, CT, OR

Computers and 

Computer Systems

N/A CA

Cooking Products NAECA 1987 2009 2012 DOE

Dehumidifiers EPACT 2005 2016 2019 DOE

Direct Heating Equipment[2] NAECA 1987 2016 None DOE

Dishwashers[2] NAECA 1987 2016 None DOE

DVD Players and Recorders CA, CT, OR

External Power Supplies EPACT 2005 2014 2016 DOE CA

Faucets EPACT 1992 1992 1994 Congress CA, CO

Furnace Fans EPACT 2005 2014 2019 DOE

Furnaces NAECA 1987 2007 2015 DOE

Microwave Ovens NAECA 1987 2013 2016 DOE

Miscellaneous Refrigeration 

Products

2016 2019 DOE CA

Pool Heaters NAECA 1987 2010 2013 DOE

Pool Pumps 2017 2021 DOE AZ, CA, CT, WA

Portable Electric Spas AZ, CA, CT, OR, 

WA

Refrigerators and Freezers NAECA 1987 2011 2014 DOE

Room Air Conditioners NAECA 1987 2011 2014 DOE

Showerheads EPACT 1992 1992 1994 Congress CA, CO

Televisions NAECA 1987 N/A CA, CT, OR

Toilets EPACT 1992 1992 1994 Congress CA, CO, GA, TX

Water Heaters NAECA 1987 2010 2015 DOE

Source: Appliance Standards Awareness Project

Note:

[1] In addition to federal standards, some states have set their own standards, including for some appliances in which the 

federal standards don't yet exist.

[2] DOE is required to issue either a proposed revised standard or a determination that no change is warranted no later than 

six years after the last final rule amending a standard. Products for which a publication date is listed in the table for the 

last standard but for which no compliance date is listed are those for which DOE determined that no change to the 

standard was warranted.

Table 1. Residential National Appliance Standards

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 35 of 129
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93. In the mid-1970s, NASA began the Aircraft Energy Efficiency Program (“AEEP”) to 

make flight operations more efficient. 71 The AEEP led directly to the development of the 

winglet, which increased fuel efficiency of aircraft by 6%–7% and was adopted by the private 

 

71 Sweeney, p. 40.

Product Covered

Initial 

Legislation

Last 

Standard 

Published

Compliance 

Date

Issued 

By

States With 

Standard[1]

Automatic Commercial Ice Makers EPACT 2005 2015 2018 DOE

Boilers, Commercial EPACT 1992 2009 2012 DOE

Clothes Washers, Commercial EPACT 2005 2014 2018 DOE

Commercial CAC and HP (65,000 

Btu/hr to 760,000 Btu/hr)

EPACT 1992 2016 2018 DOE

Commercial CAC and HP (<65,000 

Btu/hr)

EPACT 1992 2015 2017 DOE

Commercial CAC and HP (Waterand Evaporatively-Cooled)EPACT 1992 2012 2013 DOE

Commercial Refrigeration Equipment EPACT 2005 2014 2017 DOE

Commercial Warm Air Furnaces EPACT 1992 2016 2023 DOE

Commercial Water Heaters EPACT 1992 2001 2003 DOE

Computer Room Air Conditioners EPACT 1992 2012 2013 DOE

Distribution Transformers: LiquidImmersedEPACT 1992 2013 2016 DOE

Distribution Transformers: LowVoltage Dry-TypeEPACT 2005 2013 2016 DOE

Distribution Transformers: MediumVoltage Dry-TypeEPACT 1992 2013 2016 DOE

Electric Motors EPACT 1992 2014 2016 DOE

Hot Food Holding Cabinets CA, CT, DC, MD, 

NH, OR, RI, WA

Packaged Terminal AC and HP EPACT 1992 2015 2017 DOE

Pre-Rinse Spray Valves EPACT 2005 2016 2019 DOE

Pumps, Commercial and Industrial EPACT 1992 2016 2020 DOE

Single Package Vertical Air 

Conditioners and Heat Pumps

EPACT 1992 2015 2019 DOE

Small Electric Motors EPACT 1992 2010 2015 DOE

Unit Heaters EPACT 2005 2005 2008 Congress

Urinals EPACT 1992 1992 1994 Congress CA, CO, TX

Vending Machines EPACT 2005 2016 2019 DOE

Walk-In Coolers and Freezers EISA 2007 2014 2017 DOE

Water Dispensers CA, CT, DC, MD, 

NH, OR, RI, WA

Water-Source Heat Pumps EPACT 1992 2015 2015 DOE

Source: Appliance Standards Awareness Project

Note:

[1] In addition to federal standards, some states have set their own standards, including for some appliances in which the 

federal standards don't yet exist.

Table 2. Commercial and Industrial National Appliance Standards

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 36 of 129
33 

sector. 72 Additional AEEP projects led to significant improvements in the fuel efficiency of 

commercial airplanes. An estimate from 1999 suggested that aircraft energy efficiency improved 

since the mid-1970s by an average of 3%–4% each year, reducing the fuel required for a seat by 

50%. 73

94. The federal government also enacted federal lighting standards as part of the Energy 

Independence and Security Act of 2007 (“EISA”), mandating that general service incandescent 

lamps must use roughly at least 27% less energy by 2014 compared to “old-style” incandescent 

lightbulbs, and that most lightbulbs must be 60%–70% more efficient than the standard 

incandescent lights by 2020. 74 Essentially, the EISA prohibited sale of lightbulbs that do not 

meet a minimum efficiency standard of 45 lumens per watt, effective January 2020. 75 The DOE

estimated that these regulations will result in energy savings of 14 quadrillion BTU over 30 years 

(2008–2038). 76 Table 3 provides a list of lighting products subject to efficiency standards.

 

72 Sweeney, p. 40. 73 Mark D. Bowles, “The ‘Apollo’ of Aeronautics: NASA’s Aircraft Energy Efficiency Program 1973 – 1987” 

(Washington, DC: NASA, 2010), p. xv, https://www.nasa.gov/pdf/601247main_ApolloAeronautics-ebook.pdf. 74 Sweeney, p. 137. 75 Colleen L.S. Kantner et al., “Impact of the EISA 2007 Energy Efficiency Standard on General Service Lamps,” 

Berkeley Lab, LBNL-1007090, January 2017, p. 1, 

https://www.eenews.net/assets/2017/05/04/document_gw_04.pdf.

76 Colleen L.S. Kantner et al., “Impact of the EISA 2007 Energy Efficiency Standard on General Service Lamps,” 

Berkeley Lab, LBNL-1007090, January 2017, p. 3, 

https://www.eenews.net/assets/2017/05/04/document_gw_04.pdf.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 37 of 129
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95. In addition to standards, the federal government sponsors R&D programs designed to 

enhance energy efficiency. One example of the many R&D successes stemming from energy 

efficiency research is in refrigeration. Prior to 1973, the electricity used by new refrigerators 

installed in U.S. households was increasing year after year. In 1950 the average new refrigerator 

used about 400 kWh per year; that had increased to about 1,800 kWh per year as of 1973. 77 

96. As a direct response to the increasing use of electricity in refrigerators, in 1977 the DOE, 

through Oak Ridge National Laboratory, supported research into compressor efficiency, with an 

intention to decrease electricity use by refrigerator-freezers and supermarket refrigeration 

 

77 “Energy Research at DOE, Was It Worth It? Energy Efficiency and Fossil Energy Research 1978 to 2000,” 

Committee on Benefits of DOE R&D on Energy Efficiency and Fossil Energy, Board on Energy and Environmental 

Systems, Division on Engineering and Physical Sciences, National Research Council (Washington, DC: National 

Academy Press, 2001) p. 97.

Product Covered

Initial 

Legislation

Last 

Standard 

Published

Compliance 

Date

Issued 

By

States With 

Standard[1]

Candelabra & Intermediate Base 

Incandescent Lamps

2007 2012 Congress

Ceiling Fan Light Kits EPACT 2005 2016 2019 DOE

Compact Fluorescent Lamps EPACT 2005 2005 2006 Congress

Deep-Dimming Fluorescent Ballasts CA

Fluorescent Lamp Ballasts NAECA 1988 2011 2014 DOE

General Service Fluorescent Lamps EPACT 1992 2015 2018 DOE

General Service Lamps EISA 2007 2007 2012 Congress

HID Lamps EPACT 1992 2015 DOE

High Light Output Double-Ended 

Quartz Halogen Lamps

OR

Illuminated Exit Signs EPACT 2005 2005 2006 Congress

Incandescent Reflector Lamps EPACT 1992 2015 None DOE

Mercury Vapor Lamp Ballasts EPACT 2005 2005 2008 Congress

Metal Halide Lamp Fixtures EISA 2007 2014 2017 DOE

Small-Diameter Directional Lamps CA

Torchiere Lighting Fixtures EPACT 2005 2005 2006 Congress

Traffic Signals EPACT 2005 2005 2006 Congress

Source: Appliance Standards Awareness Project

Note:

[1] In addition to federal standards, some states have set their own standards, including for some appliances in which the 

federal standards don't yet exist.

Table 3. Lighting National Appliance Standards

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 38 of 129
35 

systems. The DOE “targeted both improved components, starting with the electricity-intensive 

refrigerator compressor, and computer tools for analyzing refrigerator design options. Early 

successes included a compressor system that achieved 44 percent efficiency improvement over 

the technology commonly used in refrigerators of the late 1970s.” 78

97. Subsequently, actions by many organizations collectively transformed the refrigerator 

market so that now the average new refrigerator uses less than 500 kWh per year, even though 

the average size of new refrigerators is larger than in 1973. 79 After the technological advances, 

these organizations created an innovative incentive for refrigerator manufacturers to conduct 

R&D targeted toward energy efficiency, called the Super Efficient Refrigerator Program 

(“SERP”). The first “Golden Carrot” program to be implemented in the U.S., SERP was a 

competition among refrigerator manufacturers designed to accelerate development and 

commercialization of super-efficient refrigerators. SERP featured a $30 million award, 

competitively given to the refrigerator manufacturer that could develop, distribute, promote, and 

sell the most energy-efficient, CFC-free refrigerator/freezer in the most cost-effective manner 

possible. 80 Whirlpool was the ultimate winner, and the SERP led to other efforts to combine 

federal R&D efforts with upstream manufacturing incentives. 81 

98. Once economically attractive reductions in energy use were possible, refrigerator 

manufacturers embedded this technology into some models they put on the market. Utilities, 

particularly those part of SERP, had promised to provide rebates in their service areas, thereby 

providing a market pull to increase market share for the winner. 82 

99. Once energy efficient refrigerators were successfully commercialized, the State of 

California imposed a sequence of appliance efficiency standards for refrigerators sold in 

 

78 “Energy Research at DOE, Was It Worth It? Energy Efficiency and Fossil Energy Research 1978 to 2000,” 

Committee on Benefits of DOE R&D on Energy Efficiency and Fossil Energy, Board on Energy and Environmental 

Systems, Division on Engineering and Physical Sciences, National Research Council, (Washington, DC: National 

Academy Press, 2001) pp. 95–96. 79 Sweeney, p. 23. 80 With consent of public utilities commissions, six utilities formed SERP Inc. for the Golden Carrot program and 

ultimately 18 other public and private utilities, in partnership with the EPA and environmental groups, joined the 

effort. The utilities promised to provide rebates in their service areas, thereby increasing the market share for the 

winner. Sweeney, p 140, fn. 19. 81 See National Renewable Energy Laboratory, NREL/TP-461-7281, “The Super Efficient Refrigerator Program: 

Case Study of a Golden Carrot Program,” July 1985, http://www.nrel.gov/docs/legosti/old/7281.pdf. 82 Sweeney, p. 141.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 39 of 129
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California. Additional private sector and public sector research was further motivated by these 

standards, and this research led to further efficiency improvements. 83 

100. In turn, those additional efficiency improvements led to even tighter California efficiency 

standards. Federal standards followed, each requiring lower electricity use than the previous 

standards. As a result of this combination of private sector and public sector actions, the average 

electricity consumption of a new refrigerator decreased 72% from 1973–2014. 84

101. Furthermore, the Energy Star voluntary program, described above, successfully 

encouraged manufacturers to market refrigerators that qualify for the Energy Star label in 

addition to those that just meet the minimum regulatory requirement. Energy Star has 

encouraged a significant fraction of buyers to purchase refrigerators carrying its label. 85

102. It was this combination of factors—technological advances funded by the DOE, advances 

by private sector refrigerator manufacturers aided by funding from utilities through state public 

utility commission-approved programs, appliance efficiency standards that progressively pushed 

and pulled newer technologies into the marketplace, and Energy Star labeling—that reversed the 

trend of annual increases in energy use by new refrigerators and led to the increases in energy 

efficiency. The net result has been a fundamental transformation of the refrigerator market and a 

substantial reduction in energy use for refrigeration. 

103. Finally, the federal government introduced tax credits and incentives for energy efficient 

buildings and technologies with the Energy Policy Act of 2005, and extended them under the 

Energy Improvement and Extension Act of 2008, the American Recovery and Reinvestment Act 

of 2009, and the Tax Increase Prevention Act of 2014. 86

 

83 Sweeney, p. 141. 84 Sweeney, p. 141. 85 Sweeney, pp. 141–142. 86 Sweeney, p. 151.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 40 of 129
37 

104. The various federal regulatory laws and tax incentives promoting energy efficiency are 

summarized in Table 4, below. That table shows that energy efficiency standards and tax 

incentives were signed into law by U.S. presidents in both Republican and Democratic 

administrations. In fact, all but one Republican and one Democratic president since the Ford 

administration signed such energy efficiency laws. 

B. Affirmative Policy Steps Encouraging Low Carbon Energy Sources

105. The federal government has also taken affirmative policy steps to facilitate the 

development and adoption of renewable energy sources, such as hydropower, wind, solar, and 

nuclear power, each of which produce very low carbon or zero-carbon energy. 

106. The federal government has continued its role as a major owner/operator of about onehalf of the total hydropower capacity in the U.S. 87 From 1990–2017, hydroelectric generation 

 

87 Federal Energy Regulatory Commission Report, “Hydropower Primer,” February 2017, 

https://www.ferc.gov/legal/staff-reports/2017/hydropower-primer.pdf.

Source: James L. Sweeney, Energy Efficiency: Building a Clean, Secure Economy (Stanford, CA: Hoover Institution Press, 

2016) 

Act/Action Year Key Provision President Party

Automobile Efficiency Standards

Energy Policy and Conservation Act (ECPA) 1975 First CAFE standards Gerald Ford R

Energy Policy and Conservation Act (ECPA) 2007 Allowed CAFE standards to be raised George W. Bush R

Administrative Action 2012 Raised CAFE standards Barack Obama D

Appliance Standards

Energy Policy and Conservation Act (ECPA) 1975 First Federal appliance efficiency standards Gerald Ford R

National Energy Conservation Policy Act 1978 Required manufacturer impact analysis Jimmy Carter D

National Appliance Energy Conservation Act 1987 Expanded regulatory authority Ronald Reagan R

Energy Policy Act 1992 Expanded regulatory authority George H.W. Bush R

Energy Policy Act 2005 Expanded regulatory authority George W. Bush R

Energy Independence and Security Act 2007 Lighting efficiency standards George W. Bush R

Tax Credits

Energy Policy Act 2005 Home energy efficiency standards George W. Bush R

Energy Policy Act 2005 Tax credit for energy efficient vehicles George W. Bush R

Energy Improvement and Extension Act 2008 Extended time of home efficiency tax credit George W. Bush R

American Recovery and Reinvestment Act 2009 Extended time of home efficiency tax credit Barack Obama D

Tax Increase Prevention Act 2014 Extended time of home efficiency tax credit Barack Obama D

Table 4. Selected Federal Efficiency Standards and Tax Credits

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accounted for about 8% of electricity generation in the U.S., varying from year-to-year based on 

precipitation. 88 

107. In the Pacific Northwest, hydroelectric projects provide a large percentage of power. For 

example, Bonneville Power Administration (“BPA”), a federal power marketing administration 

based in the Pacific Northwest, relies heavily on hydropower. 89 BPA is part of the DOE, but is 

self-funding and covers its costs by selling its products and services. 90 BPA markets wholesale 

electrical power from 31 federal hydroelectric projects in the Pacific Northwest, one nonfederal 

nuclear plant, and several small nonfederal power plants. 91 BPA provides about 28 percent of 

the electric power used in the Pacific Northwest and its resources—primarily hydroelectric—

make BPA power nearly carbon-free. 92

108. The federal government has continued to take affirmative policy steps to advance nuclear 

power, another very-low-carbon generator for electricity. A central organization is the DOE’s

Office of Nuclear Energy (“NE”). NE’s mission is “to advance nuclear power to meet the 

nation’s energy, environmental, and national security needs.” 93 

“Under the guidance of three research objectives, NE resolves barriers to technical, cost, 

safety, security, and proliferation resistance through early-stage research, development, 

and demonstration to: 

• Enhance the long-term viability and competitiveness of the existing U.S. reactor 

fleet.

• Develop an advanced reactor pipeline.

• Implement and maintain national strategic fuel cycle and supply chain 

infrastructure.” 

 

88 U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Tale 7.2b Electricity Net 

Generation: Electric Power Sector.

89 “About Us,” Bonneville Power Administration, undated, https://www.bpa.gov/news/AboutUs/Pages/default.aspx. 90 “About Us,” Bonneville Power Administration, undated, https://www.bpa.gov/news/AboutUs/Pages/default.aspx. 91 “About Us,” Bonneville Power Administration, undated, https://www.bpa.gov/news/AboutUs/Pages/default.aspx. 92 “About Us,” Bonneville Power Administration, undated, https://www.bpa.gov/news/AboutUs/Pages/default.aspx. 93 “About Us,” Office of Nuclear Energy, undated, https://www.energy.gov/ne/about-us, accessed August 11, 2018.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 42 of 129
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109. Nuclear power has provided about 20% of electrical generation in the U.S. since 1990, up 

from 4% in 1973. 94 That increase has been the result of post-R&D electric utility investments, 

sponsored in large part by the federal government. 95

110. The DOE has provided funding for the development of photovoltaic (solar) cells through 

industry, research groups, and national laboratories. In 1977 the federal government created the 

Solar Energy Research Institute (“SERI”), a federal facility dedicated to finding and improving 

ways to harness and use energy from the sun. In 1991, SERI was elevated to national laboratory 

status and renamed the National Renewable Energy Lab. 96

111. In 1999, the Office of Energy Efficiency and Renewable Energy launched the Wind 

Powering America Initiative, which sought to advance the development and use of wind energy 

throughout America. The program adopted two objectives: deliver 5% of the nation’s electricity 

from wind power by 2020, and deliver 5% of the federal government’s electricity purchases 

through wind power by 2010. 97

112. In 2011, the DOE’s Solar Energy Technologies Office (“SETO”) launched the SunShot 

Initiative with the objective of making solar electricity costs competitive with other generation 

sources by 2020, without subsidies. Meeting that goal would allow the private sector to 

implement broad-scale solar. In September 2017, SETO announced the utility-scale solar goal 

had been met three years ahead of schedule. SETO is continuing to work to lower the cost of 

solar energy, with the goal of cutting its cost in half by 2030. 98

113. New installations of wind and solar electricity generation capacity have grown greatly 

since 2010 as a result of actions by private sector entities within the U.S., by private and public 

sectors entities in other countries, by state and local governments, and by the federal 

government. In 2010, new installations of wind and solar capacity accounted for 28% of total 

 

94 U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Tale 7.2b Electricity Net 

Generation: Electric Power Sector.

95 “US Nuclear Policy,” World Nuclear Association, May 2018, http://www.world-nuclear.org/informationlibrary/country-profiles/countries-t-z/usa-nuclear-power-policy.aspx, accessed August 3, 2018. 96 “EERE Timeline,” Office of Energy Efficiency & Renewable Energy, undated, 

https://www.energy.gov/eere/timeline/eere-timeline. 97 “EERE Timeline,” Office of Energy Efficiency & Renewable Energy, undated, 

https://www.energy.gov/eere/timeline/eere-timeline. 98 “About the Solar Energy Technologies Office,” Solar Energy Technology Offices, undated, 

https://www.energy.gov/eere/solar/about-solar-energy-technologies-office, accessed August 3, 2018.

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new electricity generation capacity in the U.S., while coal accounted for 32% of new generation. 

In 2012 and 2013, wind and solar new capacity had grown to 50% and 34% of new electricity 

generation capacity, respectively, and coal had dropped to 16% and 10%. In 2015 and 2016, 

wind and solar new capacity had grown to 69% and 65% of new electricity generation capacity, 

respectively, and coal had dropped to zero in both years. Figure 7 shows these data, which are

published by the Solar Energy Industries Association. 99

 

99 “U.S. Solar Market Insight,” GTM Research, undated, https://www.seia.org/research-resources/solar-marketinsight-report-2016-year-review. Note that these data are based on generating capacity, not the amount of electricity 

that would be generated. Capacity factors of intermittent resources, wind and solar, are substantially lower than 

capacity factors of nuclear, natural gas, and coal facilities. A capacity factor is the ratio of actual production over a 

given time horizon, divided by the maximum possible (i.e., full capacity) production for the same period.

4% 8% 9%

27% 27% 30%

39%

36%

51%

31%

47% 43%

29%

29%

32%

10%

16%

10%

1%

24% 29%

41%

7%

25%

39%

26%

4% 3% 4% 9%

5% 3% 6%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2010 2011 2012 2013 2014 2015 2016

Solar Natural Gas Coal Wind Other

% Share of New 

Capacity Additions

Source: Solar Energy Industries Association Report, “Solar Market Insight Report 2016 Year In Review”

Note: Percentages shown may not sum to 100% due to rounding.

Figure 7. New U.S. Electricity Generating Capacity Additions

2010–2016 

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114. In 2015, the Obama administration announced the Clean Power Plan, which sought to cut 

GHG emissions from U.S. power stations by nearly one-third over 15 years. The Clean Power 

Plan also included provisions that would place significant emphasis on wind, solar, and other 

renewable energy sources. 100 The Supreme Court stayed implementation of the Clean Power 

Plan in February 2016, and the EPA under the Trump administration subsequently proposed to 

repeal the Clean Power Plan in 2017, citing concerns over the EPA’s regulatory authority and 

other policy concerns. 101 More specific to the policy concerns, the EPA stated that repealing the 

measure would “facilitate the development of U.S. energy resources and reduce unnecessary 

regulatory burdens associated with the development of those resources.” 102 This example 

illustrates the trade-offs that the executive branch and federal agencies consider when setting 

energy policy. 

115. Tax credits and federal funding for renewable energy use, research, and development 

have existed since the National Energy Act of 1978 and were expanded or extended under the 

Energy Security Act of 1980, the Energy Policy Act of 1992, the Energy Independence and 

Security Act of 2007, the Energy Improvement and Extension Act of 2008, and the American 

Recovery and Reinvestment Act of 2009. 103 

116. Since 1992, the U.S. has offered the production tax credit (“PTC”) to eligible renewable 

sources of electricity including wind and solar facilities. 104 Using data from Aldy et al. (2018) on 

wind farm construction, capacities, realized capacity factors, and PTC-eligibility, a back-of-theenvelope calculation shows that there were roughly $2 billion in PTC payments during the 2014 

 

100 “Climate Change: Obama Unveils Clean Power Plan,” BBC, August 3, 2015, http://www.bbc.com/news/worldus-canada-33753067, accessed August 3, 2018. 101 Lisa Friedman and Brad Plumer, “E.P.A. Announces Repeal of Major Obama-Era Carbon Emissions Rule,” New 

York Times, October 9, 2017, https://www.nytimes.com/2017/10/09/climate/clean-power-plan.html, accessed 

August 3, 2018.

102 Lisa Friedman and Brad Plumer, “E.P.A. Announces Repeal of Major Obama-Era Carbon Emissions Rule,” New 

York Times, October 9, 2017, https://www.nytimes.com/2017/10/09/climate/clean-power-plan.html, accessed 

August 3, 2018.

103 “History of Major Energy Policy Landmarks,” Department of Geography, Penn State, undated, https://www.eeducation.psu.edu/geog432/node/116, accessed August 11, 2018. See also House Resolution 6049, 110th Congress, 

2009.

104 26 U.S.C. § 45a. 

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calendar year for wind farms alone. 105 Accounting for solar, biomass, and other renewable 

production tax credits would increase this number. 106 

117. Renewable energy facilities that came online after January 1, 2009 can also elect to 

receive an investment subsidy (Section 1603 grant) in lieu of the PTC. 107 The Section 1603 

grants cover up to 30% of the investment costs of a new facility, and between 2009 and 2017 

payments have totaled over $26 billion. 108 This represents more than $3.25 billion on average 

each year.

118. Plaintiffs’ object to the subsidies paid for fossil fuel productions. However, a rough 

comparison of the subsidy per BTU (a quantity of heat) of renewable energy production to fossil 

fuel production shows that the renewable energy subsidy is more than twice as large. 

