Climate Change Legal Work: Changing The Paradigm Does Not Come Easily

by McCarter & English: Climate Change & Renewable Energy
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I learned the other day that for $3995 I can download nearly a 1000 page report on the climate change industry.  The Ah Hah moment was at hand.  The President’s promise at his inauguration and then again at the State of the Union was upon us.  Here it would be revealed what the small group of lawyers focused on climate change law were looking for:  where is the legal work?  But I am a cautious consumer.  The publisher anticipated my skepticism and offered the table of contents for my review for free.  I didn’t even have to give my email address.  It was an offer hard to turn down.

The TOC was extensive.  Pages and pages chronicled the following industry segments:  Solar Energy, Wind Energy, BioEnergy, Geothermal Energy, Wave & Tidal, Carbon Capture & Storage, Energy Efficiency & Demand Response, Energy Storage, The Green Building Industry, Carbon Markets, Adaptation, Climate Change Consulting, and Transportation.  And under each of these segments one can find pages of company "profiles", presumably businesses with expertise in Wind Energy or Adaptation or Green Buildings.  Even lawyers were able to claim a niche.  Seven firms filled out “Law Firms and Climate Change Practices.”

But as we all know, saying you’re doing something, and actually doing it, can be two entirely different things.  Here’s a different measure:  how many clients attend climate change legal seminars?  I have a bird’s eye view on this topic:  I gave one at the end of last month, Climate Change and Insurance:  Recent Litigation and Regulatory Developments.  The attendance was astounding:  2 insurance companies, 29 law firms (but including none of those "profiled" – maybe that should tell us something), and NO ONE ELSE. 

Could it be that most insurers and all non-insurers have all the climate change related insurance issues already figured out?  Would they get 100% on this little quiz:

  • What is the atmospheric public trust doctrine and how is it being used to address regulation of greenhouse gas emissions?
  • Are there any decisions in support of finding that carbon dioxide is not a pollutant within the meaning of a pollution exclusion in a general liability policy?
  • How do building height restrictions affect rebuilding after Superstorm Sandy?
  • Do pollution exclusions negate coverage for improper climate change disclosures?
  • Does a title policy insure against rising sea levels?
  • Are insurers of last resort (wind pools, beach pools) increasing market share and what are the implications of that?

Anecdotally, I know that most, if not all, would struggle merely to get a C.  But so what?  One can’t sell ice in the wintertime or neckties in a nudist colony.  As lawyers we provide a service to clients with the need for that service.  It is not what we want to sell, but rather what they want to buy.  And there is the secret.  Thomas Kuhn wrote a magnificent work explaining how scientific paradigms shift (think the change from a Ptolemaic universe (the sun revolves around the earth) to a Copernican one (the earth revolves around the sun)).  Presently, the received wisdom is that while climate change is happening (I acknowledge that some still have not received even this idea), it is incidental to the larger issues and can be addressed accordingly. 

I submit that that is, like Ptolemy’s world-view, a paradigm that can be improved.  For example, if one is intent on acquiring property at the Shore, one can buy in fee simple, take a ground lease, or take a shorter term commercial lease.  If one is not actively considering the implications of sea level rise in the fundamental choice of the form of the transaction, one is at risk of finding oneself literally under water with no succor. If in contract documents one is making representations and warranties identifying all releases  of “hazardous materials” (broadly defined to be any substance regulated under environmental laws (a common approach)), without scheduling one’s HVAC systems, one is almost assuredly making inaccurate warranties because virtually all entities are emitting carbon dioxide.  If one relies on a flood plain map for planning purposes, without recognition that all flood plain maps are flawed because they only look backward (i.e., they assume the past accurately predicts the future, which is emphatically not the case in a world of climate change), one is again assuming a large risk.  I could go on. 

The point is that the risks and possibilities of climate change are ubiquitous.  Our job as advocates and wise counsel to our clients is to assist the change to a perspective Copernicus might have adopted, one that incorporates climate change in the larger view.  As demonstrated by the attendance at my seminar, we have a long way to go in that regard.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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