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Climate Change and the Law: What You Need to Know

We get it … it’s hard to focus on law school when there’s a growing climate crisis right outside your door. So is there a place within the law to fight climate change? Absolutely. If you’re a law student worried about what the planet might be like in 30 years, you may want to consider specializing in climate change law and regulation. As we face the reality of wildfires, floods, extreme weather, and rising seas and the planet continues to heat up, institutions are navigating an increasingly complex maze of legal risks and regulations associated with the climate crisis, so there’s a huge need for students who wish to create change on a global level. 

What is climate change?

In general, climate change refers to a long-term shift in typical weather patterns. For all of us here on planet Earth, it refers to the unsettling rise in temperatures across the globe from the mid-20th century to the present — a change scientists largely attribute to human activities, like burning fossil fuels, including oil, coal, and natural gas.

In 2015, governments around the world came together in Paris and agreed (via the Paris Agreement) to limit global warming from rising above pre-industrial levels by 2 degrees Celsius (3.6 degrees Fahrenheit), preferably limiting increases to 1.5 C (2.7 F). The reason for these targets? Scientists warn that heating the planet beyond this level would result in catastrophic weather crises, which may include emergency-level wildfires, flooding, droughts, and cyclones in many parts of the world.

How is climate change evolving?

There’s been a steady stream of bad news over the past few years, and the new Intergovernmental Panel on Climate Change report for 2021 really takes the cake. The report concludes that it’s beyond doubt that human influence has warmed our planet. That report states that so much CO2 and other greenhouse gases have been pumped into the atmosphere that global warming will continue until at least the middle of this century, even if every nation takes immediate action to significantly reduce their emissions today. 

Governments, companies, and individuals around the world are being forced to consider what actions they can take to help achieve these targets. For example: 

  • Governments are setting domestic emissions targets, regulating industries, introducing carbon taxes, and considering how to deal with the migration of populations affected by climate change. 
  • Companies are reconsidering their approach to managing climate change, including identifying new climate-related risks to their business operations, turning away from oil and gas production, and improving the sustainability of their manufacturing and production lines. 
  • Individual consumers are choosing to purchase electric vehicles, selecting ethically sustainable banking and investment products, and embracing sustainable eating practices. You can now get your favorite Impossible burger at any Disneyland… yes, please! 

Tackling the climate crisis will require a pervasive presence of the law as the guiding tool and cross-coordination across a variety of legal disciplines. Many legal tools are being used to drive climate action. Here are a few ways the law will come into play in terms of climate change: 

1. International Law 

The international community has come together many times over the past few decades to address the issue of climate change through international treaties. Most recently, the Paris Agreement aims to limit global warming and works on a five-year cycle of increasingly ambitious climate action.

America’s commitment to the Paris Agreement has been contentious, to say the least. We were in, then out, and now we’re back in again. President Obama formally entered the U.S. into the Paris Agreement through executive order. President Trump campaigned on a platform of withdrawing from the agreement throughout the 2020 election. One day after he was elected, Trump formally withdrew the U.S. out from the agreement. As one of his first actions from the Oval Office, President Biden signed a new executive order recommitting the U.S. to the agreement and has laid out an ambitious climate agenda.

Where lawyers can make a difference: To meet their international commitments, governments will introduce a range of regulations domestically (further discussed below). Attorneys play a fundamental role in ensuring their clients are compliant with these international commitments and staying ahead of any expected regulations and how they might impact their clients. 

2. Administrative and Regulatory Law 

Addressing climate change and meeting international commitments will involve government agencies at all levels. What kind of changes could we see the government make? The U.S. Environmental Protection Agency (EPA) could change clean air or water standards, or the IRS could implement a carbon tax. During his time in office, President Obama imposed tailpipe emissions standards on vehicle manufacturers. 

How lawyers can make a difference: Attorneys help their clients review these types of government decisions through administrative law reviews. They also provide advice to clients on how to comply with these regulations, such as by amending their products and practices to meet new standards. 

3. Litigation

Climate change-related litigation is on the rise with companies, insurers, governments, and environmental activists bringing and defending lawsuits. So… who is suing whom? Plaintiffs are increasingly suing companies that contribute to climate change with the goal of changing corporate behavior. Some suits brought by plaintiffs such as environmental groups or the government against corporations seek to stop behavior that will harm the environment. Other suits brought by shareholders or regulators focus on ensuring companies disclose accurate information about climate change and its potential impact on their business — after all, this information is material to the companies’ share price. Shareholder groups also engage in direct activism by buying large portions of shares in companies and seeking to pass climate-related resolutions.

And, of course, the physical impact of climate change, such as flooding, fire, and hurricanes, will inevitably lead to insurance-related claims, as insurers reassess the amount of coverage provided in high-risk areas. 

How attorneys can make a difference: Families, companies, and governments expecting insurance coverage could find themselves tied up in lawsuits, the value of their property declining and assets stranded. Litigators will play a critical role in helping clients bring or defend these types of suits in court and will need to be familiar with climate-related case law. 

4. Infrastructure and Projects:

Governments around the world are planning and investing in clean transportation, water, and power infrastructure, the remediation of polluted areas, and upgrading the resilience of existing infrastructure against climate change. Additionally, governments are re-assessing and canceling approval for infrastructure projects that have significant environmental impacts (i.e., the Biden administration recently canceled the permit required for the Keystone XL crude oil pipeline from Canada into America). 

How attorneys can make a difference: All of these infrastructure projects require attorneys to write contracts and provide advice for meeting climate-related regulations. Attorneys and law firms are also joining forces to fight climate change through organizations such as the Net Zero Lawyers Alliance. The American Bar Association adopted a resolution on climate change and is calling for attorneys to take on climate-related matters pro bono.