119. The Complaint lists $13.2 billion of production and consumption subsidies for fossil 

fuels. 109 In 2014, a total of 69.6 quadrillion BTUs were produced from fossil fuels in the U.S. 110 

Taking the $13.2 billion of subsidies listed in the Complaint as given and dividing it by 69.6 

quadrillion BTUs results in $0.19 of subsidies per million BTU (MBTU). For context, a gallon 

of gasoline has a heating value of 120,429 BTU; 111 8.3 gallons of gasoline have a heating value 

of a million BTU. Thus the average subsidy using the figure in the Complaint is about 2 cents 

per gallon of gasoline. 112 

120. Total renewable production (including hydroelectric, geothermal, and biomass 

production) was 11.14 quadrillion BTU. Adding together the roughly $2 billion in PTC

 

105 This is calculated taking into account the $23/MWh production tax credit, along with 423 PTC-eligible plants 

assuming an 81.15 MW average capacity per plant and a 0.34 average capacity factor for each plant. See Joseph E. 

Aldy et al., “Investment Versus Output Subsidies: Implications of Alternative Incentives for Wind Energy,” 

December 2016, Table 1. 106 2014 is the most recent data available in the Aldy et al. paper. See Joseph E. Aldy et al., “Investment Versus 

Output Subsidies: Implications of Alternative Incentives for Wind Energy,” December 2016.

107 Joseph E. Aldy et al., “Investment Versus Output Subsidies: Implications of Alternative Incentives for Wind 

Energy,” December 2016.

108 “Final Overview of the §1603 Program,” U.S. Treasury, March 1, 2018, 

https://www.treasury.gov/initiatives/recovery/Pages/1603.aspx.

109 Complaint, ¶¶173, 174. 110 U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Table 1.1 Primary Energy 

Overview.

111 The motor gasoline considered contains about 10% fuel ethanol by volume. “Energy Units and Calculations 

Explained,” U.S. Energy Information Administration.

https://www.eia.gov/energyexplained/index.php?page=about_energy_units, accessed August 11, 2018. 112 Note that ($0.19 / 1 MBTU) / (8.3 gallons / 1 MBTU) = $0.02 / gallon

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expenditure for wind power and the $3.25 billion annual average Section 1603 grant 

expenditures for renewables and dividing by total renewable production, one would arrive at 

$0.47 per million BTU. This does not include PTC expenditure for other renewable electricity 

sources besides wind power. These calculations err on the side of overestimating the relative 

size of the fossil fuel subsidy, and still show that renewable subsidies are over two times larger 

than fossil fuel subsidies on a per BTU basis. 113

C. CO2 from Fossil Fuel Production

121. Other actions by the federal government had the impact of reducing the amount of CO2

from fossil fuel production. 

122. One approach to reducing the impact of CO2 from fossil fuel production is carbon capture 

and storage (“CCS”). 114 CCS is an advanced concept which aims to reduce the CO2 emitted into 

the atmosphere by capturing it at the point it would otherwise be released, or by direct air 

capture. Since 1997, the DOE’s Office of Fossil Energy has run an active carbon storage 

program. 115 This program has significantly advanced the CCS knowledge base through a diverse 

portfolio of applied research projects: 116 

“The portfolio includes industry cost-shared technology development projects, university 

research grants, collaborative work with other national laboratories, and research 

conducted in-house through the National Energy Technology Laboratory’s Research and 

Innovation Center.

The primary focus of the Program going forward is on early-stage R&D to develop 

coupled simulation tools, characterization methods, and monitoring technologies that will 

improve storage efficiency, reduce overall cost and project risk, decrease subsurface 

uncertainties, and identify ways to ensure that operations are safe, economically viable, 

and environmentally benign. 

Key Program goals include: 

• Determining the CO2 storage resource potential of on and offshore oil, gas, and 

saline bearing formations 

 

113 In particular, I have only listed a few of the more well-known subsidies for renewable power investment and 

production and have not attempted to compile a comprehensive list of all renewable subsidies. 

114 Carbon capture and storage is also referred to as “carbon capture and sequestration.” 115 “Carbon Storage Research,” Department of Energy, https://www.energy.gov/fe/science-innovation/carboncapture-and-storage-research, accessed August 3, 2018. 116 “Carbon Storage Research,” Department of Energy, https://www.energy.gov/fe/science-innovation/carboncapture-and-storage-research, accessed August 3, 2018.

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• Improving carbon storage efficiency and security by advancing new and earlystage monitoring tools and models 

• Improving capabilities to evaluate and manage environmental risks and 

uncertainty through integrated risk-based strategic monitoring and mitigation 

protocols 

• Disseminating findings and lessons learned to the broader CCS community and 

key stakeholders.”

123. Three components 117—“Storage Infrastructure, Core Storage Research and Development, 

and Strategic Program Support”—“address significant technical challenges in order to meet 

program goals that support the scale-up and widespread deployment of CCS.” 

124. In 1975 President Ford signed a bill that repealed the percentage depletion allowance for 

large companies. 118 Elimination of the percentage depletion allowance for large companies 

reduces incentives for these companies to produce oil and gas. However, in 2005, President 

Bush signed the Energy Policy Act, which expanded the percentage depletion allowance to apply 

to a larger group of drillers. In 2013, the percentage depletion allowance provided an annual 

deduction of 15% of revenues from oil and gas wells, but only of independent producers and 

royalty owners. 119 It is not available for integrated companies. 120 The small independent 

producers of oil and gas, to which the percentage depletion allowance currently applies, account 

for just 19% of oil and 12% of natural gas production. 121 

 

117 “Carbon Storage Research,” Department of Energy, https://www.energy.gov/fe/science-innovation/carboncapture-and-storage-research, accessed August 3, 2018. 118 See “Congress Votes Largest Tax Cut in History,” CQ Almanac 1975 (Washington, DC: Congressional 

Quarterly, 1976), pp. 95–111, http://library.cqpress.com/cqalmanac/cqal75-1213141. “[Percentage] [d]epletion is a 

form of depreciation for mineral resources that allows for a deduction from taxable income to reflect the declining 

production of reserves over time.” “Percentage Depletion,” Energy Tax Facts, undated, 

http://energytaxfacts.com/wp-content/uploads/2017/10/Fact-Sheet-Percentage-Depletion.pdf. 119 “Percentage Depletion,” Energy Tax Facts, undated, http://energytaxfacts.com/wp-content/uploads/2017/10/FactSheet-Percentage-Depletion.pdf. 120 “Percentage Depletion,” Energy Tax Facts, undated, http://energytaxfacts.com/wp-content/uploads/2017/10/FactSheet-Percentage-Depletion.pdf. 121 “Percentage Depletion,” Energy Tax Facts, undated, http://energytaxfacts.com/wp-content/uploads/2017/10/FactSheet-Percentage-Depletion.pdf.

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D. Participation in International Climate Change Initiatives

125. Starting with the first “Earth Summit,” held in Rio de Janeiro in 1992, the U.S. has been 

engaged in international cooperation to address global climate change. 122 The stated objective of 

the United Nations Framework Convention on Climate Change (“UNFCCC”), signed by 

President George H. W. Bush and the leaders of 153 other nations, was “stabilization of 

greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous 

anthropogenic interference with the climate system.” 123 Not only did the U.S. participate in these 

meetings and sign the treaty, but it also took the lead in implementing its objectives. 124, 125

126. In 1997, the U.S. participated actively in the development of the Kyoto Protocol, with 

Vice President Al Gore personally attending the meetings and instructing the U.S. negotiating 

teams “to show increased negotiating flexibility if a comprehensive plan can be put in place, one 

with realistic targets and timetables, market mechanisms, and the meaningful participation of key 

developing countries.” 126 President Clinton signed the Kyoto Protocol in 1998, 127 but it was 

never ratified by the Senate.

127. The Kyoto Protocol put the obligation to reduce current emissions on developed countries 

and not on developing countries. Before the Kyoto Protocol had been negotiated, the U.S. 

Senate unanimously passed the Byrd–Hagel Resolution in July 1997. That resolution made it 

 

122 Sweeney, p. 85. 123 “United Nations Framework Convention on Climate Change,” United Nations, 1992, p. 4, 

https://unfccc.int/resource/docs/convkp/conveng.pdf. 124 George Bush, “Statement on Signing the Instrument of Ratification for the United Nations Framework 

Convention on Climate Change,” The American Presidency Project, October 13, 1992, 

http://www.presidency.ucsb.edu/ws/?pid=21611. See also James Brooke, “The Earth Summit; President, in Rio, 

Defends His Stand on Environment,” New York Times, June 13, 1992, 

https://www.nytimes.com/1992/06/13/world/the-earth-summit-president-in-rio-defends-his-stand-onenvironment.html, accessed August 6, 2018.

125 From 2016 – 2017, the United States was the largest contributor to the UNFCCC at 21%. See “Indicative Scales 

of contributions from parties to the Convention and the Kyoto Protocol for the biennium 2016-2017,” United 

Nations Climate Change Secretariat, December 2015, https://unfccc.int/sites/default/files/scale.pdf. For 1996-1997, 

the United States contribution was 25%. See “Report of the Conference of the Parties on Its First Session, Held at 

Berlin from 28 March to 7 April 1995,” United Nations Framework Convention on Climate Change, 1995, 

https://unfccc.int/resource/docs/cop1/07a01.pdf#page=44. 126 Al Gore, “Kyoto Climate Change Conference,” Clinton Whitehouse Archive, December 8, 1997, 

https://clintonwhitehouse3.archives.gov/WH/EOP/OVP/speeches/kyotofin.html, accessed August 3, 2018. See 

video at https://www.youtube.com/watch?v=oKRJAlT4dqw.

127 Laurie Goering, “Clinton Signs Pact on Global Warming,” Chicago Tribune, November 13, 1998, 

http://articles.chicagotribune.com/1998-11-13/news/9811130120_1_greenhouse-gas-emissions-greenhouse-gasesglobal-warming, accessed August 3, 2018.

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clear that the Senate would not ratify the Kyoto Protocol unless the agreement also mandated 

specific commitments from developing countries and would not ratify the Kyoto Protocol if it 

would result in serious harm to the U.S. economy. 128 

128. In this example, the outcome was based on the checks and balances built into the U.S. 

system of government. Although the president and vice president supported the Kyoto Protocol, 

the Senate did not. 

129. The U.S. has continued to participate in the Conference of the Parties (“COP”) of the 

UNFCCC. The COP is the annual decision-making body of the Convention. The delegates to 

the annual COPs review implementation of the UNFCCC and negotiate legal instruments and 

international agreements to implement the UNFCCC. 129

130. At the 2015 COP in Paris, the 185 national parties came to particularly significant 

agreements to curb CO2 and other GHG emissions and to mitigate impacts of global climate 

change. Each nation, including the U.S., committed to Nationally Determined Contributions 

(“NDCs”). The U.S. committed to “reduce its greenhouse gas emissions by 26-28 percent below 

the 2005 level in 2025, and to make ‘best efforts’ to reduce emissions by 28 percent.” 130 

131. President Obama signed the Paris Agreement in 2016. 131 However, he did not ask for 

Senate ratification. The White House asserted that the President has the legal authority to ratify 

the accord without a Senate vote, arguing that the Paris Agreement was merely an “executive 

agreement.” 132

132. On June 1, 2017 President Trump announced that the U.S. would cease all participation 

in the Paris Agreement. President Trump stated that “[t]he Paris accord is very unfair at the 

 

128 Senate Resolution 98, 105th Congress, 1997. 129 “Becoming a UNFCCC delegate: what you need to know,” International Institute for Environment and 

Development, 2016, p. 10, http://pubs.iied.org/pdfs/17385IIED.pdf, accessed August 3, 2018. 130 “What is the U.S. Commitment in Paris?” State of the Planet, December 11, 2015, 

http://blogs.ei.columbia.edu/2015/12/11/what-is-the-u-s-commitment-in-paris/, accessed August 3, 2018. 131 Tanya Somanader, “President Obama: The United States Formally Enters the Paris Agreement,” Obama 

Whitehouse Archives, September 3, 2016, https://obamawhitehouse.archives.gov/blog/2016/09/03/president-obamaunited-states-formally-enters-paris-agreement, accessed August 3, 2018. 132 Valerie Richardson, “White House Defends Obama Evading Senate on Paris Climate Deal,” Washington Times, 

August 29, 2016, https://www.washingtontimes.com/news/2016/aug/29/obama-will-bypass-senate-ratify-parisclimate-acco/, accessed August 3, 2018.

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highest level to the United States.” 133 At the time he announced plans to withdraw from the Paris 

accord, President Trump also stated an intent to seek to renegotiate that agreement on terms more 

favorable to the U.S. 134 He went on to state: “The Paris accord will undermine our economy,” 

and that it “puts us at a permanent disadvantage.” 135

133. This example underscores the tensions between economic and climate goals. One 

president took actions consistent with placing more emphasis on the fundamental environmental 

objective in signing the Paris Agreement, but did not ask the Senate whether it would ratify the 

agreement. The next president took actions consistent with placing more emphasis on the 

fundamental economic goals.

E. The Federal Government Has Adopted Complex Energy Policy Strategies to 

Address Multiple Policy Goals

134. Various U.S. presidents have had complex energy policy strategies that include multiple 

actions and policy instruments to reduce climate change, maintain security, and promote the 

economy, balancing the three objectives. 

135. Most recently, President Obama, in his 2013 State of the Union address, reviewed U.S. 

energy progress since he had taken office and described an “all-of-the-above” approach for 

further progress. The accompanying White House Fact Sheet described the impacts of the “allof-the-above” approach on the economy, energy security and the environment: 136

“Since President Obama took office, oil and gas production has increased each year, 

while oil imports have fallen to a 20-year low; renewable electricity generation from 

wind, solar, and geothermal sources has doubled; and our emissions of the dangerous 

carbon pollution that threatens our planet have fallen to their lowest level in nearly two 

decades. In short, the President’s approach is working. It’s a winning strategy for the 

economy, energy security, and the environment.” 

 

133 Bamini Chakraborty, “Paris Agreement on Climate Change: US Withdraws as Trump Calls it ‘Unfair,’” Fox 

News, June 1, 2017, http://www.foxnews.com/politics/2017/06/01/trump-u-s-to-withdraw-from-paris-climate-pactcalls-it-unfair-for-america.html, accessed August 3, 2018. 134 Michael D. Shear, “Trump Will Withdraw U.S. from Paris Climate Agreement,” New York Times, June 1, 2017, 

https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html, accessed August 13, 2018. 135 Bamini Chakraborty, “Paris Agreement on Climate Change: US Withdraws as Trump Calls it ‘Unfair,’” Fox 

News, June 1, 2017, http://www.foxnews.com/politics/2017/06/01/trump-u-s-to-withdraw-from-paris-climate-pactcalls-it-unfair-for-america.html, accessed August 3, 2018. 136 White House Press Release, “Fact Sheet: President Obama’s Blueprint for a Clean and Secure Energy Future,” 

March 15, 2013, https://www.whitehouse.gov/the-press-office/2013/03/15/fact-sheet-president-obama-s-blueprintclean-and-secure-energy-future, accessed August 3, 2018.

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136. This “all-of-the-above” approach, taking into account impacts on the economy, energy 

security, and the environment, has remarkable parallels to the Project Independence Report and 

the many actions from President Ford’s administration, such as legislatively creating the CAFE

standards for light duty cars and trucks. 

137. President George W. Bush was very explicit in describing the overall strategy of his 

administration. In announcing his “Clear Skies and Global Climate Change Initiatives,” he 

summarized his approach to addressing global climate change, an approach that stressed a 

positive relationship between economic growth and creating instruments to protect the 

environment: 137

“Addressing global climate change will require a sustained effort, over many generations. 

My approach recognizes that sustained economic growth is the solution, not the problem 

– because a nation that grows its economy is a nation that can afford investments in 

efficiency, new technologies, and a cleaner environment.” 

138. In his announcement, President George W. Bush proposed a set of specific actions in 

support of his overall strategy, actions that for the most part were implemented: 138

• New 10 Percent Tax Credit for Co-Generation (Combined Heat and Power 

Systems). The President has proposed a new 10 percent tax credit for investments in 

combined heat and power systems between 2002 and 2006.... 

• First-Ever Tax Credit for Residential Solar Energy Systems. The President has 

proposed a new 15 percent tax credit for individuals who purchase photovoltaic 

equipment or solar water heating systems used in a residence, up to a maximum credit of 

$2,000 for each type of equipment.... 

• Expanded Tax Credit for Electricity Produced from Wind or Biomass. The 

President has proposed extending and modifying the tax credit for electricity produced 

from wind or biomass.... 

• Tax Credit for New Methane Landfill Projects. The President has proposed 

encouraging the development of a new alternative source of energy by providing tax 

credits for energy produced from landfill gas.... 

• New Tax Credit for New Hybrid or Fuel-Cell Vehicles. The President has proposed 

a new temporary tax credit of up to $4,000 for the purchase of new hybrid vehicles and 

up to $8,000 for the purchase of fuel cell vehicles between 2002 and 2007.... 

 

137 White House Press Release, “Global Climate Change Policy Book,” 2002, https://georgewbushwhitehouse.archives.gov/news/releases/2002/02/climatechange.html, accessed August 3, 2018.

138 White House Press Release, “Global Climate Change Policy Book,” 2002, https://georgewbushwhitehouse.archives.gov/news/releases/2002/02/climatechange.html, accessed August 3, 2018.

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• Increased Funding for Geothermal Energy. The President’s 2003 budget proposal 

for the U.S. Geological Survey (USGS) supports alternative, non-fossil fuel energy 

development.... 

• Increased Funding for Renewable Energy Resources on Public Lands. The 

President’s ‘03 budget proposal calls for a major effort by the Bureau of Land 

Management (BLM) to increase its renewable energy activities in support of the 

President’s National Energy Policy.... 

• EPA’s ‘Climate Leaders’ Initiative: EPA will launch a new, voluntary Climate 

Leaders program with a group of major companies.... 

• Business Challenges. The President challenges American businesses and industries to 

reduce emissions....

• Transportation Programs. The Administration is promoting the development of fuelefficient motor vehicles and trucks, researching options for producing cleaner fuels, and 

implementing programs to improve energy efficiency.... 

• Carbon Sequestration. The President’s FY ‘03 budget requests over $3 billion ... as 

the first part of a ten year (2002-2011) commitment to implement and improve the 

conservation title of the Farm Bill, which will significantly enhance the natural storage of 

carbon....

VIII. Many Policy Options Suggested in the Complaint Have Been Implemented

139. Plaintiffs complain that many particular policy initiatives favored by Plaintiffs have not 

been accepted by Congress or federal administrations. For example, Plaintiffs very early in their 

complaint assert that policy initiatives proposed in the EPA study, Policy Options To Stabilizing 

Global Climate (the “EPA Study”) were not adopted: 139

“The United States Environmental Protection Agency (‘EPA’) in 1990 and the 

Congressional Office of Technology Assessment in 1991 prepared plans to significantly 

reduce our nation’s CO2 emissions, stop global warming, and stabilize the climate system 

for the benefit of present and future generations. 

... 

Defendants never implemented either plan.” 

140. In fact, many of the recommendations in the EPA Study were implemented by the federal 

government, contrary to Plaintiffs’ assertion.

 

139 Complaint, ¶3.

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141. Much of the EPA Study argues the importance of energy efficiency and reducing the CO2 

emissions from what they would be otherwise. 140 The federal government has implemented 

many energy efficiency programs designed to accomplish precisely these goals. In fact, energy 

efficiency has been fundamental to the objectives articulated in the EPA Study and has led to 

large decarbonization of the U.S. economy. 

142. The EPA Study suggests that the U.S. conduct R&D for solar technology, designed to 

make solar more cost-effective. 141 The U.S. has done exactly that. Solar and wind have become 

more cost-effective and have been implemented in greater quantities over time by market 

participants. In 2015 and 2016, roughly two-thirds of the new installed electricity generation 

capacity was wind or solar. 142

143. The EPA Study also suggests that the U.S. expand use of natural gas as a substitute for 

coal in generating electricity. 143 That is exactly what has been happening over the last decade 

and has contributed importantly to continuing decarbonization of the U.S. energy supply. 144

144. The EPA study further suggests as an option that the U.S. continue to promote nuclear 

power as a clean energy alternative. 145 The federal government has done just that, continuing to 

fund R&D and a broad range of programs to promote nuclear power. 146 

145. As another example, Plaintiffs’ expert Professor Eric Rignot recommends that the U.S. 

Defendants be ordered to “take strong steps to increase the U.S. capacity for carbon 

sequestration.” 147 This option is already being developed through the DOE. 148 Carbon capture 

and storage (carbon capture and sequestration) technologies have been successfully implemented 

in some limited applications, but whether such technologies can be scaled effectively is open to 

 

140 “Policy Options For Stabilizing Global Climate,” U.S. Environmental Protection Agency Report, 1990, pp. V76–

77.

141 “Policy Options For Stabilizing Global Climate,” U.S. Environmental Protection Agency Report, 1990, p. 29. 142 See Figure 7. 143 “Policy Options For Stabilizing Global Climate,” U.S. Environmental Protection Agency Report, 1990, p. 34. 144 See Figure 6. 145 “Policy Options For Stabilizing Global Climate,” U.S. Environmental Protection Agency Report, 1990, p. 31. 146 See Section VII.B. 147 Expert Report of Eric Rignot, Ph.D., filed April 11, 2018 (“Rignot Report”), p. 19. 148 “Carbon Storage Research,” Department of Energy, https://www.energy.gov/fe/science-innovation/carboncapture-and-storage-research, accessed August 3, 2018.

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question. 149 As discussed above, the DOE has multiple programs to promote carbon capture and 

sequestration and has significantly advanced the knowledge base in order to increase the U.S. 

capacity for carbon sequestration.

IX. Policy Initiatives Demanded by Plaintiffs’ Experts Have Been Considered, Debated, 

and Rejected by Congress or Federal Administrations

146. As shown above, the federal government has taken many steps to promote energy 

efficiency and renewable energy. Although these approaches may not have been the policy 

instruments that some of Plaintiffs’ experts prefer, they have been effective in reducing GHG

emissions from what they would otherwise have been. 150 There are cases in which the federal 

government has considered and ultimately did not pursue the policies Plaintiffs suggest. 

147. In particular, Professor Stiglitz states that the federal government should impose a carbon 

tax in order to create incentives for private firms and individuals to emit less CO2. 151 Legislators 

and the executive branch agencies have proposed and debated but rejected policy incentives that 

would have mitigated GHGs through putting a price on carbon emissions or a tax on energy from 

fossil fuels, as I discuss in subsequent paragraphs. 

148. In what follows, I summarize attempts by federal policy makers to use such a carbon 

pricing strategy, as advocated by Professor Stiglitz. The extended consideration of carbon 

pricing provides an example of the energy policy balancing act—either other objectives have 

received greater weight than environmental objectives or other instruments, such as direct 

regulations on energy efficiency or R&D initiatives, have been favored by federal policy makers. 

149. In early 1993, the Clinton administration proposed a tax on producers, refiners, and 

transporters of nonrenewable energy sources, with the tax based on the amount of BTU used. 

 

149 “Carbon Storage Research,” Department of Energy, https://www.energy.gov/fe/science-innovation/carboncapture-and-storage-research, accessed August 3, 2018. 150 See Figures 4, 5, and 6 as well as the discussion in Section VI. 151 I also have publicly advocated and still advocate in favor of creating incentives for private sector firms and 

individuals to reduce GHG emissions, through carbon pricing, either a carbon tax or a cap-and-trade system. Stiglitz 

Report, ¶45.

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Accordingly, the tax was known as the “BTU tax.” 152 President Clinton argued that the

incentives associated with the tax would encourage energy conservation, reduce pollution, and 

lessen U.S. dependence on foreign oil, 153 and that it was the fairest and most environmentally 

sound way to raise revenue in order to lower the budget deficit. 154 Opponents argued that such a 

tax would make energy-intensive industries, such as petrochemicals, steel, and glass, less 

economically competitive in international markets and thereby would harm the U.S. economy. 155 

Analysts believed that the BTU tax would have, on average, raised electricity prices for 

consumers by 30%. 156 The BTU tax, it was believed, would create incentives leading to security 

and environmental benefits but would have negative economic consequences. The tax was 

approved by the House of Representatives (“House”), but later abandoned after it did not receive 

a majority vote in the Senate. 157 

150. A second class of carbon pricing policy measures would create incentives to limit GHG

emissions through a cap-and-trade system. This system would set an economy-wide limit, or 

cap, on GHG emissions each year, and the cap would decline over time. The government would 

issue allowances, each allowing a company to emit one ton of CO2. Allowances could be 

distributed free of charge, auctioned off, or otherwise sold. Firms would be required to surrender 

allowances equal to the number of tons of CO2 they emitted. Firms could buy and sell the 

allowances on markets, possibly futures markets, in which the price of the allowances would be 

determined by market forces. The price on the allowances—the carbon price—would provide 

 

152 Steven Greenhouse, “Clinton’s Economic Plan: The Energy Plan; Fuels Tax: Spreading the Burden,” New York 

Times, February 18, 1993, https://www.nytimes.com/1993/02/18/us/clinton-s-economic-plan-the-energy-plan-fuelstax-spreading-the-burden.html, accessed August 3, 2018. 153 David S. Hilzenrath, “Miscalculations, Lobby Effort Doomed BTU Tax Plan,” Washington Post, June 11, 1993,

https://www.washingtonpost.com/archive/business/1993/06/11/miscalculations-lobby-effort-doomed-btu-taxplan/d756dac3-b2d0-46a4-8693-79f6f8f881d2/?noredirect=on&utm_term=.0283a25da88e, accessed August 3, 

2018. 154 David Rosenbaum, “Clinton Backs Off Plan for New Tax on Heat in Fuels,” New York Times, June 9, 1993, 

https://www.nytimes.com/1993/06/09/us/clinton-backs-off-plan-for-new-tax-on-heat-in-fuels.html, accessed August 

3, 2018. 155 David Rosenbaum, “Clinton Backs Off Plan for New Tax on Heat in Fuels,” New York Times, June 9, 1993, 

https://www.nytimes.com/1993/06/09/us/clinton-backs-off-plan-for-new-tax-on-heat-in-fuels.html, accessed August 

3, 2018. 156 Ted Nordhous and Michael Shellenberger, “Getting Real on Climate Change,” The American Prospect, 

December 2008, https://thebreakthrough.org/blog/PDF/Getting%20Real%20on%20Climate%20Change.pdf. 157 David S. Hilzenrath, “Miscalculations, Lobby Effort Doomed BTU Tax Plan,” Washington Post, June 11, 1993,

https://www.washingtonpost.com/archive/business/1993/06/11/miscalculations-lobby-effort-doomed-btu-taxplan/d756dac3-b2d0-46a4-8693-79f6f8f881d2/?noredirect=on&utm_term=.0283a25da88e, accessed August 3, 

2018.

