July 07, 2020

Views from the Chair

Judy Perry Martinez and Tracy Hester

This is my last column in what has been a most unusual year for all. I want to thank everyone who has helped me navigate the on-the-fly changes we had to make to protect the health and safety of our members, guests, and staff. I would also like to extend my sincere thanks to our ABA president, Judy Perry Martinez; and to Tracy Hester, chair of the Climate Change, Sustainable Development, and Ecosystems Committee; Amy L. Edwards who headed up our Climate Task Force; and Michael Cummings, who put together a biweekly Climate Update for SEER and ABA leadership. Climate change is one of, if not the most important issue, facing the world. In recognition, I have ceded my last column of the year to President Martinez and Professor Hester to allow them to highlight the steps the ABA and SEER have taken to raise awareness of climate change issues and prompt real action to find solutions to the crisis we face.

––Karen Mignone, Section Chair

First, we want to thank Karen Mignone for sharing her column space with us. We appreciate her willingness to dedicate the column to climate change and the role lawyers and the American Bar Association can play, and to underscore the focus and commitment of the Section of Environment, Energy, and Resources to this, a most critical issue.

The ABA strongly supports action to address climate change, and that commitment led the ABA House of Delegates in August 2019 to adopt its climate change resolution (Resolution 111) as ABA policy. This ABA policy resulted from a long, and often robust, dialogue by advocates from all sides of the climate legal arena to define the proper role for lawyers in addressing climate change. Among its several provisions, the policy calls for a reduction of greenhouse gas emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science. The resolution also urges the United States to participate in the United Nations Framework Convention on Climate Change, as well as other international treaties, to reduce greenhouse gas emissions and adapt to climate change. The policy encourages lawyers to engage in pro bono activities to address climate change and advise their clients of the risks and opportunities that climate change provides.

We aren’t the only lawyers in this effort. For example, the International Bar Association recently adopted its own resolution in May 2020 to emphasize the importance of addressing climate change.

The coronavirus pandemic has sharply highlighted the need to deal with the challenges of climate change. The disruption caused by the virus has created a cascade of unexpected effects on our energy and environmental infrastructure. The widespread economic shutdown in the United States, combined with an unexpected price war over oil between Russia and Saudi Arabia, led to an astonishing destruction of demand for petroleum. Prices for oil on the U.S. spot market dropped into negative territory for the first time, and the energy sector has already seen waves of furloughs and cancellations of projects. According to a recent BW Research report, the U.S. energy sector has lost 1.3 million jobs since the start of the pandemic—a 13 percent decline. The renewable energy sector has also experienced disruption, lost momentum, and widespread job loss. The U.S. solar sector alone, according to the Solar Energy Industries Association, has lost 65,000 jobs and erased five years of jobs growth. But at the same time, the sudden halt of urban traffic caused startlingly blue skies over cities around the world in a signal of air quality improvement that now seems an attainable goal rather than an impractical dream.

We stand at a moment of reinvention. The widespread damage that the pandemic has wreaked on the energy and industrial sectors has opened a debate on how to rebuild and recover. Congress has already heard the first arguments as both chambers debate how much, if any, economic aid should go to the oil and gas sector, and how much assistance should be provided to green infrastructure and renewable energy initiatives. As the economy begins to slowly revive, that debate will become more urgent, and it will spill out into other arenas in state government, global finance markets, academic institutions and research, and municipal and local policies and incentives.

In the meantime, the legal profession—from law schools to the energy and environmental bar and beyond—can and should play a critical role in the debate. Our profession has a responsibility at least to gain a basic understanding of the science and to craft the policies needed to restart our energy and industrial sectors after COVID-19 has passed. The lawyer’s role will only grow if, and as, the shift from carbon-intensive energy sources accelerates, coal-fired power continues to dwindle as a portion of the national energy mix, and the financial sector determines whether to continue extending credit or capital to the oil and gas sector.

The courts will also host this growing struggle as climate change lawsuits swell in the docket. The expanding number of climate damage lawsuits brought under state and local laws by municipalities, counties, and states will require judges and lawyers to learn new industries, examine old ones, and understand their greater cultural context. We will also stand at the forefront of legal work challenging and defending securities disclosures about climate risks, takings claims that governmental actions responding to climate disruptions have caused a loss of property or legal rights, and allegations that governments or corporate management have failed to satisfy their fiduciary duties in certain contexts to address climate change effects that threaten natural resources or corporate assets.

Like most sectors, the legal profession itself contributes to greenhouse gas emissions, albeit at a far smaller scale than manufacturing or energy production. We need to deal with our own contributions, and the legal community has already risen to that call. The Section’s past ABA-EPA Law Office Climate Challenge and the American Legal Industry Sustainability Standard, in particular, show how law firms and lawyers can take individual steps to ensure their practices and work environments promote sustainability.

Climate change remains the defining challenge of our times—even in the shadow of pandemic and economic disruption, it poses the looming danger that requires enormous, sustained, and historic effort to forestall. Lawyers sit at the switchyards for all of the critical legal issues that will shape societal actions that best meet the needs of citizens, industry, government, and nature. This defining challenge is both the greatest opportunity—and the weightiest obligation—of our generation of lawyers and one that must be fostered beginning in law school. As members of the ABA; the Section of Environment, Energy, and Resources; and the greater legal community in the United States and throughout the world, may we all rise to meet the challenge.

Judy Perry Martinez and Tracy Hester

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Judy Perry Martinez is the president of the American Bar Association.

 

Tracy Hester is a professor at the University of Houston Law Center and chair of the Section of Environment, Energy, and Resources’ Climate Change, Sustainable Development, and Ecosystems Committee.

 

Karen A. Mignone is the director of Sustainability for Qualus. She is the chair of the Section of Environment, Energy, and Resources.