July 31, 2020

Climate change will cast a shadow over your law practice

Lawyers, take note: Climate change will affect your practice. It’s already impacting how we live our lives and how companies do business - which impacts the law, said panelists of the American Bar Association Annual Meeting Showcase Program, “Climate Change and the Legal Profession: Beyond Environmental Law.”

Clockwise from top left: Hillary Tompkins, Hana Veselka Vizcarra, Roger Martella and Michael Gerrard

Clockwise from top left: Hillary Tompkins, Hana Veselka Vizcarra, Roger Martella and Michael Gerrard

Infrastructure, insurance and real estate are all being shaped by climate change, said panelist Hana Veselka Vizcarra, staff attorney at Harvard Law School's of Environment and Energy Law program. For example, home buyers in coastal areas are moving away from 30-year mortgages because of the risk of sea-level rise, flooding and storms.

There are about 1,500 climate-related cases in the United States and more are added every week, said panelist Michael Gerrard, founder and faculty director of Sabin’s Center for Climate Change Law.

The corporate risks of climate change are generally divided into three categories -  liability risk, transition risk and physical risk, and litigation arises from all three, he said.

There are 15 liability risk lawsuits pending around the country right now, mostly brought by municipalities.

Transition risks arise when reducing greenhouse gases as the energy sector moves away from fossil fuels and toward clean sources of energy, mostly through the construction of new facilities.

Physical risk results from the physical impacts of climate change, such as wildfires, hurricanes and inland flooding. These kinds of events inevitably lead to a great deal of litigation over insurance coverage, and there is also litigation from landlord-tenant issues and mortgage defaults after a big disaster. “We’ll see that people no longer feel safe living in places or they can’t get mortgages,” Gerrard said.

Finally, moving forward there may be litigation arising from failure to adapt to climate change, such as when architects, engineers or builders design structures that do not withstand damage from climate-change weather crises.

“All in all, climate change is already leading to a considerable amount of litigation that involves not only environmental and energy lawyers, but lawyers across a broad spectrum of practice areas,” Gerrard reported.

It’s also important for lawyers to have a very firm understanding of administrative law as it relates to climate change, advised panelist Hillary Tompkins, a partner at Hogan Lovells and a former solicitor of the Department of Interior. Administrative law is coming up in how government addresses climate issues through regulations, as well as approval of large energy projects, she explained.

“We’ve got a battle of ideologies in energy law between the current administration emphasizing energy dominance and supporting fossil fuel development, contrasted with the Environmental Protection, conservation and climate-change adaptation ideology,” Tompkins said, detailing many of the regulation rollbacks under President Donald Trump.

“These (rollbacks) are all being challenged in court,” she said. “I see, interestingly enough, a lot of judges have decided what is viable as a policy shift instead of the executive branch.”

It’s yet to be seen how the COVID-19 pandemic and resulting economic slowdown will affect climate change legal issues, but moderator Roger Martella, general counsel for General Electric, said it could result in a greater emphasis on science and evidence-based decision making. “I think we have to really learn the lessons of the pandemic, that it also applies quite squarely to scientists. When they tell you that there is a real risk, we have to take that risk very seriously and make preparations for it,” he said. “I can’t tell you that I’m confident that that will happen, but I think that is a lesson that we absolutely should draw from the pandemic.”

“Climate Change and the Legal Profession: Beyond Environmental Law” was sponsored by the ABA Section of Energy, Environment and Resources and the ABA Science & Technology Law Section.