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companies incentives to reduce emissions whenever the cost of reduction would be lower than 

the price of allowances.

151. Cap-and-trade systems were first proposed legislatively by the Climate Stewardship Act 

of 2003 (McCain-Lieberman), which failed to pass the Senate. 158 The Bush administration 

argued that the bill would lead to job losses and that “the administration instead is promoting fuel 

and appliance efficiency standards and building codes that will conserve energy.” 159 In fact, as 

discussed above, the administration was taking such steps. Later McCain-Lieberman bills would 

also fail to pass the Senate when they were reintroduced in 2005 and 2007. 160 More recently, the 

House passed the American Clean Energy and Security Act of 2009, but the bill failed to pass the 

Senate, with statements of economic concerns. 161 The ongoing recession was said to add to 

many Americans’ long-term economic uncertainty or fear, making it much more difficult to pass 

clean energy and global warming legislation. 162 Economic issues, especially issues of impacts on 

particular industries and regions of the country, were given high priority by the administration 

and Congress. 

152. Recently, two bills were introduced in the House in 2015. H.R. 972 was a cap-and-trade 

system that included a provision that the revenues be returned as dividends to taxpayers. 163 H.R. 

1027 was a “cap-and-dividend” system, essentially a cap-and-trade system in which all 

allowances would be auctioned and in which all auction revenues would be returned to each U.S.

resident with a valid social security number. 164 Neither of these bills went any further than their 

referrals to the Subcommittee on Energy and Power. 

153. A third class of policy measures to limit GHG emissions is carbon taxes. Such plans 

would typically set a tax on the production or first importation of products whose use would 

release CO2 into the atmosphere. The tax would be proportional to the carbon content of the 

 

158 Senate Resolution 139, 108th Congress, 2003. 159 Juliet Ellperin, “U.S. Firms Look Ahead to Emissions Cuts Overseas,” Washington Post, October 3, 2004, 

http://www.washingtonpost.com/wp-dyn/articles/A2936-2004Oct2.html, accessed August 3, 2018. 160 Senate Resolution 1151, 109th Congress, 2005; see also Senate Resolution 280, 110th Congress, 2007. 161 Bryan Walsh, “Why the Climate Bill Died,” Time, July 26, 2010, http://science.time.com/2010/07/26/why-theclimate-bill-died/, accessed August 3, 2018. 162 Daniel J. Weiss, “Anatomy of a Senate Climate Bill Death,” Center for American Progress, October 12, 2010, 

available at https://www.americanprogress.org/issues/green/news/2010/10/12/8569/anatomy-of-a-senate-climatebill-death, accessed August 3, 2018. 163 House Resolution 972, 114th Congress, 2015. 164 House Resolution 1027, 114th Congress, 2015.

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product. Typically, the products included would be coal, petroleum, or natural gas. The 

revenues collected by the tax could be added to the general fund, returned to taxpayers 

(“recycled”), or could allow reductions in other taxes. 

154. The first bill proposing a carbon tax was H.R. 4805, authored by Representative Fortney 

Pete Stark in 1990. He made similar proposals in 1991 (H.R. 1086) and 1993 (H.R. 804). 

Opponents offered H.R. 438, to express the sense of the House that no such carbon taxes should 

be imposed. All of the bills were referred to the House Ways and Means committee. They made 

it no further in the legislative process. 165

155. Carbon tax bills continued to be introduced periodically into Congress, but none received 

enough support to become law. Recent bills were introduced in the Senate and in the House in 

2015. H.R. 309, H.R. 2202, and H.R. 4283 were introduced in the House and referred to various 

committees. S.1548 and S.2399 were introduced in the Senate and referred to the Committee on 

Finance. None of these bills received enough support to advance further. 166

156. Such carbon tax proposals are still (as of July 2018) being considered. Press reports 

assert that “Rep. Carlos Curbelo (R-Fla.) is preparing to introduce legislation that would pause 

federal regulations on climate change in exchange for an escalating tax on carbon emissions....” 

The article goes on to say: “...GOP opponents are already targeting it as anathema to Republican 

principles on economic growth. The House Rules Committee is meeting today on whether to 

allow a vote on a resolution that calls carbon taxes ‘detrimental’ to the economy.” 167 The 

proposal and the opposition again show the conflict between economic objectives and 

environmental objectives. 168

 

165 House Resolution 4805, 101st Congress, 1990; House Resolution 1086, 102nd Congress, 1991; House 

Resolution 804, 103rd Congress, 1993; “Know the Legislation,” Price on Carbon, 

https://priceoncarbon.org/business-society/history-of-federal-legislation/, accessed August 3, 2018. 166 House Resolution 309, 114th Congress, 2015; House Resolution 2202, 114th Congress, 2015; House Resolution 

4283, 114th Congress, 2015; Senate Resolution 1548, 114th Congress, 2015; Senate Resolution 2399, 114th 

Congress, 2015. 167 Zack Colman and Nick Sobczyk, “House Republican Will Introduce $23 Carbon Tax Next Week,” eenews.net, 

July 17, 2018, https://www.eenews.net/climatewire/2018/07/17/stories/1060089315, accessed August 6, 2018.

168 A much more complete discussion of cap-and-trade or carbon tax is the web site: “Price on Carbon,” 

https://priceoncarbon.org/. In particular, the web page “Know the Legislation,” provides a much more complete 

discussion of legislative attempts to put a price on carbon through a cap-or-trade system or a carbon tax. See “Know 

the Legislation,” Price on Carbon, https://priceoncarbon.org/business-society/history-of-federal-legislation/, 

accessed August 3, 2018.

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157. A review of the past legislative history makes it clear that Congress has actively 

considered these alternative proposals to place a tax on carbon and has done so many times since 

1990. Many bills were introduced and considered in committees. Some were voted on the floor 

of the House or Senate. But none received the required votes to be passed by both the House and 

the Senate. The class of policy instruments advocated by Professor Stiglitz has been considered 

many times by federal policy makers and has, so far, been rejected. 

158. The potential consequences of these proposals have been discussed in the economic 

literature and presumably have been understood by members of Congress and past 

administrations. The U.S. Congress has not chosen to make the changes proposed by Plaintiffs. 

Plaintiffs’ experts are thus asking the Court to override the trade-offs that have been made 

deliberately in the legislative processes. 

X. There Is an Important Economic Distinction between the Federal Government’s 

Direct Emissions and the Federal Government’s Role and Potential Role as 

Regulator of Third-Party Emissions 

159. Plaintiffs assert that the federal government has not caused the U.S. economy to reduce 

emissions of GHG as much as the federal government should have. 169 There is an important 

economic distinction to make between the direct emissions of the federal government and the 

federal government’s role in regulating the emissions of third parties such as companies, 

individuals, and state and local governments. The federal government directly controls its own 

emissions, but does not control the conduct of third parties. As a result, the federal government 

 

169 Complaint, ¶98, Hansen Report, pp. 3–4, and Speth Declaration ¶10.

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must rely on either command-and-control mandates or a system of regulations that create 

incentives to induce third parties to engage in the conduct it desires. 

160. The vast majority of GHG emissions in the U.S. come from activities of private sector 

firms, individual residents of the U.S., and state and local governments from consumption and 

production activities, such as driving cars and trucks, growing and transporting food, lighting and 

heating their homes and offices, manufacturing goods and services. 170 Figure 8 shows the 2016 

estimate of these various sources. Importantly, only a very small fraction of these sources is 

directly controlled by the federal government. For example, electricity generation is primarily 

regulated by states, with limited direct oversight by the federal government. Transportation is 

dominantly cars and trucks purchased and driven by individuals or businesses. The federal 

 

170 As I discuss in Section XI, the direct emissions of the Federal government are a small proportion of U.S. 

emissions. 

Transportation

28%

Electricity generation

28%

Industry

22%

Agriculture

9%

Commercial

6%

Residential 5% Other 1%

Source: U.S. Environmental Protection Agency, 2018, “Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2016.” 

Note: Other refers to “U.S. Territories” in the EPA dataset.

Figure 8. Sources of Greenhouse Gas Emissions in the U.S.

2016 

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government has passed laws (CAFE standards) creating minimum fuel economy standards, but 

does not regulate how much anyone drives or rides in a vehicle. Most aircraft passenger-miles 

are provided by private sector airlines. 

161. The federal government does not directly control the actions of these third parties. 

Therefore, reducing emissions by third parties would require providing incentives for third 

parties to choose actions that emit less. From an economics perspective, even banning emissions 

(a form of direct mandate) can be viewed as providing a (dis)incentive. Given the (dis)incentives 

of choosing certain actions, private entities will weigh the benefits of emitting against the 

potential costs. Costs under an emissions ban would include the penalties associated with 

emitting taking into account the likelihood of getting caught. Bans come with their own costs 

such as potentially generating black markets for the banned goods and requiring enforcement by 

the government. Before instituting a ban (or other form of (dis)incentive), it is important to 

consider the costs and benefits of the intervention. 

162. As an example, I examine some of the economic considerations associated with fossil 

fuel production, distinguishing between the direct decisions of the federal government and the 

federal government’s role in regulating third parties.

163. Plaintiffs state that the federal government has allowed “excessive” production of fossil 

fuels from federal lands 171 and that the federal government has allowed, permitted, and 

subsidized production of fossil fuels in the U.S. by private sector firms and individuals on lands 

owned by private parties. 172 Although Plaintiffs emphasize the negative externalities, judgments 

about the appropriate amount of fossil fuel production depends on a comparison of the benefits 

and costs. Plaintiffs appear to have not examined this balance.

164. There is an economic benefit to the U.S. of producing these natural resources. First, 

these fossil fuels are used by private sector firms, individual residents of the U.S., and state and 

local governments, among others, who value use of the fossil fuels. If these fuels are not 

available, these users would derive the value from fossil fuels produced elsewhere or would not 

 

171 Complaint, Section II. B. Note that the majority of each of the fossil fuels was not produced on federal lands. In 

2016, 24% of the crude oil was produced on federal lands, 14% of the natural gas, and 40% of the coal. See 

National Resources Revenue Data, U.S. Department of the Interior, https://revenuedata.doi.gov/explore/, accessed 

August 3, 2018.

172 Complaint ¶110–112. 

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derive that value at all. For example, users would either need to substitute towards more 

expensive or inconvenient forms of transportation, manufacturing, space heating, etc. or to forgo 

these end uses of energy altogether. Second, production of these fossil fuels provides jobs, 

particularly in some regions facing only limited employment options. Third, production of these 

fossil fuels provides profit for the producing firms. Fourth, production of these fossil fuels 

provides revenues to the federal government in the form of bonus bids, royalties, and taxes. 

Finally, production of fossil fuels decreases energy imports into the U.S. and thus reduces U.S. 

vulnerability to energy supply disruptions, thereby enhancing national security. 

165. Subtracting from the economic benefits are the economic costs, particularly the 

environmental externalities associated with fossil fuel production and use. 

166. Stopping production would have negative consequences, including economic losses to 

regions of the country, individuals, and industries, and a loss of revenues captured by the 

government. Reducing crude oil production could be expected to increase the price of crude oil 

and gasoline, leading to a redistribution of wealth from both the developing and developed oilimporting countries to the oil exporting countries (and in many cases, to their rulers.) Reducing 

natural gas production could be expected to increase the price of electricity. These cost increases 

would have negative income impacts on consumers of gasoline, electricity, and other energy. 

Stopping production would lead to job losses, concentrated in energy producing areas of the 

U.S., some of which have only limited employment options. It would lead to increased imports 

of energy with the resulting reductions in national security. Stopping production implies that the 

federal government would have to either increase taxes to cover the losses, reduce the provision 

of federally provided services, or increase the national debt. 

167. These consequences have been valued differently by different segments of the U.S. 

population. Federal administrations have had the opportunity to expand or contract the federal 

leasing, based on their judgments of the array of consequences. Congress has the opportunity of 

influencing the nature and extent of leasing. But given the very negative consequences of halting 

production, I have not found it surprising that there has been a consistent policy of using the 

natural resources, including for the production of fossil fuels. 

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168. Plaintiffs ask that the Court “order Defendants to cease their permitting, authorizing, and 

subsidizing of fossil fuels....” 173 Plaintiffs have made this recommendation but apparently have 

not laid out the negative consequences, including economic losses to regions of the country, 

individuals, and industries, the loss of revenues captured by the government, and the national 

security reductions. 

XI. Plaintiffs and Their Experts Fail to Establish that the Acts of the Federal 

Government Caused Their Alleged Injuries

169. In this section I turn from U.S. energy policy and the merits of Plaintiffs’ allegations 

regarding U.S. energy policy to Plaintiffs’ theory of harm. 

170. Plaintiffs allege that their injuries were caused by three elements of Defendants’ alleged 

conduct (the “conduct at issue”), each of which caused GHG emissions to increase: 

(i) the U.S. government’s consumption of fossil fuels; 

(ii) Defendants’ affirmative regulatory acts (e.g., tax subsidies for fossil fuel 

production, permits for extraction of fossil fuels from public lands, and other 

measures), which increased the supply of fossil fuels available for purchase and 

consumption by entities other than the federal government; and 

(iii) Defendants’ alleged failure to develop policies to eliminate the use of fossil fuels 

and mitigate GHG emissions by entities other than the federal government. 

171. I show in this section that Plaintiffs fail to establish a causal link from the conduct at 

issue to the injuries they allege. Plaintiffs attribute their injuries to the conduct at issue, but 

ignore the fact that at least 96% of cumulative global CO2 emissions since 1990 — the root cause 

of rising atmospheric CO2 concentrations and climate change effects that purportedly lead to 

Plaintiffs’ alleged injuries — are associated with fossil fuel consumption unrelated to the 

conduct at issue. 174

 

173 Complaint, ¶12. 174 For purposes of rebuttal, I assume arguendo that the conduct at issue began as of 1990. Global CO2

concentration as of 1990 was approximately 350 ppm, the level that Plaintiffs propose in their request for relief. See 

Complaint, ¶259. Further, in terms of the expectation that the government should have known and should have 

made policy based on its knowledge, 1990 is a reasonable date. Professor Hansen published his seminal climate 

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a. Countries other than the U.S. accounted for 79% of cumulative energy-related CO2

emissions from 1990 to 2015. 175

b. The remaining 21% of global CO2 emissions during that period occurred in the 

United States. A large majority of these emissions were not caused by the conduct at 

issue.

c. CO2 emissions caused directly by the government through its consumption of fossil 

fuels comprise approximately 0.25% of global CO2 emissions. Thus approximately 

99.75% of global energy-related CO2 emissions were caused by countries other than 

the United States, or by entities in the United States other than the Federal 

government. 

d. I estimate that CO2 emissions caused by all of the conduct at issue, including 

emissions allegedly caused directly by Defendants, emissions allegedly caused by 

Defendants’ affirmative policy acts, and emissions allegedly caused by Defendants’ 

alleged failure to act, comprise no more than 4% of global emissions. Note that this 

figure includes emissions from the actions of entities in the U.S. other than the 

federal government, including private sector firms, individual residents of the U.S.,

and state and local governments. Thus at least 96% of global emissions were caused 

by (i) countries other than the U.S., or (ii) fossil fuel consumption by entities other 

than the federal government that would have occurred absent Defendants’ conduct at 

issue. 

 

change paper in 1981 and testified before the U.S. Senate in 1988 and 1989, and the EPA published a study of

climate stabilization options (“Policy Options for Stabilizing Global Climate”) in 1990. See Hansen Report, pp. 12-

13, 16 and Complaint, ¶3. Plaintiffs claim that a 1965 report published by the White House (“Restoring the Quality 

of Our Environment”) is a further example of the “extensive knowledge Defendants have had about the dangers they 

caused to present and future generations.” See Complaint, ¶6. However, the White House Report also conveys a 

great deal of uncertainty and does not appear to be a sufficiently strong foundation to dictate energy policy. For 

example, the report states that “the increase in atmospheric CO2 ... may be sufficient to produce measurable changes 

in climate,” but that “at present it is impossible to predict these effects quantitatively,” and that “even today, we 

cannot make a useful prediction concerning the magnitude or nature of the possible climatic effects.” See 

“Restoring the Quality of Our Environment,” The White House, 1965, pp. 114, 126, 127. 175 U.S. Energy Information Administration, International Energy Statistics. Plaintiffs state that “[b]etween 1751 

and 2014, the United States has been responsible for emitting 25.5% of the world’s cumulative CO2 emissions.” 

Complaint, ¶151. Defendants have stated that “from 1850 to 2012, CO2 emissions from sources within the United 

States (including from land use) comprised more than 25 percent of cumulative global CO2 emissions.” See 

Answer, ¶151.

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172. Finally, I conclude that Plaintiffs fail to establish a causal link between their alleged 

injuries and climate change effects allegedly caused by the conduct at issue. I conclude that 

factors other than the conduct at issue are the primary causes of the climate change effects that 

the Plaintiffs allege to have caused injuries. 

A. Plaintiffs and Their Experts Fail to Establish Causation

173. Plaintiffs and their experts appear to attribute their alleged injuries solely and exclusively 

to the alleged conduct at issue. However, many factors other than the conduct at issue have 

contributed to a higher atmospheric CO2 concentration and consequent climate change effects. 

Given this, Plaintiffs’ implicit argument that their injuries are attributable primarily to U.S. 

emissions is incorrect. Plaintiffs and their experts fail to account for these factors and isolate the 

incremental contribution of the conduct at issue to Plaintiffs’ alleged injuries. 

174. Plaintiffs state that:

a. The conduct at issue caused an increase in the supply and consumption of fossil 

fuels in the U.S. and an increase in U.S. CO2 emissions. 176

b. Increased U.S. CO2 emissions in turn caused an increase in the atmospheric 

concentration of CO2. 177

c. Higher CO2 concentration in turn caused climate change effects, including higher 

temperatures, changes in precipitation patterns and amounts, an increase in the 

likelihood of extreme weather events, and other changes in climate. 178

d. Climate change effects in turn allegedly caused Plaintiffs’ injuries (e.g. health 

effects, psychological effects, loss of recreational enjoyment, property damage, 

etc.). 179 

175. Based on Defendants’ Answer and for purposes of this litigation, I understand that the 

links in the middle of the chain (i.e., (a)-(c) above) are not contested. 180 However, items (a)-(c) 

 

176 Complaint, ¶¶151–153. 177 Complaint, ¶98. 178 Complaint, ¶¶131, 220. 179 Complaint, ¶¶16–97. 180 Answer, ¶1.

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alone are not sufficient to establish that the conduct at issue was the sole or primary cause of 

Plaintiffs’ alleged injuries. Plaintiffs and their experts do not present any analysis that controls 

for the impact of emissions from sources other than the federal government. Thus even if they 

can establish that global climate change caused their injuries, they have not presented any 

analysis to show that Defendants’ emissions (or emissions caused by Defendants’ conduct at 

issue) caused Plaintiffs’ alleged injuries. 

176. Plaintiffs and their experts fail to state what CO2 concentrations and U.S. CO2 emissions 

would have been absent the conduct at issue. Indeed, Plaintiffs do not say when the conduct at 

issue first began, which makes it impossible to determine the counterfactual level of emissions 

and CO2 concentration. 181 

177. Further, they fail to state the amount (if any) by which the “unusually dangerous risks,” 

“imminent dangers,” and other injuries alleged in the complaint increased as a result of changes 

in CO2 concentration and consequent climate change effects. These are glaring omissions.

B. Plaintiffs’ Experts Fail to Identify the Incremental Impact of the Conduct at 

Issue on Cumulative CO2 Emissions and CO2 Concentration 

178. The U.S. has contributed 21% of cumulative global energy-related CO2 emissions since 

1990. 182 It follows that 79% of global energy-related CO2 emissions since 1990 are attributable 

to countries other than the U.S. However, Plaintiffs fail to account for this fact. If 

approximately 79% of the change in CO2 concentration since 1990 is attributable to sources 

other than the U.S., then Plaintiffs’ apparent belief that their injuries are attributable solely to the 

conduct at issue is wrong on its face. 

179. Further, Plaintiffs fail to identify the portion of U. S. territorial emissions (i.e., all energyrelated emissions generated in the United States) that are specifically attributable to the conduct 

at issue. I show in the following sections that a large majority of U.S. territorial emissions were 

unrelated to the conduct at issue, whether construed narrowly as emissions from Defendants’ 

consumption of fossil fuels, or broadly as emissions generated by entities other than the 

government as a result of Defendants’ conduct at issue. Emissions from Defendants’ direct 

 

181 For purposes of rebuttal, I assume arguendo that the conduct at issue began as of 1990. 182 U.S. Energy Information Administration, International Energy Statistics. 

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consumption of fossil fuels were a very small part of total U.S. emissions, and emissions caused 

by Defendants’ affirmative policy acts (e.g., subsidies) were small as well. 

1. Defendants’ Direct Consumption of Fossil Fuels

180. Although the U.S. government is a large consumer of energy relative to other economic 

actors in the U.S., 183 it represents only a small fraction of U.S. territorial emissions, and therefore 

a very small fraction of global emissions, hence its contribution to CO2 concentration (which 

depends on global emissions) is very small. 184 

181. EIA data show that the federal government accounted for 1.2% of total U.S. energy 

consumption from 1990 to 2015. 185 Assuming that the carbon intensity of the government’s 

energy consumption is the same as the carbon intensity of the U.S. economy as a whole, it 

follows that the federal government accounted for 1.2% of U.S. energy-related CO2 emissions 

from 1990 to 2015 and 0.25% of global energy-related CO2 emissions from 1990 to 2015. 186

182. Thus 99.75% of all energy-related global CO2 emissions from 1990 to 2015 was caused 

by entities other than the federal government. 

 

183 The government consumes energy to operate more than 350,000 buildings and power more than 600,000 

vehicles. See “Government Energy Management,” Office of Energy Efficiency and Renewable Energy, 

https://www.energy.gov/eere/efficiency/government-energy-management, accessed August 3, 2018. The 

Department of Defense is the largest energy consumer among government agencies, except for the use of gasoline 

by the U.S. Postal Service, which accounted for 40% of the U.S. government’s total gasoline consumption. See 

“U.S. federal government energy costs at lowest point since fiscal year 2004,” U.S. Energy Information 

Administration, https://www.eia.gov/todayinenergy/detail.php?id=33152, accessed August 3, 2018. 184 Note also that the federal activities that emit GHGs have important value to the fundamental objectives–

economic welfare, national security, and environmental protection. Shutting these activities down would lead to 

severe negative consequences, unless these activities were conducted by private sector firms. In that case, the 

greenhouse gas emissions could be expected to be as great as they are now. And in some cases, such as national 

defense, it is very unlikely that the function could be conducted nearly as effectively if it were not the responsibility 

of the Federal government.

185 U.S. Energy Information Administration, “July 2018 Monthly Energy Review,” Table 2.1 Energy Consumption 

by Sector, Table 2.7 U.S. government energy consumption by agency, fiscal years. 186 Approximately 0.21 (U.S. share of global energy-related CO2 emissions from 1990 to 2015) * 0.012 (U.S. federal 

government’s share of U.S. energy-related CO2 emissions from 1990 to 2015) = 0.0025 (U.S. federal government’s 

share of global energy-related CO2 emissions). 

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2. Defendants’ Affirmative Policy Acts

183. As of 2015, the majority of U.S. fossil fuel production was on private land and was 

therefore unaffected by government permitting policies for public lands. 187 Moreover, because 

the U.S. is a net importer of fossil fuels, 188 sources other than U.S. public lands account for an 

even larger proportion of U.S. fossil fuel consumption. 

