"I believe in science." And then what?

I am sure you heard Hillary explain last night why she is going to take action on climate change. "I believe in science."  We weren’t so articulate when we counseled last week to “Go to the Data,” but she figured it out.  No plagiarism issues either. 

As practicing lawyers, however, belief is tricky.  We may believe, but our clients don't. Or we believe only in some things, but not in others.  And anyway, why does belief matter?  What matters is achieving the client's goals using the law and if denying climate change delays regulation by several years and saves the client several million, or even several thousand, dollars, then non-belief is appropriate. 

We don't dispute that conclusion but feel compelled to point out its limitations. First, belief or non-belief does not stop a rising sea. When fecal coliform levels in Biscayne Bay, Miami surge on the strength of a king tide, or nuisance flooding in Norfolk, Virginia closes roads, one’s position on climate change does not keep one’s shoes dry.  Nor does one’s belief status affect the impact of changing weather patterns on storm water flows through and around underdesigned storm drains in Chicago or wildfire-incinerated homes in Southern California. King Canute could not stop a rising tide, regardless of the strength of his courtiers’ beliefs.  The same rule applies here.

Second, there is an element of legal risk in non-belief.  If one’s client denies the effects of climate change, and climate change effects are at some point determined to be material, liability may follow.  The Securities and Exchange Commission has interpretive guidance addressing the climate change disclosures required by public companies.  Peabody Energy settled with the SEC over inadequate disclosures, including its climate change disclosures.  Real estate expectations can be impaired by rising sea levels.  Virginia passed a law amending the Virginia Residential Property Disclosure Act to ensure that disclosure of flood issues is raised in every residential real estate contract.   This may act to shield sellers; it is not so clear that the diclosure provision alone will protect other parties (read lawyers) to the transaction. 

Third, the act of denial itself may land a company in hot water.  In a bitter dispute ExxonMobil is being investigated by over a dozen State Attorneys General for its denial of climate change.   Allegations by the AGs include consumer fraud and securities fraud.  Exxon has fought back by suing two of the AGs for violation of its civil rights.  House Republicans are investigating the New York AG. 

The operative word in climate change is change (not climate).  Science is documenting that change.  As we counsel our clients, we need to do more than believe.

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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