184. As for subsidies, which affect production incentives on private and public land, academic 

research has shown that while subsidies may induce fossil fuel production from otherwise 

unprofitable sources, the incremental impact is small and decreases as the price of oil 

increases. 189 Moreover, the subsidies themselves are available only for small, independent 

producers; integrated suppliers are not eligible. 190 Further, the aggregate subsidies are small: as 

explained previously, the average subsidy paid to fossil fuel producers was approximately $0.02 

per gallon of gasoline. By comparison, the average tax on a gallon of gasoline from 1990 to 

2015 was approximately $0.53 per gallon, or more than twenty times the size of subsidies. 191 

185. Further, the subsidies at issue would likely have a negligible impact on global production 

and consumption of fossil fuels and GHG emissions because changes to domestic fossil fuel 

production would likely be offset by changes in world production, and because demand for fossil 

 

187 As of 2016, less than half of fossil fuel production in the U.S. was on federal lands. Public land accounted for 

14% of U.S. natural gas production, 24% of U.S. crude oil production, and 40% of U.S. coal production. See 

National Resources Revenue Data, U.S. Department of the Interior, https://revenuedata.doi.gov/explore/, accessed 

August 3, 2018.

188 U.S. Energy Information Administration, “May 2018 Monthly Energy Review,” Table 1.4b Primary Energy 

Exports by Source and Total Net Imports. 189 For example, Jewell et al. (2018) find that “removing fossil fuel subsidies would have an unexpectedly small 

impact on global energy demand and CO2 emissions and would not increase renewable energy use by 2030.” See 

Jessica Jewell et al., “Limited Emission Reductions from Fuel Subsidy Removal Except in Energy-Exporting 

Regions,” Nature 554, 2018, pp. 229. Erickson et al. (2017) find that tax preferences and direct subsidies can push 

oil production from being unprofitable to profitable. Their result depends on oil prices. If oil prices increase to $75 

per barrel, the impact of subsidies will be limited. See Peter Erickson et al., “Effect of Subsidies to Fossil Fuel 

Companies on United States Crude Oil Production,” Nature Energy 2, 2017, pp. 891–898. 190 David Blackmon, “Oil And Gas Tax Provisions Are Not Subsidies For ‘Big Oil’,” January 2, 2013, Forbes, 

https://www.forbes.com/sites/davidblackmon/2013/01/02/oil-gas-tax-provisions-are-not-subsidies-for-bigoil/#6bd8d0ca52e8, accessed August 12, 2018. 191 As of January 1, 2018, the federal gasoline tax was $0.18 per gallon, and average state tax was $0.28. From 1990 

to 2015, the average combined federal and state gasoline tax was approximately $0.53 per gallon. See “How much 

tax do we pay on a gallon of gasoline and a gallon of diesel fuel?” U.S. Energy Information Administration, 

https://www.eia.gov/tools/faqs/faq.php?id=10&t=10, accessed August 11, 2018. See also “Highway Statistics 

2015,” U.S. Department of Transportation, Table MF–205 State Motor-Fuel Tax Rates, Table FE–101A Federal 

excise tax rates on motor fuels and lubricating. oil. See also “Highway Statistics 2000,” U.S. Department of 

Transportation, Table MF–1, State Motor-Fuel Tax Rates, 1985–2000. 

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fuels is relatively inelastic (i.e., not sensitive to price changes). 192 Figure 9 shows the impact on 

fossil-fuel consumption if the U.S. were to remove subsidies. The bottom fossil fuel supply line 

shows the quantity of fossil fuels that producers would provide at a given price with subsidies in 

place from the federal government. Removing the subsidies would reduce U.S. fossil fuel output 

and shift global supply to the transitional supply line, which exhibits a higher price required to 

produce a given quantity of fossil fuels than the original supply line. The increase in price, 

however, would induce additional production from the rest of the world and partially offset the 

reduction in supply from the U.S. This is depicted in the figure by the movement from the 

transitional supply line to the final supply line with no U.S. subsidies. Thus the overall quantity 

of fossil fuel production and consumption is relatively small. Furthermore, because demand is 

inelastic (the line representing demand is almost vertical), movements in the supply curve do not 

translate into large changes in the quantity of fossil-fuel production and consumption. 

 

192 John C.B. Cooper, “Price Elasticity of Demand for Crude Oil: Estimates for 23 Countries,” OPEC Review 27, 

no. 1, 2003, pp. 1 (“The estimates so obtained confirm that the demand for crude oil internationally is highly 

insensitive to changes in price.”).

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3. Defendants’ Alleged Failure to Develop Policies to Mitigate GHG 

Emissions by Entities Other Than the Federal Government. 

186. Plaintiffs and their experts offer no analysis to link the failure to develop policies to the 

impacts on GHG emissions. Thus I conduct two back-of-the-envelope calculations to distinguish 

between GHG emissions caused by the conduct at issue, and emissions not caused by the 

conduct at issue. 

187. Suppose the U.S. had ceased policies facilitating fossil fuel supply and consumption, and 

acted to encourage the development of clean energy, and assume for illustration that these 

hypothetical policy changes could have reduced past U.S. energy-related emissions by 20%. 

Then global emissions would have been about 4% lower. 193 If all emissions directly attributable 

to the federal government were halted, that would add an additional 0.25%. Thus approximately 

96% of global emissions are attributable to sources other than the conduct at issue: 79% of 

 

193 This takes U.S. emissions to have been 21% of historical global energy-related CO2 emissions, energy use to be 

approximately 95% of world CO2 emissions, and emissions from energy uses to be reduced by 20%. Multiplying 

these three factors gives 3.99% reduction.

Figure 9. Global Fossil Fuel Market Response to Removal of U.S. Subsidies

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global past emissions are attributable to other countries, 17% are attributable to remaining 

emissions by non-federal U.S. entities, and only 4% can be attributed to the policies and direct 

conduct of the federal government. 

188. Second, for discussion, I take the extreme assumption that somehow the U.S. was able to 

eliminate all fossil fuel production and consumption from 1990 onward. This extreme 

assumption would have been impossible, but it allows some observations. 

189. Because the U.S. was a net importer of fossil fuels as of 1990, if the U.S. had ceased both 

production and consumption of fossil fuels in 1990, aggregate global demand would have 

contracted by a larger amount than aggregate global supply, equilibrium prices for fossil fuels 

would have fallen as a result, rest-of-world fossil fuel consumption would have increased in turn 

by a relatively small amount, and rest of the world production would increase approximately 

making up for the reduction in net imports to the United States. Thus, global fossil fuel 

consumption and production would have declined, but by an amount somewhat smaller than the 

decrease in the U.S. fossil fuel consumption. 

190. If nothing else happened in this hypothetical scenario, the global emissions from 1990 

until now would have fallen by 21%. The global emissions would still have been 79% of their 

actual level. However, the hypothetical scenario likely would have displaced energy-intensive 

industries from the U.S. to other locations in which consumption of fossil fuels remained 

permissible. In that case, rest-of-world fossil fuel consumption and CO2 emissions would likely 

have increased due to displacement of these industries. As a result, rest-of-world CO2 emissions 

would have increased and global emissions would have decreased by less than the 21%. 194 In 

this hypothetical scenario, more than 79% of global emissions would still be attributable to 

sources other than the United States. 

191. If we postulated a less severe, but still hypothetical scenario, in which beginning in 1990, 

the U.S. production and consumption of fossil fuels were cut in half from their actual levels, then 

more than 90% of global emissions would still be attributable to sources other than the United 

 

194 See Sweeney, p. 116 (“Structural shifts are particularly significant for the industrial sector because of the 

movement of manufacturing to China.). See also Sweeney, pp. 116–117, fn. 3 (“This point has particular relevance 

for examining global climate change issues. If the particularly carbon-intensive products are manufactured in China 

and exported to the United States, then although the carbon emissions in the United States decrease, the U.S. 

decreases are matched by roughly equivalent Chinese increases in emissions.”). 

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States. 195 However, I hasten to add, that such a scenario could not have been accomplished by 

the federal government. 

192. I understand that Defendants’ expert Professor Weyant has carried out a more formal 

counterfactual analysis, and likewise concludes that the incremental contribution of the conduct 

at issue to changes in CO2 concentration and Plaintiffs’ alleged injuries was quite small. Using 

climate modeling software, Professor Weyant computes CO2 concentrations assuming that (i) 

U.S. CO2 emissions fell by 25% after 1990, and (ii) U.S. CO2 emissions were zero (i.e., declined 

by 100%) after 1990. These two scenarios correspond to the assumption that the conduct at issue 

caused, respectively, 25% and 100% of U.S. CO2 emissions. 

193. The first scenario likely overstates the incremental contribution of all the conduct at issue 

to U.S. CO2 emissions, and the second scenario corresponds to my hypothetical scenario. Actual 

CO2 concentrations increased by 13% from 1990 to 2015. 196 Professor Weyant finds that CO2

concentrations would have increased by 12% had the U.S. reduced its CO2 emissions by 25% as 

of 1990, and by 10% had the U.S. eliminated its CO2 emissions as of 1990. These results 

demonstrate that a large majority of the changes in CO2 concentration since 1990 are attributable

to causal factors other than the conduct at issue. 

194. Further, simple economic analysis suggests that in the rest of the world, fossil fuel 

consumption and CO2 emissions would have increased by a small amount in response to the 

U.S.’s hypothetical conduct of eliminating CO2 emissions. 197 Global CO2 emissions therefore 

would not have decreased by the amount of the reduction in the U.S. emissions, hence the 

change in CO2 concentration would have been smaller than the 3 percentage point difference 

noted above, for the reasons discussed above. 

 

195 This takes U.S. emissions to have been 21% of historical global energy-related CO2 emissions, energy use to be 

approximately 95% of world CO2 emissions, and emissions from energy uses to be reduced by 50%. Multiplying 

these three factors and adding direct federal emissions share of 0.25% gives 10.225% reduction.

196 CO2 concentration was 354 ppm in 1990 and 399 ppm in 2015. Data from National Oceanic and Atmospheric 

Administration, Earth System Research Laboratory, Global Monitoring Division, 

ftp://aftp.cmdl.noaa.gov/products/trends/co2/co2_annmean_gl.txt, accessed August 3, 2018. 197 The climate change literature recognizes this general economic principle. See, e.g., Christoph Böhringer et al., 

“Introduction to the EMF 29 Special Issue on the Role of Border Carbon Adjustment in Unilateral Climate Policy,” 

Energy Economics 34, sup. 2, 2013, pp. S95–S96.

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C. Plaintiffs Fail to Establish a Causal Link Between Their Alleged Injuries and 

Climate Change Effects Caused by the Conduct at Issue 

195. I demonstrated in the previous section that, except in hypothetical scenarios, substantially 

all (96%) of cumulative CO2 emissions since 1990 are attributable to factors other than the 

conduct at issue, namely emissions from other countries (79%) and emissions from entities 

within the U.S. other than the federal government that would have occurred absent the alleged 

misconduct (17%). 

196. Plaintiffs fail to control for the impact of factors other than the conduct at issue, and 

instead assume that the climate change effects that allegedly caused their injuries are attributable 

entirely to the conduct at issue. 

197. But this reasoning is wrong on its face. If factors other than the conduct at issue have 

caused substantially all of cumulative CO2 emissions since 1990, it follows that those factors, 

rather than the conduct at issue, are the primary cause of the increase in atmospheric CO2 

concentration since 1990 and, therefore, the climate change effects that the Plaintiffs’ alleged to 

have caused their injuries. 

198. Examples from the Complaint demonstrate the error in Plaintiffs’ logic:

a. Plaintiffs allege that named plaintiff Kelsey Cascadia Rose Juliana has already 

sustained injury due to a 2015 salmon die-off caused by “record-setting heat and 

low water levels.” 198 Plaintiffs fail to show whether the “record heat,” and “low 

water levels,” that caused the salmon die-off events would occur absent the 

conduct at issue. Instead, they appear to assume that absent the conduct at issue, 

these climate change effects and consequent injuries would not occur. 

b. First, this assertion fails to show that the changes were not the result of natural 

variability of weather. The assertion also fails to account for the fact that absent 

the conduct at issue, substantially all of the increase in atmospheric CO2

concentration since 1990 would remain, as would the resulting climate change 

effects. 

 

198 Complaint, ¶17.

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c. Plaintiffs also allege that named plaintiff Jacob Lebel and his family have been 

forced to invest in an irrigation system “in order to contend with the increasing 

drought conditions as a result of climate destabilization caused by Defendants.” 199 

Plaintiffs appear to assume that absent the conduct at issue, there would be no 

“increasing drought conditions,” and that construction of the irrigation system 

would therefore not be necessary. Again, this logic fails to account for the fact 

that absent the conduct at issue, substantially all of the increase in atmospheric 

CO2 concentration since 1990 would remain, as would the resulting climate 

change effects that made the Lebels’ irrigation system necessary. 

199. The remaining injury claims set forth in the Complaint exhibit similar errors in logic. 

200. Finally, Plaintiffs ignore the benefits they may have realized as a result of the conduct at 

issue. Plaintiffs’ injuries (if any) attributable to the conduct at issue will be overstated unless 

Plaintiffs also account for benefits received as a result of those acts. Plaintiffs likely benefitted 

from U.S. climate policies since 1990; those benefits include living in a safer nation due to 

national security priorities, benefitting from government and private services that relied on fossil 

fuels, including the U.S. armed forces. In order to accurately assess Plaintiffs’ injuries (if any), 

all of the benefits and harms that Plaintiffs received from current policies must be considered and 

compared to the benefits and harms they would realize under the counterfactual climate policy 

scenario. Plaintiffs have not shown this more complete and balanced accounting. 

XII. Plaintiffs’ Experts’ Proposed Transformations of the U.S. Energy System Are Not 

Technically or Economically Feasible 

201. Plaintiffs have submitted expert reports from Professor Jacobson and Professor Williams, 

both of whom propose highly ambitious changes to the U.S. energy system that they claim would 

eliminate or dramatically reduce energy-related GHG emissions in the U.S. 200 

202. Professor Jacobson proposes a transition by 2050 from the current U.S. energy 

infrastructure to a “100% clean, renewable energy system for all energy sectors” based on energy 

 

199 Complaint, ¶32, emphasis added. 200 Jacobson Report, p. 2; Williams, Report, p. 3.

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generated exclusively from renewable sources (wind, water, and solar). 201 Professor Jacobson 

asserts that his proposed transition is “technically and economically feasible,” that any barriers 

impeding the transition are “social and political,” 202 and that the unit price of electricity as of 

2050 would be lower than the unit price under the conventional system in use today. 203 

203. Professor Williams concludes that a “deep decarbonization pathway” leading to a 

reduction of 80% in U.S. GHG emissions by 2050 is “technically feasible” using “commercially 

demonstrated or near-commercial technologies.” 204 Professor Williams estimates the cost for a 

transformed energy system as of 2050 as 0.8% of 2050 GDP. 205 

204. Professor Williams concedes that this level of mitigation is not sufficient to meet the 350 

ppm target set forth in Plaintiffs’ demand for relief. He concludes in particular that 80% 

mitigation of GHGs is not sufficient to avoid “dangerous anthropogenic interference with the 

climate system over the long term,” and that mitigation of 96% of fossil fuel CO2 emissions 

world-wide is necessary in order to return the atmosphere to a safer CO2 concentration of 350 

ppm (the level adopted by Plaintiffs in their demand for relief). 206 Professor Williams states this 

higher level of mitigation must rely on “emerging” technologies and will require higher “unit 

costs,” additional economic losses through early retirement of fossil fuel infrastructure, and 

“changes in the consumption of energy services and/or rates of consumption growth.” 207 

205. Many elements of the energy system transformations proposed by Professors Jacobson 

and Williams are not technically feasible. Both assume the existence of technologies that are in 

development and, at best decades from commercial acceptance. For example, as I explain below, 

both assume that vehicle demand will shift entirely from gasoline-powered vehicles to electric 

vehicles by a given date (2030, in Professor Jacobson’s case), despite the fact that existing 

technology is not cost-effective and has so far captured very little market share. Professor 

 

201 Jacobson Report, p. 2. 202 Jacobson Report, pp. 4, 11. 203 Jacobson Report, p. 10. 204 Williams Report, pp. 4–5. 205 As an aside, I note that Professor Williams and Professor Jacobson contradict each other with respect to the cost 

of decarbonization. Professor Jacobson promises a higher level of GHG mitigation than Professor Williams (100 

percent rather than 80 percent), yet the cost of Professor Jacobson’s 100 percent mitigation is lower than that of the 

80 percent mitigation in Professor Williams’ model.

206 Williams Report, pp. 3, 10. 207 Williams Report, p. 12.

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Jacobson further assumes that (i) by 2040, hydrogen–and electric–powered airplanes will replace 

existing fossil-fuel-powered jet airplanes; 208 and (ii) underground thermal energy storage 

(“UTES”) will replace existing heating and cooling systems for residential and commercial 

buildings, requiring a retrofit of almost all residential and commercial buildings in the United 

States. He assumes this even though the largest deployment of the technology in North America 

is a 52-home demonstration project in which homes were purpose-built to accommodate 

UTES. 209 

206. Neither Professor Jacobson nor Professor Williams provides a credible estimate of the 

full costs of their respective proposals. They both focus on costs of energy supply, that is, the 

infrastructure necessary to deliver power to users, but overlook the significant investment 

required for consumers or businesses to invent, develop, and/or adopt new low-carbon energy 

technologies. As a result, their respective proposals omit many of the massive costs that the U.S. 

would incur in shifting to a low-carbon energy system. 

207. Even if technically feasible, the energy system transformations proposed by Professors 

Jacobson and Williams are not economically viable and would likely require an unprecedented 

level of government intervention in the economy. Professor Jacobson’s and Professor Williams’ 

proposals require implicitly: (i) major consumer behavioral change, (ii) significant costs borne 

by the government or directly by energy users, and (iii) leaps in technology. 

208. Plaintiffs’ experts’ proposed energy systems would require regulatory intervention on a 

massive scale. Neither of Plaintiffs’ experts provide a sense of the wide-ranging scope of the 

changes required nor do they lay out the means to accomplish the required changes. They 

provide no evidence that their proposals can be accomplished in the context of a market 

economy. Furthermore, Plaintiffs’ experts fail to consider all of the ramifications of the required 

policies.

209. Professor Jacobson offers no discussion of the policy and regulatory measures necessary 

to induce firms to invent and develop these low-carbon technologies (e.g. hydrogen-powered 

airplanes, electric cement plants) nor to produce and market them. He offers no discussion of the 

 

208 Jacobson Report, pp. 6, 17. 209 Christopher T. M. Clack et al., “Supporting Information for the Paper ‘Evaluation of a Proposal for Reliable 

Low-Cost Grid Power with 100% Wind, Water, and Solar,’” PNAS, 2017, p. 5.

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policy and regulatory measures necessary to induce consumers and firms to adopt low-carbon 

technologies (e.g., vehicles, heating systems, manufacturing processes) that are more costly than 

alternatives based on fossil fuels. 

210. While Professor Williams addresses questions of policy in Exhibit E of his report, his 

analysis raises questions about the economic system that would be consistent with his proposals. 

211. Both experts ignore significant economic and/or technical obstacles to their respective 

proposals, and simply assert, without support, that there are no such obstacles. 210 The fact is that 

there are numerous technical and economic barriers that would impede the adoption of their 

proposed energy systems. Ignoring these obstacles and ordering policy based on these proposals 

would not lead to the desired outcome Plaintiffs seek. 

212. Plaintiffs’ experts’ proposed energy systems, implementation timelines, and cost 

estimates deviate greatly from the conclusions set forth in a large body of literature that studies 

the problem of decarbonization and GHG mitigation. 

213. I explore each of these points in the sections that follow. 

A. Several Examples Demonstrate the Technical and Economic Infeasibility of 

Converting Energy End Use to All-Electric or All-Hydrogen Systems

214. I demonstrate the technical and economic infeasibility by analyzing two sectors 

(transportation and industrial) that would be difficult if not impossible to convert to zero 

emissions given present technology. 

215. Given these obstacles, one can infer that Professor Jacobson’s and Professor Williams’ 

proposed energy systems could become a reality only if the government abandoned free market 

principles throughout the economy, adopted a command-and-control approach, and mandated the 

adoption of the technologies proposed in their energy system, or provided massive subsidies, 

which would require tax increases to pay for the subsidies. Such a drastic move, however, still 

 

210 Jacobson Report, p. 4 (“Our research suggests that it is technologically and economically possible to electrify 

fully the energy infrastructures of all 50 United States and provide that electricity with 100% clean, renewable wind, 

water, and sunlight (WWS) at low cost, if the transition is commenced immediately.”). Williams Report, p. 12 (“It 

is technically feasible to achieve an 80% reduction in greenhouse gas emissions below 1990 levels by 2050 in the 

United States, while maintaining current levels of energy services without requiring any conservation measures... I 

believe that a reduction in natural emissions as deep as 96% below present levels is technologically feasible given 

current and emerging technologies... but will not diminish basic quality of life and standards of living.”).

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would not guarantee success, as centrally planned economies have in general not been 

successful.

1. Transportation: Automobiles

216. Professors Jacobson and Williams each propose an aggressive, highly ambitious 

transformation of automobile transportation in the U.S. from vehicles largely powered by 

internal combustion engines to all-electric, plug-in hybrid electric vehicles (“PHEVs”), or 

hydrogen-powered vehicles, which I will refer to collectively as zero emission vehicles 

(“ZEVs”). 211 The timeline set forth in Professor Jacobson’s report requires that ZEVs comprise 

100% of new vehicle sales by 2030; Professor Williams’ plan sets 2040 as the deadline by which 

ZEVs comprise 100% of new vehicle sales. 212 Professor Jacobson does not discuss the policies 

necessary to facilitate this transformation. Professor Williams, on the other hand, suggests the 

need for “a combination of upfront cost reductions, consumer incentives, and roll-out of a 

convenient fueling infrastructure coordinated with the share of alternative vehicles in the [lightduty vehicle] fleet.” 213 Neither Professor Williams nor Professor Jacobson offers any discussion 

about the cost of those policies. 

217. As I explain in this section, these goals are far more aggressive than even the most 

ambitious state-level ZEV adoption plans currently in place in the U.S., and there is considerable 

doubt as to whether the states will realize their more modest goals. Technical challenges, such as 

the lack of infrastructure, hinders consumer adoption. Putting aside the question of whether 

100% of consumers would actually purchase electric vehicles, I examine the cost of inducing 

consumers to do so. As a preliminary approximation, I compute the total payments that would 

 

211 Although both hybrid electric vehicles (“HEVs”) and plug-in hybrid electric vehicles (“PHEVs”) have internal 

combustion engines and electric motors, the two types of vehicles differ in a few ways. HEVs use the internal 

combustion engine as the main power source with the electric motor as a complement, whereas PHEVs utilize the 

electric motor as the main power source. HEVs also generate electricity on board and result in less substantial 

energy savings compared to PHEVs. PHEVs in contrast use grid-supplied electricity. Both are considered electric 

vehicles (“EVs”). See Alex McEachern, “Hybrids: What is the Difference Between Traditional and Plug-in?” 

Electric Vehicle News, June 8, 2012, https://www.fleetcarma.com/hybrids-what-is-the-difference-betweentraditional-and-plug-in/. 212 Jacobson Expert Report, p. 17. Williams Report, Exhibit D, p. D83. 213 Williams Report, Exhibit E, p. E70 (“Such strategies require working across industries – for example, with auto 

manufacturers and electric utilities – and need to be robust to changes in factors that affect consumer purchasing 

decisions, such as gasoline prices and interest rates.”).

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be required under California’s current electric vehicle subsidy program if, as Professor Jacobson 

assumes, 100% of car buyers were to purchase electric vehicles (“EVs”). I find that subsidy 

payments would account for nearly a quarter of the state budget after removing the essential 

expenditures of education, corrections, and health and human services. Given low consumer 

acceptance of EVs to date, and the prohibitive costs of inducing consumers to purchase EVs 

rather than gasoline-powered vehicles, command-and-control—that is, requiring consumers to 

purchase EVs—may be the only regulatory mechanism to achieve Professor Jacobson’s and 

Professor Williams’ visions for complete automobile decarbonization. 

218. There are considerable obstacles to consumer adoption of ZEVs over traditional gasolinepowered cars, as automobile market share data clearly demonstrate. ZEVs have been available 

in the U.S. for nearly two decades, yet despite generous federal and state financial incentives, 214

they accounted for 1% of U.S. light-duty vehicle sales in 2017. 215 The EIA estimates that electric 

and hybrid vehicle sales will comprise 13% of passenger vehicle sales by 2030, 17% by 2040, 

and 19% by 2050. 216, 217

219. Battery cost, recharging time, and the absence of infrastructure for out-of-home battery 

charging are key technical obstacles to widespread consumer adoption of ZEVs. Dramatic 

improvements in battery technology are necessary to bring electric vehicles to cost parity with 

gasoline-powered vehicles. At current cost levels, an electric vehicle costs less to operate than a 

gasoline-powered vehicle only if the price of oil exceeds $350 per barrel. 218 In the last five 

 

214 An example of direct financial incentive is the federal income tax credit of $2,500 to $7,500 for all-electric and

plug-in hybrid vehicles purchases in or after 2010. See “Federal Tax Credits for All-Electric and Plug-in Hybrid 

Vehicles,” U.S. Department of Energy, https://www.fueleconomy.gov/feg/taxevb.shtml; U.S. Internal Revenue 

Service Bulletin: 2009–48, November 30, 2009, https://www.irs.gov/irb/2009-48_IRB#NOT-2009-89. 215 Even if hybrid electric vehicles are considered, their market share in the U.S. has been at most merely 3.4% since 

1999. Data from hybridcars.com and U.S. Department of Energy, Alternative Fuels Center.

216 U.S. Energy Information Administration Report, “Annual Energy Outlook 2018,” February 6, 2018, pp. 9, 114. 

This is under the reference (business-as-usual) EIA scenario from 2018. The reference case reflects current laws 

and regulations including sunset dates for laws that have them. The reference case also reflects trend improvement 

in known technologies and current views of leading economic forecasters and demographers. The potential impacts 

of proposed legislation, regulations, and standards are not included.

217 The National Renewable Energy Laboratory Electrification Futures Study indicates that even in their “high” 

scenario, PHEVs only account for 84 percent of the light duty fleet in 2050. The “high” scenario represents “a 

combination of technology advancements, policy support and consumer enthusiasm that enables transformational 

change in electrification.” See Trieu Mai et al., “Electrification Futures Study: Scenarios of Electric Technology 

Adoption and Power Consumption for the United States,” Department of Energy Report #DE-AC36_08GO28308, 

2018, pp. x, xii, https://www.nrel.gov/docs/fy18osti/71500.pdf. 218 This calculation does not account for subsidies. Thomas Covert et al., “Will We Ever Stop Using Fossil Fuels?” 

Journal of Economic Perspectives, 2016, pp. 1–26, at p. 18. See also Jim Gorzelany, “Which (Of Only A Few) 

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years, oil prices have ranged from $26 to $111. 219 As for infrastructure, the DOE estimated in 

2017 that 15 million battery electric vehicles and PHEVs would require 600,000 non-residential 

plugs and 25,000 direct current fast charging (“DCFC”) plugs, and that roughly 8,000 uniformly 

distributed DCFC stations would be required to provide a minimum level of coverage in cities 

and towns such that a battery electric vehicle or PHEV would never be more than three miles 

from a charging station. 220 As of August 4, 2018, just 18,551 public electric charging stations 

were available in the U.S., over 4,500 of them located in California. 221 In Washington State there 

were only 792 charging stations. 222

220. California has ambitious plans to accelerate the adoption of ZEVs, which include goals 

for the number of ZEVs in use; demand- and supply-side incentive programs and other 

regulatory mechanisms to induce the purchase of ZEVs; and public investment in the 

infrastructure necessary to support ZEVs. 

a. California’s most recently proposed plan (as of January 2018) calls for at least 5 

million ZEVs on California roads by 2030, or approximately 20% of registered 

vehicles. 223 

b. Under the state’s Clean Vehicle Rebate Project (“CVRP”), California residents 

receive up to $7,000 for the purchase or lease of a new, eligible ZEV or PHEV. 224 

 

Hybrids Make Financial Sense,” Forbes, August 26, 2016, available at 

https://www.forbes.com/sites/jimgorzelany/2016/08/26/cheap-gas-means-few-hybrids-make-financial-sense-toown/#1c23cdc85d7c.

219 “Crude Oil Prices: West Texas Intermediate (WTI) - Cushing, Oklahoma,” Economic Research Federal Reserve 

Bank of St. Louis, August 1, 2018, https://fred.stlouisfed.org/series/DCOILWTICO. 220 Eric Wood et al., “National Plug-In Electric Vehicle Infrastructure Analysis,” U.S. Department of Energy Report, 

September 2017, pp.iv 39. 221 “Alternative Fueling Station Counts by State,” U.S. Department of Energy, August 4, 2018, 

https://www.afdc.energy.gov/fuels/stations_counts.html, accessed August 4, 2018.

222 “Alternative Fueling Station Counts by State,” U.S. Department of Energy, August 4, 2018, 

https://www.afdc.energy.gov/fuels/stations_counts.html, accessed August 4, 2018.

223 Office of Governor Edmund G. Brown Jr. Press Release, “Governor Brown Takes Action to Increase ZeroEmission Vehicles, Fund New Climate Investment,” January 26, 2018, 

https://www.gov.ca.gov/2018/01/26/governor-brown-takes-action-to-increase-zero-emission-vehicles-fund-newclimate-investments/. Note that the 20% figure is an approximation. In 2017, 26 million automobiles and 

motorcycles were registered in California. If the number of registered vehicles increases by 2030, 5 million ZEVs 

would represent less than 20% of registered vehicles.

224 “Drive clean and save,” California Clean Vehicle Rebate Project, https://cleanvehiclerebate.org/eng. 

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From 2010 to July 2018, CVRP paid $549 million in rebates for about 247,000 

ZEVs and PHEVs (an average of about $2,200 per vehicle). 225

c. On the supply side, California’s proposed 2018 plan would implement a cap-andtrade system for ZEV credits. Under this system, each manufacturer must meet a 

minimum threshold for ZEV sales as a proportion of its total vehicle sales in 

California. Manufacturers earn credits either by selling ZEVs, or by purchasing 

credits from another manufacturer. 226 The ZEV threshold begins at 4.5% of sales 

in 2018, and increases to 22% of sales in 2025. 227 

d. California will invest a total of $2.5 billion over a period of eight years in subsidy 

payments and ZEV infrastructure (pending legislation approval). 228 The state’s 

objective is to install 200 hydrogen-fueling stations and 250,000 vehicle charging 

stations by 2025. 229

221. Nine other states (the “Section 177 States”) have adopted California’s ZEV regulation, as 

allowed by Section 177 of the Clean Air Act. 230 In 2013, seven of the Section 177 States and 

California set a collective goal of 3.3 million ZEVs on their roads by 2025. 231 

222. Despite the array of policies implemented to facilitate ZEV adoption, there is 

considerable uncertainty about whether California and the Section 177 States will meet their 

ZEV goals. In California, for example, ZEVs must comprise approximately 15% of total new 

 

225 “CVRP Rebate Statistics,” California Clean Vehicle Rebate Project. 226 The number of credits awarded for a ZEV sale varies depending on certain vehicle characteristics. 227 Small Volume Manufactures with less than 4,500 vehicle sales per year are not subject to the requirements. 

California Environment Protection Agency Presentation, “California’s ZEV Regulation for 2018 and Subsequent 

Model Year Vehicles,” 2016, pp. 1–51 at pp. 6, 11, 35. 228 Office of Governor Edmund G. Brown Jr. Press Release, “Governor Brown Takes Action to Increase ZeroEmission Vehicles, Fund New Climate Investment,” January 26, 2018, 

https://www.gov.ca.gov/2018/01/26/governor-brown-takes-action-to-increase-zero-emission-vehicles-fund-newclimate-investments/. 229 Office of Governor Edmund G. Brown Jr. Press Release, “Governor Brown Takes Action to Increase ZeroEmission Vehicles, Fund New Climate Investment,” January 26, 2018, 

https://www.gov.ca.gov/2018/01/26/governor-brown-takes-action-to-increase-zero-emission-vehicles-fund-newclimate-investments/. 230 California Environment Protection Agency, Air Resources Board Report, “California’s Advanced Clean Cars 

Midterm Review,” January 18, 2017, p. E-1. The nine additional states are Connecticut, Maine, Maryland, 

Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Vermont. 231 “Eight States Plan for 3.3 Million Zero-Emission Vehicles by 2025,” United States Department of Energy, 

October 30, 2018, https://www.energy.gov/eere/vehicles/articles/eight-states-plan-33-million-zero-emissionvehicles-2025. 

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vehicle sales from 2018 through 2030 in order to meet the state’s 2030 goal, but were just 4.7% 

of sales in 2017. 232 In the Section 177 States, progress toward the ZEV target adopted in 2013 

has been sluggish at best. Annual ZEV sales have remained flat, both in absolute terms and as a 

proportion of total car sales. 233

223. Setting aside the open question of consumer adoption of ZEVs over gasoline-powered 

vehicles, I turn to the question of the cost of Professor Jacobson’s 100% ZEV vision. Suppose 

that California’s current subsidy payment was sufficient to induce 100% of car buyers (rather 

than just 15%) to purchase a ZEV instead of a gasoline-powered vehicle. Assuming average 

sales of 2 million vehicles and an average subsidy payment of $2,400 yields a total outlay of $4.8 

billion per year. 234 This amounts to more than 25% of spending under California’s 2017 budget 

after excluding education, corrections, and health and human services. 235 Expanding the rebate 

program nationwide would require $20 billion of additional federal expenditure annually. 236 

2. Transportation: Aircraft

224. Under Professor Jacobson’s timetable for decarbonization of air transportation, all new 

small, short-range aircraft must be electric by 2035, and all remaining new aircraft must be 

 

232 ZEV sales in California was 96,731 in 2017, out of the total 2,047,632 vehicles sold in California that year. 

“Advanced Technology Vehicle Sales Dashboard,” Auto Alliance, https://autoalliance.org/energyenvironment/advanced-technology-vehicle-sales-dashboard/. “California Auto Outlook: Comprehensive 

Information on the California Vehicle Market,” California New Car Dealers Association, February 2018, 

https://www.cncda.org/wp-content/uploads/California-Covering-4Q-2017-1.pdf. 15 percent is calculated by taking 

the 5 million ZEV goal divided by approximately 34 million new light duty vehicle registrations from 2018–2030 

(assuming the growth rate in new light duty vehicle registrations remains constant from 2018–2030 as the previous 

10-year average). 233 California Environment Protection Agency, Air Resources Board Report, “California’s Advanced Clean Cars 

Midterm Review,” January 18, 2017, pp. B-15–B-16. 234 New vehicle sales in 2017 in California were 2.05 million. See “California Auto Outlook: Comprehensive 

Information on the California Vehicle Market,” California New Car Dealers Association, February 2018. The 

average CVRP subsidy payment in 2017 was approximately $2,400. “CVRP Rebate Statistics,” California Clean 

Vehicle Rebate Project. 235 California’s 2017 state budget after excluding K-12 and higher education, corrections, and health and human 

services was $19 billion. “Summary Charts,” California State Budget – 2018–19, p. 18, Figure SUM-02, 

http://www.ebudget.ca.gov/2018-19/pdf/Enacted/BudgetSummary/SummaryCharts.pdf. 236 Calculation assumes the average rebate per vehicle is $2,400 and sales of 8.5 million new light-duty vehicles in 

2017: $2,400*$8.5 million=$20.4 billion. U.S. Energy Information Administration Report, “Annual Energy 

Outlook 2018,” Table 39, https://www.eia.gov/outlooks/aeo/data/browser/#/?id=48-

AEO2018&cases=ref2018&sourcekey=0. The budget for the primary federal programs that support electric vehicle 

technologies is about $7.5 billion over 10 years, from 2009 through 2019. See Congressional Budget Office Report, 

“Effects of Federal Tax Credits for the Purchase of Electric Vehicles,” p. 9, September 2012, 

https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/electricvehiclesone-col.pdf. 

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hydrogen fuel cell-electric hybrids by 2040. 237 Further, because Professor Jacobson maintains 

that U.S. energy-related CO2 emissions will be zero by 2050, he implicitly assumes that the 

existing stock of airplanes will either be decommissioned or retrofitted to use electric- or 

hydrogen-based power, potentially before the end of their useful economic life. In contrast to 

Professor Jacobson, Professor Williams does not include an explicit plan for decarbonization of 

air travel in his model.

225. Professor Jacobson offers no evidence to establish any possibility that his stated goal can 

be met, and offers no evidence to establish when or at what cost these massive changes in 

aviation technology might materialize. In particular, he offers no evidence to establish (i) that 

prototype electric-powered or hydrogen fuel cell-electric hybrid aircraft will approach 

commercial viability by 2035–2040, (ii) that these technologies will capture 100% of sales of 

short- and long-range aircraft by 2040, (iii) that the necessary airport infrastructure changes will 

materialize and mature by 2040, or (iv) that airlines will scrap their existing aircraft.

226. Research on hydrogen- and electric-powered aircraft is in its infancy and focuses on 

small, experimental aircraft. 238 In discussing the long-run industry outlook, the Federal Aviation 

Administration and the two largest aircraft manufacturers, Boeing and Airbus, do not mention 

hydrogen- or electric-powered passenger or cargo aircraft. 239 Similarly, a Boeing representative

stated in a recent interview that “large long-range commercial aircraft, like the Boeing 777 or 

787, are unlikely to be displaced by electric aircraft in the foreseeable future.” 240 

227. Further, examples of the development timelines for recently introduced aircraft 

demonstrate that Professor Jacobson’s proposed goal—complete market acceptance of hydrogenand electric-powered aircraft within 20 years—is not realistic. Airbus delivered the Airbus 380 

 

237 Jacobson Report, p. 17. 238 See, e.g., Samantha Masunaga, “No flying Tesla? That’s because electric planes are a steeper challenge than 

electric cars,” L.A. Times, September 9, 2016, http://www.latimes.com/business/la-fi-electric-aircraft-20160830-

snap-story.html. 239 Boeing Report, “Current Market Outlook: 2017 – 2036,” June 19, 2017; Airbus Global Market Forecast, 

“Growing Horizons: 2017 / 2036,” 2017. 240 Marisa Garcia, “Future Proof: Fuel Cell Systems Could Power Aircraft Cabin Parts,” APEX, February 5, 2018, 

https://apex.aero/2018/02/05/fuel-cell-systems-power-commercial-aircraft-cabin-parts, accessed on May 9, 2018. 

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more than 13 years after it first announced development plans. 241 Development of the Boeing 

787 required eight years. 242 

228. Additionally, the production rate of new aircraft required to meet Professor Jacobson’s 

proposal would be unrealistically high. Even after the development and first commercial use of a 

new airplane model, it takes time to produce each new unit. For context, in 2017 Boeing 

estimated that the number of North American airplanes in service would reach 10,130 by 2036 

and estimated that 8,640 new planes would be produced from 2017 to 2036. 243 Conservatively 

holding the number of airplanes in service constant from 2036 to 2050, even if production of 

electric- and hydrogen-powered airplanes began immediately in 2035 (assuming the technology 

was ready by then), Professor Jacobson’s timetable for zero GHG emissions leaves only 15 years 

to produce over 10,000 airplanes to replace the entire conventional U.S. fleet. This would 

require a production rate that substantially surpasses historical levels of production. 

229. Finally, Professor Jacobson’s proposed decarbonization timeline would require the 

premature retirement of operational airplanes. Based on a study by SGI Aviation, even if 

commercial production and use of electric and hydrogen-powered airplanes would begin in 2025, 

over 50% of conventional airplanes sold near 2025 would still have a useful economic life in 

2050. 244 With 2018 list prices for passenger airplanes (of at least 100 seats) ranging from $77 

million to $445 million, 245 the cost burden on commercial airlines would be astronomical if they 

 

241 Airbus announced plans to develop an all-new large airliner in 1994 and began development in 2000. The first 

superjumbo Airbus entered service nearly seven years later, in October 2007. See David Bowed, “Airbus Will 

Reveal Plan for Super-Jumbo: Aircraft Would Seat at Least 600 People and Cost Dollars 8bn to Develop,” The 

Independent, June 4, 1994, https://www.independent.co.uk/news/business/airbus-will-reveal-plan-for-super-jumboaircraft-would-seat-at-least-600-people-and-cost-dollars-8bn-1420367.html, accessed May 9, 2018; Peter Pae, 

“Airbus Giant-Jet Gamble OKd in Challenge to Boeing,” Los Angeles Times, December 20, 2000, 

http://articles.latimes.com/2000/dec/20/news/mn-2453, accessed May 9, 2018. See also “A380 Superjumbo Lands 

in Sydney,” BBC, October 25, 2007, http://news.bbc.co.uk/2/hi/business/7061164.stm accessed May 9, 2018. 242 Boeing first announced development plans for the 787 Dreamliner on January 29, 2003, and over eight years 

later, on October 26, 2011, the Dreamliner flew its first commercial flight. See “History of the Boeing 787,” Seattle 

Times, Associated Press, June 23, 2009, 

http://old.seattletimes.com/html/nationworld/2009373399_apusboeing787historyglance.html, accessed May 9, 2018; 

and Tim Kelly, “Dreamliner Carries Its First Passengers and Boeing’s Hopes,” Reuters, October 26, 2011, 

https://www.reuters.com/article/us-dreamliner/dreamliner-carries-its-first-passengers-and-boeings-hopesidUSTRE79P02Q20111026, accessed May 9, 2018. 243 Boeing Report, “Current Market Outlook: 2017 – 2036,” June 19, 2017, p. 59. 244 From 1980–2015, the average retirement age of U.S. aircraft was 26.5 years and only 10% of aircraft were retired 

before the age of 15. SGI Aviation Report, “Aircraft Retirements and Part-Out: Effective Use of Existing Trends 

and Opportunities in the Market,” September 15, 2016. 245 “About Boeing Commercial Airplanes,” Boeing, http://www.boeing.com/company/about-bca/#/prices, accessed 

May 9, 2018; “Airbus Aircraft 2018 Average List Price (USD Millions),” Airbus, 

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were forced to replace these airplanes before the end of their useful life, as implicitly required by 

Professor Jacobson’s proposal. 

3. Industrial Energy Use

230. Both Professor Jacobson and Professor Williams state objectives for reduction of 

emissions in the industrial sector. Under Professor Jacobson’s proposed timeline, all new 

devices, and all new high-temperature heating equipment for industrial applications must be 

electric by 2023. 246 As in the case of automobiles and aircraft, Professor Williams’ proposal is 

somewhat less ambitious; he concludes that by 2050, the industrial sector can reduce its GHG

emissions by as much as 84% relative to 2014 GHG emissions. 247 

231. Professor Jacobson and Professor Williams both appear to rely on little more than 

unsupported assumption. For example, Professor Williams’ predicted emissions for the 

decarbonized industrial sector in 2050 assume that industrial firms will switch to low-carbon 

energy sources, 248 but he offers no explanation whatsoever of the factors that will induce firms to 

make the switch. 

232. Technical feasibility is a serious impediment. For some energy-intensive industries that 

rely on energy sources other than electricity, manufacturing processes based on electricity have 

not been developed or proven at scale. Further, economic feasibility can be an impediment even 

when technical feasibility is not. Often the cost of manufacturing processes based on nonelectric energy sources is lower than the cost of processes that rely on electricity. I describe two 

examples to illustrate these points: iron and steel, where economic feasibility is an impediment 

to electrification and reduced GHG emissions, and cement, which cannot be fully decarbonized. 

These examples illustrate that there are significant technical and economic barriers to the GHG 

mitigation that Professor Williams and Professor Jacobson predict. 

 

http://www.airbus.com/content/dam/corporate-topics/publications/backgrounders/Airbus-Commercial-Aircraft-listprices-2018.pdf, accessed May 9, 2018. 246 Jacobson Report, p. 16. See also Mark Z. Jacobson et al., “Low-Cost Solution to the Grid Reliability Problem 

with 100% Penetration of Intermittent Wind, Water, and Solar for All Purposes,” Proceedings of the National 

Academy of Sciences 112, no. 49, 2015 (“Jacobson 2015b”), pp. 15060–15065, at p. 15060. 247 Williams Report, Exhibit D, p. D38. 248 See, e.g., Williams Report, Exhibit D, p. D52, noting that for firms whose industrial processes rely on steam, 

coal, coke, and petroleum fuels “are replaced by” electricity or pipeline gas. 

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233. EIA survey data indicate that the iron and steel industry is energy-intensive—as of 2014, 

it accounted for just 0.6% of U.S. GDP, but 6% of industrial energy use 249—but has made 

significant progress in electrification of manufacturing. However, the production technology 

that Professor Williams proposes can decarbonize only part of iron and steel production, and its 

costs are higher than the conventional production methods. 250 

234. I understand that steel-making is a two-stage process. The first stage reduces iron ore, 

while the second stage further processes the reduced iron ore into steel. 251 In the last 50 years, 

U.S. manufacturers have electrified the majority of the second stage of the production process. 252 

However, there does not exist today a commercially mature zero-emission process for the first 

stage of production. Research into the possibility of using hydrogen in the reduction of iron ore 

is ongoing, but industry press suggests that an economically viable hydrogen-based process is 

decades away. 253 

235. Additionally, I understand that the direct reduced iron (“DRI”) method that Professor 

Williams proposes is a broad category for processes that reduce iron in its solid state, 254 and that 

the DRI method has been proven to reduce emissions. 255 However, the unit cost of production 

based on the DRI method is more than twice the cost of production based on traditional 

 

249 U.S. Energy Information Administration, 2014 MECS Survey Data, October 2017, Table 1.1 First Use of Energy 

for All Purposes (Fuel and Nonfuel), 2014. The iron and steel industry produced goods in 2014 with an estimated 

value of about $113 billion in 2014 compared to a total U.S. 2014 GDP of $17.4 trillion. Michael D. Fenton, “Iron

and Steel,” U.S. Geological Survey Mineral Commodities Summaries, January 2015, 

https://minerals.usgs.gov/minerals/pubs/commodity/iron_&_steel/mcs-2015-feste.pdf. 250 Williams Report, Exhibit D, p. D52. 251 Since pure iron (Fe) is not readily available in nature due to its reactivity with air and moisture, iron ore (Fe2O3) 

mined is reduced to pure iron when heated in a furnace at high temperatures in the presence of hydrocarbon-rich 

gases. See “Iron and Steel,” Energy Technology Systems Analysis Programme, International Energy Agency, May 

2010. F. Grobler and R.C.A. Minnitt, “The Increasing Role of Direct Reduced Iron in Global Steelmaking,” Journal 

of the South African Institute of Mining and Metallurgy, March/April 1999. 252 In 2015, the majority (65%) of raw steel production plants in the US operated using electric arc furnaces. See 

Tom Balcerek, “Turning Away from Blast Furnaces Still Leaves Problems for Steel Industry,” Platts, October 20, 

2015, blogs.platts.com/2015/10/20/blast-furnaces-problems-steel-industry/. 253 Stuart Burns, “Hydrogen to Replace Coking Coal in the Reduction of Iron Ore Steelmaking? Maybe One Day,” 

Metal Miner, February 13, 2017, https://agmetalminer.com/2017/02/13/hydrogen-to-replace-coking-coal-in-thereduction-of-iron-ore-in-steelmaking-maybe-one-day/. 254 Direct reduced iron (“DRI”) is produced by removing oxygen from iron ores in the solid state (in the form of 

lumps or pellets). Natural gas or coal are used as a reducing agent to enable this process. “Iron and Steel,” Energy 

Technology Systems Analysis Programme, International Energy Agency, May 2010. “DRI Production,” 

International Iron Metallics Association, https://www.metallics.org/dri-production.html, accessed July 13, 2018. 255 “Iron and Steel,” Energy Technology Systems Analysis Programme, International Energy Agency, May 2010, 

Table 1, p. 6.

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methods. 256 Besides technology and cost issues, shipping and handling of the iron from the DRI 

process also requires an inert atmosphere to prevent self-heating and fires. 257

236. Cement manufacturing is another example of an energy-intensive industry. According to 

the EIA, cement manufacturing is “the most energy intensive of all manufacturing industries”; 

the cement industry’s share of national energy use is roughly 10 times its share of the nation’s 

gross output of goods and services. 258 Neither Professor Williams nor Professor Jacobson 

provides guidance for reduction of emissions from the cement industry, and for good reason—

the technology to electrify its production has not yet matured. I am aware of two pilot projects 

seeking to decarbonize cement production. The first, a pilot study in Sweden, concluded that 

electric furnaces are largely unsuitable. 259 The second project, SOLPART, aims to develop solar 

processes in substitution of fossil fuels used as part of cement production, but thus far has failed 

to do so. 260 To date, SOLPART has failed to reach the required temperature level. 261 

237. Further, more than half of GHG emissions from cement production are attributable to the 

production process itself, rather than to generation of energy used to fuel production. The 

literature indicates that the chemical reaction involved in one part of the production process 

accounts for more than half of GHG emissions. Substitution to a zero-emission energy source 

cannot eliminate these emissions. 262 Even using zero-emission energy sources, the cement 

industry CO2 emissions will not be reduced to zero. 

 

256 As of 2010, unit cost was $92 per ton (including energy inputs) using a conventional blast furnace and basic 

oxygen furnace, but $214 per ton for production based on DRI and electric arc furnace combinations. “Iron and 

Steel,” Energy Technology Systems Analysis Programme, International Energy Agency, May 2010, p. 1. 257 International Iron Metallics Association Report, “Ore-Based Metallics: Adding Value to the EAF,” May 2017, p. 

21, http://seaisi.org/seaisi2017/file/file/full-paper/Session7B%20Paper2.pdf. 258 See “The Cement Industry Is the Most Energy Intensive of All Manufacturing Industries,” U.S. Energy 

Information Administration, July 1, 2013, https://www.eia.gov/todayinenergy/detail.php?id=11911. 259 Clinker sintering, a critical step in cement production, requires a temperature of 1450◦

C, but electric furnaces that 

reach this temperature typically do not have the cylindrical shape necessary to produce clinker. See Cédric Philibert, 

“Renewable Energy for Industry: From Green Energy to Green Materials and Fuels,” International Energy Agency 

Report, 2017, p. 43. See also Vattenfall Press Release, “Vattenfall and Cementa Focusing on Zero Emissions,” June 

29, 2017, https://group.vattenfall.com/press-and-media/news--press-releases/pressreleases/2017/vattenfall-andcementa-focusing-on-zero-emissions. 260 Cédric Philibert, “Renewable Energy for Industry: From Green Energy to Green Materials and Fuels,” 

International Energy Agency Report, 2017, p. 42 261 Cédric Philibert, “Renewable Energy for Industry: From Green Energy to Green Materials and Fuels,” 

International Energy Agency Report, 2017, p. 43. 262 Lisa J. Hanle et al., “CO2 Emissions Profile of the U.S. Cement Industry,” U.S. Environmental Protection 

Agency Report, pp. 5–6. See also Cédric Philibert, “Renewable Energy for Industry: From Green Energy to Green 

Materials and Fuels,” International Energy Agency Report, 2017, p. 42 (“More than half of the cement industry’s 

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B. Plaintiffs’ Experts Understate Costs of their Proposed Energy Systems 

238. Plaintiffs’ experts’ understate the costs of their proposed energy systems. Moreover, the 

estimates they provide are necessarily highly uncertain, as they both forecast energy costs over 

nearly 40 years. While Professor Williams acknowledges the unavoidable uncertainty in his 

estimates, Professor Jacobson papers over the issue and fails to report the uncertainty in the 

forecast data on which his cost estimates rely. As for energy costs, neither Professor Jacobson 

nor Professor Williams considers the full range of costs associated with their proposed energy 

systems. Both focus narrowly on the costs of energy supply. Neither offers a model of energy 

demand (i.e., a model in which the quantity of energy consumed responds to the price of energy), 

and neither attempts to estimate the broad economic effects that would arise in response to an 

increase in the price of energy (“macroeconomic effects”). As I explain below, other research 

shows that the macroeconomic effects of decarbonization are substantially larger than the cost 

estimates that Professor Williams provides. Finally, I find Professor Jacobson’s conclusion as to 

electricity costs under his “WWS” system is incorrect. Professor Jacobson asserts that electricity 

costs would be lower under his proposed system than under the current, conventional energy 

system. As I explain below, inspection of his cost analysis reveals that this incorrect result 

depends entirely on unsupported assumptions as to the trajectory of initial investment costs over 

time. 

1. Plaintiffs’ Experts’ Cost Estimates Are Highly Uncertain

239. The cost estimates that Professor Williams and Professor Jacobson present rely on a wide 

variety of assumptions as to technical progress across a wide variety of scientific and engineering 

domains, and further assumptions as to the trajectory of energy demand, technology costs, and 

fossil fuel prices over a period of nearly 40 years. As a result, their estimates must be regarded 

as highly uncertain. 

240. Professor Williams documents the degree of uncertainty in his estimates of the 

incremental cost of his proposed energy system, and concedes that “technology cost and fossil 

 

CO2 emissions are process emissions from the clinker production process, in which limestone (CaCO3) is heated to 

produce lime (CaO) and thus release CO2.”). 

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fuel projections 40 years into the future are very uncertain.” 263 He estimates that incremental 

costs for 80% mitigation will be 0.8% of 2050 GDP. However, the dispersion in Professor 

Williams’ estimates is quite large: the 25th and 75th percentile values for estimated incremental 

costs are, respectively, -0.2% and 1.8% of GDP, and 25% of estimates are greater than 1.8% of 

GDP. 264 Setting aside the factors that cause Professor Williams to understate the cost of his 

proposed transformation, this means that energy expenditure as a proportion of GDP could 

increase by 23% or more over its level under the current energy system. 265 

241. Professor Jacobson offers little information to describe the degree of uncertainty in his 

cost estimates. He reports estimates of average costs for electricity in 2050 by generation 

technology, 266 but he reports nothing about the uncertainty associated with the forecast data from 

which he constructs his cost estimates. 267 For example, 2040 fuel prices in the EIA 2014 forecast 

Professor Jacobson relies on vary from their median estimate by -41% to 222% for coal, -36% to 

53% for natural gas, and -47% to 72% for oil. 268 This variation does not appear in Professor 

Jacobson’s model. Instead Professor Jacobson extends the EIA baseline case projection to 2050 

and arbitrarily uses +/- 10% as his high and low scenarios. 269 As a result, Professor Jacobson’s 

cost estimates do not have a known error rate. 

 

263 Williams Report, Exhibit D, p. D27. Emphasis added. 264 Williams Report, p. 3. See also Williams Report Exhibit D, pp. D16, D43. 265 Energy expenditures were 8% of GDP on average from 2005–2016. An increase equivalent to 1.8% of GDP 

represents a 23% increase, since 9.8 / 8.0 = 1.23. See U.S. Energy Information Administration Report, “July 2018 

Monthly Energy Review,” Table 1.7 Primary Energy Consumption, Energy Expenditures, and Carbon Dioxide 

Emissions Indicators. 

266 Mark Z. Jacobson et al., “100% Clean and Renewable Wind, Water, and Sunlight (WWS) All-Sector Energy 

Roadmaps for the 50 United States,” Energy & Environmental Science 8, no. 7, 2015 (“Jacobson 2015a”), Table 5. 267 Data that Professor Jacobson relies on to construct estimated average costs include a forecast of power plant 

capacity, fuel costs, and transmission and distribution costs published by the EIA. See Jacobson 2015a, 

Supplemental Information, pp. 45, 52, 60, 61. 268 See U.S. Energy Information Administration Report, “Annual Energy Outlook 2014,” Table: Electric Power 

Projections by Electricity Market Module Regions, All Scenarios.

269 Jacobson 2015a, Supplemental Information, p. 60.

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2. Plaintiffs’ Experts Cost Estimates Are Incomplete and Understate the 

Full Economic Impact of Decarbonization 

242. Neither Professor Jacobson nor Professor Williams presents a complete analysis of the 

costs associated with their proposed energy systems. The estimates they present are incomplete

and therefore understate the full costs to society of their proposed energy systems. 

243. A complete accounting of economic impact must include cost changes in three different 

categories: (i) energy supply costs; (ii) costs for replacement of the stock of equipment necessary 

to use energy (e.g., appliances, systems for heating, ventilation, and cooling of residential and 

commercial buildings, and equipment for industrial and manufacturing processes); and (iii) 

macroeconomic effects arising from an energy price shock (i.e., effects throughout the economy, 

rather than the energy sector alone, in response to a change in energy prices). 270

244. Professor Jacobson considers only the cost of electricity (i.e., the average or “levelized” 

cost of electricity), 271 and fails to analyze or report costs in the other two categories. Given these 

omissions, his conclusions as to average cost are not a reliable indicator of the overall cost to 

society of his proposed energy system. Moreover, as I show below, his estimates of average cost 

are incorrect. 

245. Professor Williams’ analysis is marginally more complete, as it includes both energy 

supply costs and an estimate of costs associated with the stock of end-use equipment and 

infrastructure. However, Professor Williams fails to include any estimate of the macroeconomic 

effects of his proposed energy system. A thorough analysis would account for the economic 

impact of changing energy costs outside of the energy sector. Indeed, Professor Williams states 

he does not account for changes in energy demand in response to higher energy prices, that 

 

270 As to the second category, the energy systems proposed by Professors Jacobson and Williams would require 

replacement of end-use infrastructure. For example, both Professor Jacobson and Professor Williams call for 

industrial power users to adopt new manufacturing processes using electricity rather than high-carbon fuels, which 

would require new manufacturing equipment. See Jacobson Report, p. 16 and Williams Report, Exhibit E, p. E52. 

271 Levelized costs measure the unit cost of electricity from a generation facility over the operating life of the 

facility. Levelized cost includes initial capital investment, financing costs, fixed and variable operating costs, 

maintenance costs, and fuel costs over the life of the facility. See, e.g., U.S. Energy Information Administration

Report, “Levelized Cost and Levelized Avoided Cost of New Generation Resources in the Annual Energy Outlook 

2018,” March 2018, https://www.eia.gov/outlooks/aeo/pdf/electricity_generation.pdf. I refer to levelized cost as 

average cost.

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“economic accounting in PATHWAYS is limited to energy system costs,” and that 

“PATHWAYS...does not include pricing or macroeconomic feedback.” 272 

246. Professor Williams’ failure to examine the impact of changes in energy prices on the 

overall economy is a critical omission. Academic studies have shown that these macroeconomic 

effects comprise a large proportion of the overall cost of decarbonization. For example, the 

Energy Modeling Forum 24 (“EMF 24”) studies, 273 which use economic models to examine the 

macroeconomic impact arising from climate policy intervention and decarbonization, show that 

estimated consumption losses and losses in economic output (GDP) are on the order of $1 to $6 

trillion. 274 Professor Williams’ cost estimates are an order of magnitude smaller; he reports that 

the median incremental cost for his proposed energy system is “just over $300 billion.” 275 

247. Given the importance of macroeconomic effects, the cost estimates that Professor 

Williams presents are not a reliable indicator of the overall cost of his proposed system to 

society. 

3. Professor Jacobson Understates the Cost of Electricity Under His 

Proposed Energy System 

248. Professor Jacobson asserts that the cost of electricity in 2050 would be lower under his 

proposed 100% WWS system than under a projection of the current U.S. energy system (the 

“business-as-usual system”). 276, I conclude that Professor Jacobson’s conclusion is incorrect 

because his analysis understates the cost of electricity under his proposed energy system. 

249. A simple comparison with Professor Williams’ results suggests that Professor Jacobson’s 

conclusion is implausible. Professor Williams concludes that 80% mitigation of U.S. GHG 

 

272 Williams Report, Exhibit D, pp. D27. Emphasis added. PATHWAYS is one of the models Professor Williams 

uses to assess the feasibility of reducing GHG emissions by 80% of 1990 levels. Williams Report, Exhibit D, p. 

D14. 

273 EMF 24 is an energy modeling research project coordinated by the Stanford University Energy Modeling Forum 

that studied the economic impact of various climate intervention policies (e.g., economy-wide cap and trade, and 

sector-specific policies for transportation and electricity generation) given different GHG reduction goals (50% and 

80%) and varying assumptions about technology. The studies compared results from seven different energyeconomic models using a variety of measures, including carbon price, consumption loss, GDP loss, and equivalent 

variation. See Allen A. Fawcett et al., “Overview of EMF 24 Policy Scenarios,” Energy Journal 35, 2014 (“EMF 24 

Policy Scenarios”). 

274 EMF 24 Policy Scenarios, Figure 7 and Figure 9. 275 Williams Report, Exhibit D, p. D43. 276 Jacobson Report, p. 3. See also Jacobson 2015b, p. 15064 and Jacobson 2015a, pp. 2104–2105.

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emissions—a lower level than Professor Jacobson promises—would cause energy expenditures 

to increase by 14% relative to the current energy system, 277 and that costs would increase still 

more to attain the higher level of mitigation (96%) necessary to reduce CO2 concentrations to 

350 ppm by 2100. 278 Professor Jacobson promises an even higher level of mitigation (100%) 

under his proposed energy system, yet claims electricity costs under this system would be lower

than costs (excluding social costs) under the current fossil-fuel-based energy system.

250. Professor Jacobson’s conclusion as to electricity costs depends on two elements of his 

analysis that understate the cost of electricity under his proposed energy system.

251. First, Professor Jacobson assumes in his analysis of electricity generation costs that initial 

capital costs for wind and solar generation facilities will fall much more rapidly under his 100% 

renewable scenario than under the reference case (“business-as-usual”) scenario. 279 

252. This assumption has a decisive impact on the relative cost of electricity in Professor 

Jacobson’s 100% renewable and conventional scenarios. I find that absent the assumption that 

costs decline at a dramatically accelerated rate in the 100% renewable scenario, electricity costs 

in the 100% renewable scenario are higher than in the conventional scenario. 280 Professor

Jacobson’s conclusion that his proposed 100% renewable energy system yields lower electricity 

prices collapses without his aggressive and unsupported assumption that costs fall more rapidly 

in the 100% renewable scenario. 

253. Second, Professor Jacobson relies on artificially low discount rates in his computation of 

average costs. While he applies the same rate to both energy systems—his proposed 100% 

renewable system, and the business-as-usual system used as a comparator—the effect of his 

 

277 See Williams Report, Exhibit E, p. E30, noting that “average retail electricity rates are only modestly higher 

(14%)” than rates under a business-as-usual scenario. 278 Williams Report, pp. 11–12. 279 For example, by 2050, the levelized initial capital cost for on-shore wind power is 2.25 cents per kWh in the 

100% renewable scenario, and 2.98 cents per kWh in the business-as-usual scenario, despite the fact that costs today 

are identical. See Jacobson 2015a, Supplemental Information, Table S13. 280 Professor Jacobson reports that the levelized cost of electricity is 9.78 cents / kWh in the 100% renewable 

scenario and 10.55 cents / kWh in the conventional scenario. After removing the accelerated cost decline 

assumption, costs in the renewable and conventional scenarios are, respectively 11.33 cents / kWh and 10.55 cents / 

kWh. Jacobson 2015a, Table 6.

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mistake is to overstate costs in the business-as-usual scenario relative to costs for the 100% 

renewable system. 281 

254. Professor Jacobson uses discount rates of 1.5%, 3%, and 4.5%. 282 These rates are well 

below those used in other estimates of levelized costs, and well below corporate borrowing costs 

in capital markets. For example, Lazard—a widely used source for energy costs—assumes an 

8% cost of debt and 12% cost of equity in its published estimates of levelized energy costs. 283 

Further, average interest rates on 15- and 30-year high-quality corporate bonds over the last 25 

years have been, respectively, 6.1% and 6.6%. 284 The IPCC baseline discount rate for calculating 

the cost from wind and solar investments is 8%. 285 

255. Professor Jacobson attempts to justify these rates on public policy grounds as “social 

discount rates” that should be low because electricity projects are long-lived and have 

intergenerational effects. 286 However, one cannot make investment decisions based on “social 

discount rates.” The appropriate discount rate is the market rate of interest, as this measures the 

opportunity cost of the investor’s capital.

C. Plaintiffs’ Experts’ Proposed Energy Systems Would Require Regulatory 

Intervention on a Large Scale

256. Even if Plaintiffs’ experts’ proposals were technically feasible and properly accounted for 

costs, they gloss over or ignore the political and economic barriers to implementation. 

Implementation of their proposals would require extensive changes across the economy, not only 

 

281 The reason for this is straightforward. The 100% renewable system has no fuel costs, hence most costs are 

incurred during initial construction. The conventional energy system, on the other hand, incurs fuel costs over the 

operating life of the system. As a result, the computation of discounted costs is more sensitive to the choice of 

discount rate. 

282 See Jacobson 2015a, Supplemental Information, Table S13. 283 “Lazard’s Levelized Cost of Energy Analysis – Version 11.0,” Lazard, November 2017, 

https://www.lazard.com/media/450337/lazard-levelized-cost-of-energy-version-110.pdf. 284 Federal Reserve Bank of St. Louis, 15-Year High Quality Market (HQM) Corporate Bond Spot Rate, 

https://fred.stlouisfed.org/series/HQMCB15YR; 30-Year High Quality Market (HQM) Corporate Bond Spot Rate

https://fred.stlouisfed.org/series/HQMCB30YR. 285 Christopher T. M. Clack et al., “Supporting Information for the Paper ‘Evaluation of a Proposal for Reliable 

Low-Cost Grid Power with 100% Wind, Water, and Solar,’” PNAS, 2017, p. 8. 286 Jacobson 2015a, Supplemental Information, p. 44. Social discount rates depend on relative time preferences. 

For example, given a choice between policy that ensures rapid short-term growth but limited long-run growth, and 

policy that ensures long-run growth, the first policy would be preferred given a high rate of time preference, and the 

latter policy would be preferred given a low rate of time preference. See, e.g., William D. Nordhaus, “A Review of 

the Stern Review on the Economics of Climate Change,” Journal of Economic Literature 45, no. 3, 2007, p. 690.

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in the energy sector but in many other parts of the economy such as transportation, industry, 

residential housing, commercial real estate, and consumer goods (e.g. appliances). Plaintiffs’ 

experts’ do not provide an accurate sense of the magnitude of changes that would need to occur 

to implement their proposals. Additionally, they provide no evidence that their proposals can be 

accomplished in the context of a market economy. 

257. Implementing Plaintiffs’ experts’ proposals would require wide-ranging changes across 

the economy. According to the Report of the High-Level Commission on Carbon Prices (coauthored and cited by Professor Stiglitz), “[a]chieving the Paris Agreement temperature target 

requires a large-scale transformation of economic activity and the underlying systems.” 287 

Furthermore, the High-Level Commission recognizes that what is required is substantial 

including both structural and technological changes, involving “large uncertainties.” The 

changes are not simply technological, but may impact “social norms.” 288 Plaintiffs’ experts do 

not explain what such an undertaking may entail. 

258. The scope of decisions that would need to be influenced to be consistent with Plaintiffs’ 

experts’ proposed energy systems is immense. Essentially Plaintiffs require not only actions by 

the U.S. government, but also full support by state regulators, as well as participation and 

adoption by all producers and consumers of energy. The energy system affects choices 

regarding what capital to invest in, what areas to focus R&D on, what products to purchase, how 

new buildings should be designed, how plants should operate, and many others. For example, 

electrifying the steel industry will require developing new processes and retrofitting existing 

plants. The government, at present, does not directly control the choices of businesses in the 

industry as to what R&D to pursue or what capital investments to make. 289

 

287 UNFCCC Report, Carbon Pricing Leadership Coalition, “Report of the High-Level Commission on Carbon 

Prices,” May 29, 2017, p. 6. 288 “The required action [to keep a temperature rise below 2 degrees C] implies structural change, learning, 

experimentation, and technological changes, and involves large uncertainties. These uncertainties include those 

related to the availability and cost of various technologies (e.g., the availability of CCS at scale, at reasonable cost), 

the social and political acceptability of some technologies (e.g., nuclear energy or large-scale land mobilization for 

biofuel production), the quality of policies, and possible changes in consumption patterns or social norms (e.g., 

related to transportation or the human diet and meat consumption).” UNFCCC Report, Carbon Pricing Leadership 

Coalition, “Report of the High-Level Commission on Carbon Prices,” May 29, 2017, p. 7. 289 Even if one argues that government does work in R&D, its contributions are small relative to the private sector. 

In 2015, approximately 69% of R&D came from the private sector. See “US R&D Spending at All-Time High, 

Federal Share Reaches Record Low,” American Institute of Physics, Nov. 8, 2016, https://www.aip.org/fyi/2016/usrd-spending-all-time-high-federal-share-reaches-record-low. 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 94 of 129
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259. The case studies described earlier provide examples of the barriers that will impede 

implementation of Plaintiffs’ experts’ energy system proposals. In transportation, a consumer 

may have a preference for gas-fueled cars. How would they be convinced to buy an electric 

vehicle? In industry, manufacturers tend to select the most cost-effective approach. How is an 

iron manufacturer going to be convinced to select the twice as expensive (but lower emission) 

DRI method? In cases where personal preferences, ingrained habits, or cost considerations 

conflict with the lower-emissions choice, how are incentives to be aligned? 

260. Plaintiffs’ experts do not provide concrete plans to align the incentives of economic 

agents with their energy system proposals. For example, Professor Williams and Professor 

Jacobson do not provide a clear mechanism for how to induce firms to switch to electric or 

hydrogen-powered energy. What type of policies will need to be put in place to incentivize or 

force conversion? What are the costs of these programs? 

261. Professor Williams does acknowledge the need for substantial policy support in his 

Exhibit E, which provides a list of 10 key policy requirements to support deep 

decarbonization. 290 However, Professor Williams’ recommendations raise questions about the 

economic system that would be consistent with his proposals. For example, he states that policy 

should “create the right kinds of competition” and indicates that “scarce biomass feedstocks” are 

being “[misallocated].” 291 Economics suggests that scarce resources will be allocated to their 

highest valued use by prices in a market without the need for “encouraging” certain “kinds of 

competition.” Other policy requirements that Professor Williams mentions include: 

• “Develop institutional structures for coordination across sectors.” 292 

• “Enable the required rates of consumer adoption” 293

• “Anticipate investment needs and build a suitable investment 

environment.” 294

 

290 Williams Report, Exhibit E, p. E14–15. 291 Williams Report, Exhibit E, p. E69. 292 Williams Report, Exhibit E, p. E67. 293 Williams Report, Exhibit E, p. E70. 294 Williams Report, Exhibit E, p. E64.

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• “Integrate supply- and demand-side planning and procurement.” 295

• “Minimize inequitable distributional effects.” 296 

• “Limit cost increases faced by consumers.” 297

262. These requirements suggest that large scale economic direction and coordination is 

required. Entrusting economic organization to a technocrat raises various concerns including 

issues of efficiency. 298 There are several examples of failed attempts at centrally planning 

economies. 299 Again, from an economics perspective, it is generally considered best to let 

markets allocate resources. 300

263. The policies also indicate that there could be non-trivial impacts on consumers in terms 

of costs and the distribution of those costs. The issues that the policies must address suggest that 

the impacts of pursuing these goals are widespread with ramifications across the entire economy.

264. Not only is the volume of policies required large, the policy tools to bring them about 

come with a price and their own set of complications. Professor Williams discusses various 

policy tools to bring about energy transformation: “pricing, emissions caps, consumer rebates, 

producer subsidies, performance standards, technology mandates, public-private partnerships, 

and (research, development, and demonstration) RD&D support.” 301 As shown with the example 

of electric cars, influencing behavior with incentives can be quite costly. Mandates and 

standards, on the other hand, shift costs to individuals and businesses, but still require the costs 

of enforcement. 

265. Professor Jacobson’s and Professor Williams’ goals are unrealistic considering the scope 

of the decisions that would need to be influenced and the government intervention required. 

They have not demonstrated how decisions made by economic agents other than the federal 

 

295 “The capability to provide demand-side flexibility at the required capacity, spatial, and time scales must be 

planned and procured in tandem with supply-side resources, and on the operational side wholesale electricity 

markets and reliability standards must be re-designed to work on both sides.” Williams Report, Exhibit E, p. E68. 296 Williams Report, Exhibit E, p. E73. 297 Williams Report, Exhibit E, p. E72. 298 “Principles of Economics,” N. Gregory Mankiw, 2004, Third Edition, p. 150. 299 “IMF Projects Venezuela Inflation Will Hit 1,000,000 Percent in 2018,” Reuters, July 23, 2018, 

https://www.reuters.com/article/us-venezuela-economy/imf-projects-venezuela-inflation-will-hit-1000000-percentin-2018-idUSKBN1KD2L9, accessed August 13, 2018. 300 See, for example, “Principles of Economics,” N. Gregory Mankiw, 2004, Third Edition, pp. 9-10. 301 Williams Report, Exhibit E, p. E15.

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government will be made to align with their proposals within the framework of a market 

economy. 

266. Additionally, Professor Jacobson and Professor Williams do not consider all of the 

ramifications of implementing these policies. For example, what is the impact of policies that 

force energy consumers to switch to electricity or hydrogen? Some industries may choose to 

relocate over-seas due to higher production costs. If so, are these policies simply shifting nonzero emissions industries elsewhere, undermining any decrease, and potentially increasing global 

emissions? Such essential considerations for policy makers are simply ignored in Plaintiffs’ 

experts’ proposals. 

D. Plaintiffs’ Experts’ Proposed Energy Systems Deviate from Consensus Views 

Regarding Decarbonization 

267. The lack of feasibility of Plaintiffs’ experts’ proposals is supported by the fact that 

Professor Jacobson’s and Professor Williams’ proposed energy systems, implementation 

timelines, and estimated costs are not consistent with the conclusions set forth in a large body of 

literature that studies the problem of decarbonization and GHG mitigation. While the 

conclusions set forth in this literature as to the feasibility, cost, and timing of different levels of 

mitigation are not uniform, Professor Jacobson’s and Professor Williams’ conclusions are well 

outside the range in several dimensions. In particular, they assert greater emissions mitigation 

will be possible at lower costs than does most of the literature. When the literature does include 

emissions mitigation closer to the levels in the proposals, it relies on the assumption of idealized 

policy scenarios that will not hold in the practical applications of Professor Jacobson and 

Professor Williams. I discuss these points further in what follows and also examine the literature 

that Professor Jacobson claims supports his proposal. 

268. The mitigation goals of both Professor Williams and Professor Jacobson are overreaching 

compared to the analysis of a large body of research. 302 In contrast to Professor Jacobson and 

 

302 The EMF 24 examines mitigation scenarios up to 80% relative to 2005. See Leon E. Clarke et al., “Technology 

and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling Exercise,” Energy Journal 35, 2014, p. 9. 

The IPCC states that only “a limited number of studies provide scenarios that... are characterized by concentrations 

below 430 ppm CO2-eq by 2100 and 2050 emission reduction between 70% and 95% below 2010.” See IPCC 

Report, “Climate Change 2014 Synthesis Report Summary for Policymakers,” 2014, p. 21.

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Professor Williams, many studies do not even examine the possibility of 96% or 100% 

mitigation. For example, the California Council on Science and Technology (“CCST”) 

concludes in its extensive analysis of decarbonization that (i) 60% mitigation by 2050 is feasible 

given technologies available today; and (ii) 80% mitigation may be feasible, but will be difficult, 

and will require solutions to the fuels problem that are not available today (in contrast to 

Professor Williams’ analysis, which purportedly uses only available technology). 303 

269. Similarly, the EMF 24 304 studies find that (i) mitigation of 50% to 80% will require a 

dramatic transformation of the energy system; 305 (ii) costs will be higher with fewer available 

technologies; 306 (iii) the ability of models to produce mitigation scenarios is not sufficient to 

draw conclusions about the “feasibility” of these scenarios in a more applied sense; 307 and (iv) 

judgments of feasibility are ultimately bound up in subjective assessments of whether the U.S. 

would be willing and capable of taking on the transformation required to meet the mitigation 

goals, including bearing the associated macroeconomic costs and undergoing the required 

technological, institutional, and social transitions. 308 The EMF 24 studies conclude that going 

from 50% to 80% mitigation requires that the bulk of additional emissions reductions come from 

non-electric sectors, which require increasingly higher costs. 309 

270. Besides adopting more aggressive GHG emission reduction targets than others (i.e., 

deeper emissions reductions within a shorter time frame), Professor Jacobson and Professor 

Williams assume faster rates of growth in renewable energy generation capacity and greater rates 

of decline in the carbon intensity of U.S. economic activity, often at much lower costs than 

reflected in most of the literature on GHG transition pathways for the U.S. Professor Jacobson’s 

 

303 Jane C. S. Long, “California’s Energy Future: The View to 2050,” California Council on Science and 

Technology Report, May 2011, pp. 43–45. 304 The Energy Modeling Forum is a model intercomparison project that investigates the power sector and the 

economy.

305 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35, 2014, p. 9. 306 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35 2014, p. 29–30. 307 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35, 2014, p. 20. 308 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35, 2014, p. 20. 309 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35, 2014, p. 21.

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combination of a 100% GHG emissions reduction target and the target year of 2050 at little or no 

putative cost goes well beyond what others have presented in even their most optimistic 

scenarios. The CCST summary study states that the reduction from 60% to 80% will require 

significant levels of research, technology development, and innovation, suggesting that the 

marginal cost of mitigation is significantly higher at levels above 80% (and is based on 

technology that does not yet exist or has not been proven at scale). 310 One EMF 24 study found 

that emissions reduction costs start to increase exponentially relative to the emissions reduction 

benefits, with this “knee” in the marginal cost of abatement curve occurring around the 50% to 

60% emission reduction target. 311

271. Although both Professor Jacobson and Professor Williams focus only on U.S. transitions 

to low-GHG futures by 2050, it is instructive to look briefly at projections of the costs of deep 

transitions to very low GHG emissions levels at the global scale through the end of the century, 

to see if there are any very low cost pathways that get global GHG emissions down near zero by 

mid-century. The last IPCC review of such scenarios shows a small number of very idealized 

global scenarios with near-zero GHG emissions by the end of the century, but not by 2050 and 

not at zero or very low costs. 312

272. Even Professor Williams’ higher cost range may be overly optimistic. Compared to EMF 

24, Professor Williams’ cost estimate is on the low end of the range, 313 and does not account for 

various demand-side costs or macroeconomic impacts, which could increase costs. 314 

Furthermore, Professor Williams’ target of 80% reduction is relative to 1990 levels while the 

 

310 Jane C. S. Long, “California’s Energy Future: The View to 2050,” California Council on Science and 

Technology Report, May 2011, p. 45. 311 Sugandha D. Tuladhar et al., “Interaction Effects of Market-Based and Command-and-Control Policies,” Energy 

Journal 35, 2014, p. 78. 312 IPCC Report, “Climate Change 2014 Synthesis Report Summary for Policymakers,” 2014, pp. 20, 24. 313 In his report, Professor Williams states: “From a cost standpoint, the PATHWAYS results ($1 to $2 trillion) are 

consistent with those found in the EMF 24 studies, which ranged from $1 to $4 trillion for most of the 80% emission 

reduction scenarios.” Williams Report, Exhibit D, p. D76. PATHWAYS is one of the models Professor Williams 

uses to assess the feasibility of reducing GHG emissions by 80% of 1990 levels. Williams Report, Exhibit D, p. 

D14. 

314 “PATHWAYS calculates total energy system costs, and does not model changes in service demands in response 

to higher prices.” Williams Report, Exhibit D, p. D76. “PATHWAYS uses a static forecast of activity levels based 

on the AEO [U.S. Department of Energy’s Annual Energy Outlook], and thus does not include pricing or 

macroeconomic feedbacks.” Williams Report, Exhibit D, p. D27. PATHWAYS is one of the models Professor 

Williams uses to assess the feasibility of reducing GHG emissions by 80% of 1990 levels. Williams Report, Exhibit 

D, p. D14. 

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EMF 24 scenarios are with respect to 2005 levels. 315 Since U.S. emissions grew by about 20% 

between 1990 and 2005, this implies that Professor Williams uses a more challenging baseline

than that examined by EMF 24. 316 Finally, the only EMF 24 scenarios that considered 80% 

reduction of emissions by 2050 relative to 2005 were based on assumptions of a perfectly 

implemented cap-and-trade system. 317 

273. These are very strong and idealistic assumptions, implying that these scenarios were 

developed as “what if” scenarios and were not meant to provide a realistic picture of what might 

ultimately be feasible at the federal, state, local, firm, or household levels. 318 The costs 

associated with these assumptions are therefore the lower bound of what is possible. Once 

institutional considerations at all levels of the U.S. economy are taken into consideration, the 

actual cost of these emissions reduction programs could be quite a bit higher. In summary, there 

are several reasons why Professor Williams’ cost estimates are biased downward. 

274. For example, the federal-level regulatory approaches considered in EMF 24—renewable 

portfolio or clean energy portfolio standards, and enhanced fuel economy standards—were 

projected to cost twice as much to reduce GHG emissions in 2050 by 50% from 2005 levels 

compared to a perfectly implemented cap-and-trade system. 319

275. Finally, Professor Jacobson cites 29 academic papers or reports in his Exhibit D relating 

to his claim that “[o]ther studies in the U.S. and abroad... provide parallel support for the ability 

 

315 Leon E. Clarke et al., “Technology and U.S. Emissions Reductions Goals: Results of the EMF 24 Modeling 

Exercise,” Energy Journal 35, 2014, p. 9. 316 U.S. Energy Information Administration, International Energy Statistics. 317 For those scenarios the assumption is that “the most efficient policies for reducing GHG emissions generally 

allow for maximal ‘when’, ‘where’, and ‘what’ flexibility, i.e. allow banking and borrowing allowances across time, 

equalize the cost of abatement across all emissions sources, and cover all greenhouse gases.” Allen A. Fawcett et 

al., “Overview of EMF 24 Policy Scenarios,” Energy Journal 35, 2014, p. 44. 318 These models were supposed to represent “the most efficient policies.” Allen A. Fawcett et al., “Overview of 

EMF 24 Policy Scenarios,” Energy Journal 35, 2014. 319 Sugandha D. Tuladhar et al., “Interaction Effects of Market-Based and Command-and-Control Policies,” Energy

Journal 35, 2014, p. 77, Figure 10: Changes in Discounted PV of Welfare from 2010–2050 for Regulatory 

Mandates Compared to the Efficient Frontier (Trillions of 2010$). Although focusing mostly on the U.S. electricity 

sector, the range of transition rate and cost projections projected in the 2018 EMF 32 study across many models and 

scenarios are similar to those contained in the EMF 24 report, providing a further basis for comparison. See Jared R. 

Creason et al., “Effects of Technology Assumptions on US Power Sector Capacity, Generation and Emissions 

Projections: Results from the EMF 32 Model Intercomparison Project,” Energy Economics 73, 2018, pp. 290–306. 

See also John E. Bistline et al., “Electric Sector Policy, Technological Change, and U.S. Emissions Reductions 

Goals: Results from the EMF 32 Model Intercomparison Project,” Energy Economics 73, 2018, pp. 307–325.

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to swiftly move away from fossil fuels.” 320 He also states that “several of these published studies 

conclude that 100% renewable energy for all sectors by 2050 for France, the European Union, 

and globally is feasible.” 321

276. However, many of these articles (i) do not contemplate a transition to 100% renewables 

in the specific sector studied (e.g., electricity); (ii) do not consider decarbonization of all sectors; 

(iii) do not claim that the transition to renewables is costless for consumers; or (iv) do not claim 

that the transition can be achieved by a 2050 deadline. Table 5 replicates Professor Jacobson’s 

Exhibit D and provides a clear breakdown as to the aspect (or aspects) in which these papers do 

not line up with Professor Jacobson’s proposal. 

 

320 Jacobson Report, p. 6. 321 Jacobson Report, pp. 6–7.

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Areas that do not meet (8) Dr. Jacobson's 

proposal

No. Publication

Change 

Modeled[1]

100% 

WWS[2]

All Energy 

Sectors[3]

At Same 

Cost[4] By 2050[5]

Reviewed 

by 

Heard[6]

1 Mason, I.G., SC Page, and AG. Williamson, 2010. A 

100% renewable electricity generation system for New 

Zealand utilizing hydro, wind, geothermal and biomass

100% renewable 

electricity in New 

Zealand

8 8 8

2 Connolly, D. and BV. Mathiesen, 2014. A technical and 

economic analysis of one potential pathway to a 100% 

renewable energy system

100% renewable 

Ireland by 2050 8 8

3 Connolly, D., H. Lund, and BV. Mathiesen, 2016. Smart 

energy Europe: The technical and economic impact of 

one potential 100% renewable energy scenario for the 

European Union

100% renewable 

for all uses in 

Europe by 2050 8 8

4 Mathiesen, BV., H. Lund, and K. Karlsson, 2011. 100% 

Renewable energy systems, climate mitigation and 

economic growth

100% renewable 

for all uses by 

2050

8 8 8

5 Mathiesen, BV., et al., 2015. Smart energy systems for 

coherent 100% renewable energy and transport 

solutions

100% renewable 

for all uses See note [7] 8

6 Elliston, B., I. MacGill, and M. Diesendorf, 2013. Least 

cost 100% renewable electricity scenarios in the 

Australian National Electricity Market

100% renewable 

electricity 8 8

7 Elliston, B., I. MacGill, and M. Diesendorf, 2014. 

Comparing least cost scenarios for 100% renewable 

electricity with low emission fossil fuel scenarios in the 

Australian National Electricity Market

100% renewable 

electricity

8 8

8 Budischak, C., et al., 2013. Cost-minimized 

combinations of wind power, solar power and 

electrochemical storage, powering the grid up to 99.9% 

of the time

90-99.9% 

renewable 

electricity in US 

territory covered 

by PJM

8

9 MacDonald, A.E., C.T. Clack, et.al., 2016. Future costcompetitive electricity systems and their impact on US 

CO2 emissions

GHGs 78% 

below 1990 

levels by 2030

8 8

10 Williams, J.H., B. Haley, F. Kahrl, J. Moore, A.D. Jones, 

M.S. Torn, and H. McJeon, 2014. Pathways to deep 

decarbonization in the United States

GHGs 80% 

below 1990 

levels by 2050

8 8

11 United States White House, 2016. U.S. Mid Century 

Strategy for Deep Decarbonization

All greenhouse 

gas emissions 

80%+ below 

2005 by 2050.

8 8

12 Hand, M.M., S. Baldwin, E. DeMeo, J.M. Reilly, T. Mai, 

D. Arent, G. Porro, M. Meshek, and D. Sandor, eds. 4 

vols., 2012. Renewable Electricity Futures Study (Entire 

Report) National Renewable Energy Laboratory

Renewables 

could supply 

80% of total U.S. 

electric 

generation by 

2050

888

13 Mai, T., D. Mulcahy, MM Hand; and SF Baldwin, 2014. 

Envisioning a renewable electricity future for the United 

States

80% renewable 

electricity by 

2050

888

14 Arent, D., J. Pless, et.al., 2014. Implications of high 

renewable electricity penetration in the U.S. for water 

use, greenhouse gas emissions, land-use, and materials 

supply

80% renewable 

electricity by 

2050 8 8

Table 5. Review of Decarbonization Studies Cited in Jacobson Report Exhibit D

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99 

Areas that do not meet (8) Dr. Jacobson's 

proposal

No. Publication

Change 

Modeled[1]

100% 

WWS[2]

All Energy 

Sectors[3]

At Same 

Cost[4] By 2050[5]

Reviewed 

by 

Heard[6]

15 Mathiesen, B.V., H. Lund, et.al., 2015. Smart energy 

systems for coherent 100% renewable energy and 

transport solutions

100% renewable 

Denmark by 

2050

Identical to article no. 5

16 Connolly, D., BV Mathiesen, 2014. A technical and 

economic analysis of one potential pathway to a 100% 

renewable energy system

100% renewable 

Ireland by 2050 Identical to article no. 2

17 Bogdanov, D. and C. Breyer, 2016. North-East Asian 

Super Grid for 100% renewable energy supply: Optimal 

mix of energy technologies for electricity, gas and heat 

supply options

100% renewable 

electricity in NE 

Asia by 2030 8

18 Parsons Brinckerhoff, 2009. Powering the Future: 

Mapping our Low-Carbon Path to 2050

80% reduction in 

CO2 in the UK 

by 2050

8

19 Schellekens, G., A. Battaglini, J. Lilliestam, J. 

McDonnell, and A. Patt, 2010. 100% renewable 

electricity: A roadmap to 2050 for Europe and North 

Africa

100% renewable 

electricity in 

Europe and N. 

Africa by 2050

8

20 Wright, M. and P. Hearps, 2010. Zero Carbon Australia 

Stationary Energy Plan

100% renewable 

stationary power 

for Australia in 

10 years

8 8

21 Denis, A., Jotzo, F., et.al., 2014. Pathways to Deep 

Decarbonization in 2050: How Australia Can Prosper in 

a Low Carbon World

Net zero 

emissions in 

Australia by 2050

8

22 McKinsey & Company, KEMA, The Energy Futures Lab 

at Imperial College London, Oxford Economics, and 

European Climate Foundation, 2010. Roadmap 2050: A 

Practical Guide to a Prosperous, Low Carbon Europe, 

Vol 1.: Technical Analysis

Reduce GHGs 

80% below 1990 

levels by 2050 8

23 E3G, The Energy Research Centre of the Netherlands, 

and European Climate Foundation, 2010. Roadmap 

2050: A Practical Guide to a Prosperous, Low Carbon 

Europe, Vol 2.: Policy Recommendations

Reduce GHGs 

80% below 1990 

levels by 2050 8

24 Zervos, A., C. Lins, and J. Muth, 2010. Re-thinking 

2050: A 100% Renewable Energy Vision for the 

European Union

100% renewable 

energy for the 

EU by 2050

8 8

25 Blake, L., P. Allen, et.al., 2013. Zero Carbon Britain: 

Rethinking the future

Net Zero GHG 

emissions in the 

UK by 2030

8 8

26 Bataille, C., et al., 2015. Pathways to deep 

decarbonization in Canada

90% below 

baseline 

scenario in 2050

8

27 The négaWatt Association, 2017. The 2017-2050 

négaWatt Scenario

100% renewable 

France by 2050 8

28 Aghahosseini, A., et al., 2018. Analysis of 100% 

renewable energy for Iran in 2030: Integrating solar PV, 

wind energy and storage

100% renewable 

Iran by 2030 8

29 Garcia-Olivares, A., et al., 2018. Transportation in a 

100% renewable energy system

100% renewable 

global 

transportation

888

Table 5. Review of Decarbonization Studies Cited in Jacobson Report Exhibit D

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277. Furthermore, several of the studies cited in Professor Jacobson’s Exhibit D (in addition to 

Professor Jacobson’s study) were reviewed by Heard et al. 2017 who concluded that none of the 

studies reviewed provides convincing evidence that the basic criteria for feasibility can be met. 322 

In particular, Heard et al. 2017 states that Professor Jacobson’s work “depends strongly on 

extraordinary assumptions relating to electrification, energy storage, and flexibility in demand... 

[T]he results of such a simulation are likely to be meaningless because the underlying 

assumptions are unrealistic.” 323 

278. A particular report cited by Professor Jacobson worth noting is the Renewable Electricity 

Futures Study, 324 which examines “the implications and challenges of renewable electricity 

generation levels—from 30% up to 90%, with a focus on 80%, of all U.S. electricity generation 

from renewable technologies—in 2050.” 325 While the article concludes that this more modest 

proposal is possible, unlike Professor Jacobson it recognizes that there are significant demandside costs associated with a transformation of the U.S. electricity system, including “average 

 

322 B. P. Heard et al., “Burden of Proof: A Comprehensive Review of the Feasibility of 100% Renewable Electricity 

Systems,” Renewable and Sustainable Energy Reviews 76, 2017, pp. 1122–1133. 323 B. P. Heard et al., “Burden of Proof: A Comprehensive Review of the Feasibility of 100% Renewable Electricity 

Systems,” Renewable and Sustainable Energy Reviews 76, 2017, p. 1130.

324 Maureen Hand et al., “Renewable Electricity Futures Study,” National Renewable Laboratory, 2012 (“Renewable 

Electricity Futures Study”).

325 Renewable Electricity Futures Study, p. xvi.

Source: Expert Report of Marc Jacobson filed April 6, 2018 (“Jacobson Report”), Exhibit D; Heard et al. 2017

Note: 

[1] As listed in Jacobson Report, Exhibit D.

[2] Professor Jacobson proposes a 2050 technology portfolio limited to wind, water, and solar with limited geothermal and 

hydropower. The studies marked in this column utilize one or more technologies that Professor Jacobson excludes, resulting 

in less than 100% GHG mitigation.

[3] Professor Jacobson proposes 100% renewable energy for all energy sectors (residential, commercial, industrial and 

transportation). The studies marked in this column exclude or do not consider one or more of these energy sectors.

[4] Professor Jacobson proposes a 100% renewable energy system that has “similar or less than today's direct energy cost.” The 

studies marked in this column indicate that costs would be higher than the business as usual scenario.

[5] Studies marked in this column either do not propose a timeline or do not meet the mitigation goal by 2050.

[6] Heard et al. 2017 concluded that for all of the 24 studies reviewed “the case for feasibility is inadequate for the formation of 

responsible policy directed at responding to climate change.” Studies marked in this column were either reviewed, or a 

similar study with the same author was reviewed, by Heard et al. 2017.

[7] The paper indicated is not a transition analysis but rather a grid integration analysis. Additionally, the study only indicates 

that it's proposed system could “potentially pave the way to a bioenergy-free 100% renewable energy and transport system.” 

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101 

annual retail electricity price increases of 0.8%–1.2% per year (2011–2050, in real dollar terms), 

compared to a rate of 0.3% per year in the baseline scenario.” 326 

E. Addressing the Important Problem of Global Climate Change Requires 

Realistic Methods

279. Global climate change is an important problem to tackle, but it is also a challenging one. 

Many hundreds of analysts around the world have struggled with the physical, technological, and 

economic issues of creating a fully sustainable energy system, and many national laboratories, 

universities, and think tanks have focused on the issues of decarbonizing the energy system. 

Many journals, conference proceedings, conferences, and workshops report the findings of these 

endeavors. There is now a large body of literature that studies the problem of decarbonization 

and GHG mitigation. 

280. But Professor Jacobson’s proposal and to a lesser extent, Professor Williams’ proposal, 

diverge greatly from the finding of these hundreds of analysts. Plaintiffs’ experts’ proposed 

energy systems, implementation timelines, and cost estimates deviate from the conclusions set 

forth in this large and growing literature. Unfortunately, many elements of the energy system 

transformations proposed by Professors Jacobson and Williams are not technically feasible, 

would require significant investment by consumers or businesses to invent, develop, and/or adopt 

new low-carbon energy technologies, would require major consumer behavioral change, would 

involve significant costs borne by the government or directly by energy users, and would require 

leaps in technology. Such transformations would likely require an unprecedented level of 

government intervention in the economy. 

281. Addressing global climate change is an important objective, but it must be pursued 

realistically within the institutional framework of our economic and political system. Plaintiffs’ 

experts have not demonstrated that their approaches are realistic or likely to succeed in practice.

 

326 Renewable Electricity Futures Study, p. A-77.

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Page 1 of 12 

CURRICULUM VITAE

James L. Sweeney, Stanford University

Professor, Management Science and Engineering

Senior Fellow, Stanford Institute for Economic Policy Research 

Senior Fellow, Precourt Institute for Energy

Senior Fellow, by courtesy, Hoover Institution on War, Revolution, and Peace 

CONTACT INFORMATION:

Home: Telephone: (650) 322-9835

Mobile: (650) 787-4333

Work: Department of Management Science and Engineering

Yang & Yamazaki Environment & Energy Building – MC 4206 

Stanford University

473 Via Ortega, Room 389, Stanford, CA 94305 

Telephone: (650) 723-2847

Email: Jim.Sweeney@stanford.edu 

Web: PEEC.stanford.edu 

www.stanford.edu/dept/MSandE/people/faculty/sweeney 

COLLEGES:

Massachusetts Institute of Technology

B.S., Electrical Engineering 1966 

Stanford University

Ph.D., Engineering-Economic Systems 1971 

PROFESSIONAL EMPLOYMENT:

Stanford University

Department of Engineering-Economic Systems:

Research Assistant 1967 - 1970 

Acting Instructor 1970 - 1971 

Assistant Professor 1971 - 1976 

Associate Professor 1976 - 1980 

Professor 1980 - 1996 

Department Chairman 1991 - 1996 

Department of Engineering-Economic Systems and Operations Research: 

Professor 1996 - 1999 

Department Chairman 1996 - 1999 

Department of Management Science and Engineering: 

Professor 2000 - current 

Department of Economics:

Appendix A

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Page 2 of 12 

Affiliated Professor 1978 - ??

Cooperating Professor 1981 - 1982 

Energy Modeling Forum: 

Director 1978 - 1984 

Senior Advisory Panel Member 1988 - ??

Institute for Energy Studies: 

Chairman 1981 - 1985 

Stanford Institute for Economic Policy Research (formerly, Center for Economic Policy 

Research):

Director 1984 - 1986 

Chairman: Energy, Natural Resources and the Environment Program 1984 - current 

Steering Committee 1982 - ??

Senior Fellow 1998 - current 

Public Policy Program: 

Steering Committee 1987-1991 

Program in Earth Systems Science: 

Steering Committee 1992 - 2000 

Freeman Spogli Institute for International Studies

Senior Fellow (by Courtesy) 2005 - 2014 

Steering Committee, Center for International Security and 

 Cooperation: 1996 - 2014 

Hoover Institution: 

Senior Fellow (by Courtesy) 2001 - current 

Interdisciplinary Program in Environment and Resources: 

Executive Committee 2002 -2007 

Precourt Energy Efficiency Center 

Director 2006 - 2018 

U.S. Federal Energy Administration 

Consultant 1974 

Director, Office of Energy Systems 1974 - 1975 

Director, Office of Quantitative Methods 1975 

Director, Office of Energy Systems Modeling & Forecasting 1975 - 1976 

CURRENT CORPORATE BOARDS/ADVISORY BOARDS

Geothermic Solution. Board of Advisors 

MEMBERSHIP IN PROFESSIONAL/CIVIC SOCIETIES or ADVISORY BOARDS:

California Council on Science and Technology 

Fellow 2000 - current 

Council Member 2007 – 2015, 2017 – current

Council Chair -- 2018 – current

Economic and Allocation Advisory Committee, of California Air Resources Board, 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 108 of 129
Page 3 of 12 

 2009 - 2010 

Governor Schwarzenegger’s Council of Economic Advisors, 2004 - 2011 

Independent Review Panel, Public Interest Energy Research Program (California Energy

 Commission), First, Second, Third, Fourth Panels 

 International Association for Energy Economics – Past Vice President for Publications

National Renewable Energy Laboratory, 

 External Advisory Council, 2003 - current 

 National Research Council Board on Energy and Environmental Systems, 1996 - 1999 

 National Research Council Board on Environmental Change and Society, 2011 - 2014 

Palo Alto-University Rotary Club – Past President

Stanford Campus Residential Leaseholders

Board Member

President of Board of Directors – 2002 - current 

 U.S. Association for Energy Economics – Senior Fellow

Petroleum Market Advisory Committee, California Energy Commission. 2015 - 2017 

 Founding chair, 2015-2016 

 Santa Clara County, Community Resources Group – 2000 – present.

PROFESSIONAL JOURNAL EDITORIAL POSITIONS:

The Energy Journal, Editorial Board member (past)

Resource and Energy Economics, Editorial Board member (past), Past Co-editor 

AWARDS AND HONORS:

 Tau Beta Pi, MIT, 1966 

 Eta Kappa Nu, MIT, 1966 

Federal Energy Administration Distinguished Service Award, 1975 

Excellence in Teaching Award, Stanford Society of Black Scientists 

 and Engineers, 1989 

 Senior Fellow, U.S. Association for Energy Economics, 1999 - 

National Associate of the National Academies 2004 – 

Adelman-Frankel Award, 2007. United States Association for Energy Economics. 

The award is given to “an individual or organization for a unique and innovative 

contribution to the field of energy economics.” 

 Outstanding Contribution Award, 2008. International Association for Energy Economics. 

“The 2008 Award for Outstanding Contributions to the Profession of Energy 

Economics and to its Literature.”

JOURNAL ARTICLES

"Quality, Commodity Hierarchies, and Housing Markets," Econometrica, Volume 42, No. 1, 

January 1974, pp. 147-167. 

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Page 4 of 12 

"Modeling Housing Markets: Commodity Hierarchies in a Spatial Setting," Stanford Journal of 

International Studies, Volume 10, Spring 1974, pp. 167-197. 

"Housing Unit Maintenance and the Mode of Tenure," Journal of Economic Theory, Volume 8, 

No. 2, June 1974, pp. 111-138. 

"A Commodity Hierarchy Model of the Rental Housing Market," Journal of Urban Economics, 

Volume 1, No. 3, July 1974, pp. 288-323. 

"Economics of Depletable Resources: Market Forces and Intertemporal Bias," Review of 

Economic Studies, Volume 44, No. 1, February 1977, pp. 125-141. Reprinted in The Economics 

of Exhaustible Resources, Geoffrey Heal (ed.), Edward Elgar Publishing, Ltd., London, 1993. 

"The Impact of the President's Proposed Gasoline Tax and Gas-Guzzler Tax on Gasoline 

Consumption," DRI Energy Bulletin, August, 1977, pp. 6-11. 

"Methodologies for Petroleum Product Price Forecasting: A Review," with M. Therese Flaherty, 

Topics in Energy, Data Resources, Inc., September 1978, pp. 1-45. 

"Optimal Growth with Depletable Resources," with P. C. Garg, Resources and Energy, Volume 

1, No. 1, 1978, pp. 43-56. 

"Energy Policy Models in the National Energy Outlook," with W. W. Hogan and M. H. Wagner, 

Management Science, Volume 10, 1978, pp. 37-62. 

"The Energy Modeling Forum: Past, Present, and Future," with J. P. Weyant, Journal of Business 

Administration, Volume 10, Nos. 1 and 2, Fall, 1978 - Spring, 1979, pp. 295-320. 

"Effects of Federal Policies on Gasoline Consumption," Resources and Energy, Volume 2, 

September 1979, pp. 3-26. 

"Aggregate Elasticity of Energy Demand," principal author with EMF 4 Working Group 

members, The Energy Journal, Volume 2, No. 2, April 1981, pp. 37-75. 

"World Oil: Preliminary Results from the Energy Modeling Forum Study," Kvartals Skrift, 

Bergen Bank: March-April 1981, pp. 161-179. 

"Modeling For Insights, Not Numbers: The Experiences of the Energy Modeling Forum," with J. 

P. Weyant and H. G. Huntington, Omega, Volume 10, No. 5, November 1982, pp. 449-462. 

"The Response of Energy Demand to Higher Prices: What Have We Learned?," American 

Economic Review, Volume 74, No. 2, May 1984, pp. 31-37; also published in Global Energy 

Interactions, R. K. Pachauri (ed.), Allied Publishers Private Limited, New Delhi, India, 1987, pp. 

573-584. 

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Page 5 of 12 

"Analyzing Impacts of Potential Tax Policy Changes on U.S. Oil Security," The Energy Journal, 

with M. J. Boskin, Volume 6, August 1985, pp. 89-108. 

"Changing World Oil Markets: What Should We Expect?," Zeitschrift fur Energie Wirtschaft, 

March 1986, pp. 73-74. 

"On Economic Policy Responses to Disruptions: A Reply to Harry Saunders," with Bert 

Hickman and Hillard Huntington, The Energy Journal, October 1989, Vol 10 no. 4, pp. 189-198. 

"Oil Import Fees With Exemptions: An Empirical Examination," Resources and Energy, March 

1990, Vol. 11 no.3, pp. 215-239. 

“The California Electricity Crisis: Lessons for the Future,” The Bridge, Summer 2002, pp 23-31. 

“An Energy Policy for the Twenty-first Century”, Hoover Digest, 2005, No. 1. pp. 33-36. 

“Low Carbon Growth: Our Ethical Responsibility”, Development Outreach, World Bank 

Institute. February 2008. 

“Learning-by-Doing and the Optimal Solar Policy in California”, Arthur van Benthem, Kenneth 

Gillingham, and James Sweeney, The Energy Journal, 2008, Volume 29, No. 4, pp 131-151. 

“Climate Speculations” Review of Climatopolis: How Our Cities Will Thrive in the Hotter 

Future by Matthew E. Kahn. Stanford Social Innovation Review. Winter 2011 

“Recent trends in power system reliability and implications for evaluating future investments in 

resiliency”, Peter H. Larsen, Kristina H. LaCommare, Joseph H. Eto, James Sweeney. Energy

Volume 117, Part 1, 15 December 2016, Pages 29–46. 

http://dx.doi.org/10.1016/j.energy.2016.10.063 

“Evaluation of a proposal for reliable low-cost grid power with 100% wind, water, and solar,” 

Christopher T. M. Clack, Staffan A. Qvist, Jay Apt, Morgan Bazilian, Adam R. Brandt, Ken 

Caldeira, Steven J. Davis, Victor Diakov, Mark A. Handschy, Paul D. H. Hines, Paulina 

Jaramillo, Daniel M. Kammen, Jane C. S. Long, M. Granger Morgan, Adam Reed, Varun 

Sivaram, James Sweeney, George R. Tynan, David G. Victor, John P. Weyants, and Jay F. 

Whitacre, PNAS, Proceedings of the National Academy of Sciences, vol. 114 no. 26, 6722–6727, 

doi: 10.1073/pnas.1610381114. 

“Energy Efficiency: Still Low-hanging Fruit.” Hoover Digest, 2017, No. 2, Spring, Hoover 

Institution

“How the West Was Wired” Hoover Digest, 2017, No. 4, Hoover Institution. Reprinted from 

Sacramento Bee. March 03, 2017. 

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Page 6 of 12 

BOOKS/MONOGRAPHS:

A Dynamic Theory of the Housing Market, Ph.D. dissertation, Department of EngineeringEconomic Systems, Stanford University, 1971. 

Handbook of Natural Resource and Energy Economics: A.V. Kneese and James L. Sweeney 

(ed.), North Holland,Volumes I and II, 1985. (Translated into Chinese, 2001.) 

Macroeconomic Impacts of Energy Shocks: Bert G. Hickman, Hillard Huntington, James 

Sweeney (eds.), North Holland, 1987. 

Potential Costs and Regulatory Burdens of the Energy Policy Act of 1992: Provisions for 

Alternative Fuel Vehicles. (Monograph) W. David Montgomery, Margaret Rhodes, and James 

Sweeney, DRI/McGraw-Hill and Charles River Associates, July 1993.

Handbook of Natural Resource and Energy Economics: A.V. Kneese and James L. Sweeney 

(ed.), North Holland, Volume III, 1993. (Translated into Chinese, 2001.)

 

Environmentally Significant Consumption: Research Directions: Paul C. Stern, Vernon W. 

Ruttan, Robert H. Socolow, and James L. Sweeney, editors. National Academy Press, 

Washington, D.C., 1997. 

Trade and Industry Impacts of the Kyoto Protocol. W. David Montgomery and James L. 

Sweeney. (White Paper) The Business Roundtable. October 1999. 

The California Electricity Crisis. James L. Sweeney. Hoover Institution Press. Stanford 

California. July 2002. 

Energy Efficiency: Building a Clean, Secure Economy. Hoover Institution Press. Stanford 

California. 2016. Chinese Translation (translated by Sichuan Energy Internet Research Institute 

of Tsinghua University) 2017 

CONTRIBUTIONS TO BOOKS:

Project Independence Report, contributor, Federal Energy Administration, November, 1974. 

"A Mathematical Model of Housing Markets," Proceedings: IEEE International Symposium on 

Circuits and Systems, April 1974, pp. 468-472. 

"Toward Housing Market Dynamics," Proceedings; IEEE Conference on Decision and Control, 

November 1974, pp. 814-817. 

"Demand for Gasoline: Application of Commodity Hierarchy Theory," with D. B. Cato and M. 

E. Rodekohr, Proceedings: Business and Economic Statistics Section, American Statistical 

Association, 1975. 

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Page 7 of 12 

National Energy Outlook, major contributor, directed development of supply/ demand/price 

forecasts, Federal Energy Administration, February 1976. 

"The Capital Stock Adjustment Process and the Demand for Gasoline; A Market Share 

Approach," with D. B. Cato and M. E. Rodekohr, in Economic Dimensions and Energy Supply 

and Demand, J. Kraft, B. Askin (eds.), Lexington Books, Lexington, Massachusetts, 1976. 

"Energy Regulation: Solution or Problem?," in Options for U.S. Energy Policy, Institute for 

Contemporary Studies, San Francisco, 1977 pp. 179-209. 

"The Demand for Gasoline: A Vintage Capital Model," in Select Papers from Workshops on 

World Energy Supply and Demand, International Energy Agency, Paris, 1978, pp. 240-277. 

"A Price Forecasting System for Refined Petroleum Products," with G. R. Doenges, H. G. 

Huntington, and E. R. Novicky, a report submitted to the Department of Energy, Data Resources, 

Inc., JRB Associates, Inc., July 1978. 

"Structural/Econometric Modeling of Gasoline Consumption," Proceedings: Second Lawrence 

Symposium on Systems and Decision Sciences, October 1978, pp. 241-252. 

"Effects of Federal Policies on Gasoline Consumption," Foresight: The Economic Impact of 

Energy Conservation, Volume 3, Library of Congress, December 1978, pp. 241-225. 

"New Car Efficiency Standards and the Demand for Gasoline," in Advances in the Economics of 

Energy and Resources: The Structure of Energy Markets, Volume 1, Robert Pindyck (ed.), JAI 

Press, Inc., Greenwich, Connecticut, 1979, pp. 105-133. 

"U.S. Oil and Gas Supply Study," with J. P. Weyant, Proceedings: AIME Annual Meeting, 

Council of Economics, Las Vegas, Nevada, February 1980, pp. 73-84. 

"The Energy Modeling Forum, an Overview", in Validation and Assessment Issues of Energy 

Models, Saul Gass (ed.), U.S. Department of Commerce/National Bureau of Standards Special 

Publication 569, February 1980, pp. 65-96. 

Electric Load Forecasting: Probing the Issues with Models, Energy Modeling Forum Working 

Group 3, Volumes 1 and 2, Energy Modeling Forum, Stanford University, Stanford, California, 

March 1980. 

"Overview," in Electric Load Forecasting: Probing the Issues with Models, EMF Report 3, 

Volumes 1 and 2, March 1980, pp. 5-15. 

"Energy Problems and Policies," in The Economy in the 1980's: A Program for Growth and 

Stability, Institute for Contemporary Studies, San Francisco, Spring 1980, pp. 353-392. 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 113 of 129
Page 8 of 12 

"Energy Policies and Automobile Use of Gasoline," in Selected Studies on Energy/Background 

Papers for Energy: The Next Twenty Years, H. H. Landsberg, Spring 1980, pp. 93-125. 

"Energy and Economic Growth: A Conceptual Framework," in Symposium Papers: Energy 

Modeling and Net Energy Analysis, Institute of Gas Technology, Chicago, 1978; also in 

Mathematical Modeling of Energy Systems, NATO Advanced Study Institute, Istanbul, Turkey, 

1979; also in Directions in Energy Policy: A Comprehensive Approach to Energy Resource 

Decision-Making, B. Kursunoglu, A. Permutter (eds.), Fall 1979, pp. 115-140; also in Preprint of 

IBM Systems Science Symposium: Modeling and Prediction of Large Scale Systems, Nippon 

IBM Co., Ltd., September 1980, pp. 1-32 (volume title translated from Japanese).

"The Energy Modeling Forum: Past, Present, and Future," with J. P. Weyant, in Energy Policy - 

The Global Challenge, P. N. Nemetz (ed.) Institute for Research on Public Policy, Fall 1979, pp. 

292-320; also in Energiemodelle für die Bundesrepublik Deutschland, A. Voss, K. Schmitz, 

(eds.), Verlag TUV Rheinland Koln, Spring 1980, pp. 149-167. 

"Energy Modeling Forum 5: U.S. Oil and Gas Supply," in Energy Modeling III: Dealing with 

Energy Uncertainty, April 1981, pp. 283-303. 

"The Theory and Practice of Energy Aggregation," with A. B. Borison and T. F. Wilson, in 

Aggregate Elasticity of Energy Demand, Volume 2, Energy Modeling Forum. 

"Price and Quantity Change Decomposition for Aggregated Commodities," in Aggregate 

Elasticity of Energy Demand, Volume 2, Energy Modeling Forum. 

"Energy Modeling Forum 4: Aggregate Elasticity of Energy Demand," with W. W. Hogan and J. 

P. Weyant, Proceedings: Conference on Alternative Energy Sources. 

"Resource Depletion, Research and Development and the Social Rate of Discount: A 

Commentary and Extension," in The Rate of Return for Energy Investment, Robert Lind, Martin 

Greenberger, (eds.). 

"Model Comparison for Energy Policy and Planning," in Energy Policy Planning, Bayraktar, 

Cherniavsky, Laughton, and Ruff, (eds.), NATO. 

"The Relationship Between Energy Use and the Economy," in Energy Independence for the 

United States, Nake M. Kamrany, The Newport Foundation, 1981. Also published in U.S. 

Options for Energy Independence, Nake M. Kamrany, D. C. Heath & Co., 1982. 

World Oil, Energy Modeling Forum Working Group 6, Energy Modeling Forum, Stanford 

University, Stanford, California, January 1982.

"Energy Model Comparison: An Overview," in Large-Scale Energy Models -- Prospects and 

Potential, Westview Press, Inc., Boulder, CO, 1983, pp. 191-217. 

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 114 of 129
Page 9 of 12 

"Price Asymmetry in the Demand for Energy," with David Fenichel, Energy Demand Prospects 

& Trends, Paul Stevens (ed.) Camelot Press Ltd. Southhampton, Great Britain, 1987, pp. 48-70. 

Also in Papers and Proceedings of the Eighth Annual North American Conference, the 

Changing World Economy, International Association of Energy Economists, Cambridge, MA, 

May, 1987, pp. 218-222. 

"Principles of Geographic Market Definition," Manual on Antitrust Economics, Economics 

Committee Antitrust Division, American Bar Association. 

"Optimal Control and Time Consistent Equilibria in Dominant Firm/Competitive Fringe 

Dynamic Games," with Patricio del Sol, IFAC/IFORS/IAEE International Symposium on Energy 

Systems, Management, and Economics, October 1989, Tokyo. 

"Production Costs for Alternative Liquid Transportation Fuels," Methanol As An Alternative 

Fuel Choice: An Assessment, Wilfrid Kohl (ed.), The Johns Hopkins Foreign Policy Institute, 

Washington D.C., 1990. 

Fuels to Drive our Future, Committee on Production Technologies for Liquid Transportation 

Fuels, National Academy Press, Washington D.C. 1990. Principal Author, Chapter 3 and 

Appendix D. 

The National Energy Modeling System, Committee on the National Energy Modeling System, 

National Research Council, National Academy Press, Washington D.C. 1992. Principal Author, 

Chapter 3: "NEMS Architecture." 

"Economic Theory of Depletable Resources: An Introduction," Chapter 17 in Handbook of 

Natural Resource and Energy Economics, Volume III, A.V. Kneese and J.L. Sweeney (editors), 

North Holland, 1993. 

"Natural Resource Economics," in The Social Science Encyclopedia, Edition 2, Routledge, 

London 1996. 

 “Energy Economics”, In: Neil J. Smelser and Paul B. Baltes, Editor(s)-in-Chief, International 

Encyclopedia of the Social & Behavioral Sciences, Pergamon, Oxford, 2001, Pages 4513-4520 

(www.sciencedirect.com/science/article/B7MRM-4MT09VJ-PS/2/17641810797ce56d07449fd00b951033)

"Natural Resource Economics," The Social Science Encyclopedia, Edition 3, Routledge, London 

2004. 

California Public Interest Energy Research: Independent PIER Panel Report, Independent 

PIER Panel. California Council on Science and Technology, March 2000. 

California Public Interest Energy Research: Independent PIER Panel Final Report, 

Independent PIER Panel. California Council on Science and Technology, March 2001. 

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Page 10 of 12 

Energy Research at DOE: Was It Worth It? Committee on Benefits of DOE R&D in Energy 

Efficiency and Fossil Energy. National Academy Press, Washington, D.C. July 17, 2001. 

Effectiveness and Impact of Corporate Average Fuel Economy (CAFE) Standards. Committee 

on Effectiveness and Impact of Corporate Average Fuel Economy (CAFE) Standards. National 

Academy Press, Washington, D.C. July 30, 2001. 

The Hydrogen Economy: Opportunities, Costs, Barriers, and R&D Needs. Committee on 

Alternatives and Strategies for Future Hydrogen Production and Use. National Academy Press, 

Washington, D.C. July 2004 

Prospective Evaluation of Applied Energy Research and Development at DOE (Phase One): A 

First Look Forward. Committee on Prospective Benefits of DOE’s Energy Efficiencey and 

Fossil Energy R&D Programs (Phase One.) National Academy Press, Washington, D.C. 2005. 

“California Electricity Restructuring, the Crisis, and its Aftermath;” Chapter 10 in Electricity 

Market Reform: An International Perspective, Perry Shioshansi and Wolfgang Pfaffenberger

(eds.) Elsevier, April 2006 

“Hydrogen for Light Duty Vehicles: Opportunities and Barriers in the United States”, Chapter 17 

in Human-Induced Climate Change: An Interdisciplinary Assessment; Michael Schlesinger 

(Ed.), Cambridge University Press, 2007 

National Security Consequences of U.S. Oil Dependency. Independent Task Force Report No. 

58, Council on Foreign Relations, 2006. 

California Action Plan for Transportation Energy Security. California Strategic Transportation 

Energy Partnership. CalStart, January 2007. 

Prospective Evaluation of Applied Energy Research and Development at DOE (Phase Two.) 

Committee on Prospective Benefits of DOE’s Energy Efficiencey and Fossil Energy R&D 

Programs (Phase Two). National Academy Press, Washington, D.C. 2007. 

Liquid Transportation Fuels from Coal and Biomass: Technological Status, Costs, and 

Environmental Impact.) America's Energy Future Panel on Alternative Liquid Transportation 

Fuels; National Academy of Sciences; National Academy of Engineering; National Research 

Council. National Academy Press, Washington, D.C. 2009. 

America’s Energy Future: Technology and Transformation. Committee on America’s Energy 

Future; National Academy of Sciences; National Academy of Engineering; National Research 

Council. National Academy Press, Washington, D.C. 2009. 

“Market Failure and the Structure of Externalities”, Kenneth Gillingham and James Sweeney

in Harnessing Renewable Energy in Electric Power Systems, Boaz Moselle, Jorge Padilla, and 

Richard Schmalensee, (eds.), RFF Press, August 2010. 

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Page 11 of 12 

“Barriers to Implementing Low Carbon Technologies”, Kenneth Gillingham and James Sweeney 

in Climate Change Economics, Vol. 3, No. 4, World Scientific Publishing Company 2012 

OP/ED PIECES/Videos: 

“Integrate western power grid to reduce emissions, energy costs”, Sacramento Bee. March 03, 

2017. http://www.sacbee.com/opinion/op-ed/soapbox/article135866278.html 

“Increased Efficiency: Our Best Source of Clean Energy” POLICYed Video 

https://www.policyed.org/intellections/increased-efficiency, 2017 

“An energy resource any U.S. president could love”, The Hill. November 30, 2016. 

http://thehill.com/blogs/congress-blog/energy-environment/308170-cheap-clean-and-easilyaccessible-an-energy-resource 

SELECTED WORKING PAPERS, REPORTS:

"The Logic of Efficiency Standards and Their Influence on Gasoline Consumption," with M. E. 

Rodekohr and D. B. Cato, Working Paper, Federal Energy Administration, March 1975. 

The U. S. Oil and Gas Supply, Energy Modeling Forum Working Group 5. Energy Modeling 

Forum, Stanford University, 1981. 

"Time Inconsistency and the Advantage of Not Committing: The Importer of an Exhaustible 

Resource," with Patricio del Sol, Center for Economic Policy Research Working Paper, Stanford 

California, October 1988. 

"Price Oscillations in Oligopoly," with William Comanor, Center for Economic Policy Research 

Publication No. 181, Stanford California, January 1990. 

"Mandates for Alternative Fuels: A Policy Analysis," with David Montgomery, Charles River 

Associates, September 1991.

"Review of Transportation Fuels Analysis and Policy Recommendations in California Energy 

Commission: California Energy Plan," with David Montgomery, April 1992. 

"Mandating a Transition to Alternative Transportation Fuels: Economic, Environmental and 

Energy Security Implications," with David Montgomery, June 1992. 

"Gasoline Taxes: An Economic Assessment," Prepared for the Office of Technology 

Assessment, U.S. Congress, September 1993. 

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Page 12 of 12 

"Evaluation of the EPA's Proposal for Renewable Oxygenates," May 1994. Prepared for The 

American Petroleum Institute.

“Agricultural Damage of Common Crops and Externalities Associated with Bread 

Consumption,” May 1997, with W. David Montgomery, J. Eric Bickel, Graydon Barz, Wenlong 

Weng, and Fehmi Ashaboglu. EES&OR Department Working Paper. 

“Tradable Fuel Economy Credits. Analysis and Text Extended from Chapter 5 of 

Impact and Effectiveness of Corporate Average Fuel Economy Standards,” August 12, 2001. 

“Regulating Fuel Economy: Corporate Average Fuel Economy Standards,” Policy Brief, 

Stanford Institute for Economic Policy Research, March 2003. 

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http://peec.stanford.edu/library 

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Energy Efficiency Team, September 2008. http://peec.stanford.edu/library 

“Allocating Emissions Allowances Under a California Cap-and-Trade Program: 

Recommendations to the California Air Resources Board and California Environmental 

Protection Agency from the Economic and Allocation Advisory Committee” California Air 

Resources Board. March 2010. Authors: Justin Adams, Vicki Arroyo, Matthew Barger, James 

K. Boyce, Dallas Burtraw, James Bushnell, Robert Fisher, Richard Frank, Larry Goulder, Dan 

Kammen, Christopher R. Knittel, Stephen Levy, Joe Nation, Nancy E. Ryan, Nancy Sidhu, 

James L. Sweeney

“Assessing Changes in the Reliability of the US Electric Power System.,” Peter H. Larsen, 

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Hackett, Amy Jaffe, James Sweeney. September 2017.

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 118 of 129
Page 1 of 1

James L Sweeney

Litigation in which testimony was offered in the past four years

Phillips 66 Company, Successor-In-Interest to Tosco Corporation, And HDI-Gerling Industrie 

Versicherung Ag, Formerly Known As Gerling Konzern Allgemeine Versicherungs – Ag, 

Arbitration

John Ellison, Reed Smith LLP

Worked on behalf of Phillips 66

Written Testimony submitted, 2014

United States Enrichment Corporation v. Entergy Services, Inc., and Entergy Nuclear Fuels Company

Arbitration re Enriched Product Agreements

Worked on behalf of USEC

William Phillips, Covington & Burling LLP

Report and Hearing Testimony, 2015

Melissa D. Duflock, v. Chevron Corporation, 

Petroleum Royalties dispute

Worked on behalf of Chevron

Filed Declaration 2016

Deposition, 2016

The Enpex Corporation v. San Diego Gas and Electric Company

Dispute re Electricity Crisis Era proposal for a PPA or a turnkey plant.

Case No. 37-2016-00034956-CU-BT-CTL

Superior Court of the State of California, For the County of San Diego

Worked on behalf of The Enpex Corporation

David Kleinfeld, Thorsnes Bartolotta Mcguire LLP

Deposition, 2018

Appendix B

Case 6:15-cv-01517-AA Document 338-4 Filed 08/24/18 Page 119 of 129
Documents Relied Upon by Professor James L. Sweeney

Page 1 of 10 

Pleadings

Federal Defendants’ Answer to First Amended Complaint for Declaratory and Injunctive Relief, Kelsey Cascadia Rose 

Juliana et al., Plaintiffs, v. United States et al., Defendants, January 13, 2017

First Amended Complaint for Declaratory and Injunctive Relief, Kelsey Cascadia Rose Juliana et al., Plaintiffs, v. The United 

States of America et al., Defendants, September 10, 2015 

Expert Reports / Declarations

Declaration of James Gustave “Gus” Speth in Support of Plaintiffs’ Response in Opposition to Defendants’ Motion for 

Summary Judgment, June 27, 2018

Expert Report of Eric Rignot, Ph.D., April 11, 2018

Expert Report of James E. Hansen, Ph.D., April 13, 2018

Expert Report of James H. Williams, Ph.D., April 13, 2018

Expert Report of Joseph E. Stiglitz, Ph.D., April 13, 2018

Expert Report of Mark Jacobson, Ph.D., April 6, 2018

U.S. Code

26 U.S.C. § 45a

42 U.S.C., §7111

42 U.S.C., §7151

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Appendix C

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Appendix C

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U.S. Energy Information Administration, “May 2018 Monthly Energy Review”

Any other documents or materials cited in this report.

Appendix C

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