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Bar News - May 18, 2007


Environmental Law: Counseling Organizations on Global Warming

By:

 

One can’t help hearing about global warming these days: it has become a staple of the media, and while the subject has largely been confined to the scientific and political arenas in the past, it has lately become an issue that organizations—including business entities, non-profits, state agencies and municipalities—need to be aware of. The role of attorneys, both in-house and outside counsel, will be key to guiding organizational clients as the issue evolves.

           

The sentiment that something must be done to address the problem is growing. It’s still early in the game and it’s still unclear what the full impact of global warming will be upon the environment—and on everyday life—but the potential for legislative and regulatory action is a clear and present concern. Recently, the Supreme Court of the United States took a position on the issue in Mass v. EPA, finding that the EPA can regulate greenhouse gases. This decision has given the EPA marching orders of a sort, although it is still uncertain how or when the Agency will act. Notwithstanding any action on the EPA’s part, it is likely that Congress will move forward with plans to deal with the issue soon. State legislatures will also become involved with legislation of their own on global warming, and don’t discount action that may be taken by state regulatory bodies.

 

The Organizational Client

           

Where does this leave the organizational client? Terms such as emission capping, carbon offset trading, neutral carbon-footprint and renewable energy sources are sure to overwhelm and cause confusion. Whether global warming legislation and regulation will even apply to an organization’s activities will have to be decided. And of course, with regulation and legislation comes the specter of potential litigation for non-compliance.

           

So where does an attorney start when counseling an organization on global warming issues? Here are a few suggestions:

 

           Familiarize yourself with both sides of the question.

                       

In the media, politicians and other sources claim that the debate is over; however, there are differing viewpoints from respectable sources about the causes and long-term effects of global warming. An organization that relies on reports in the media and on political positions as its sources of information can understandably become agitated about the issue and make decisions based on heightened emotions rather than sound business sense.

                       

An attorney’s objectivity and ability to distill information on global warming into plain language and concepts that an organization can understand and use will be crucial in its decision-making. Being familiar with both sides of the debate will help an attorney counsel the organizational client on emerging trends of global-warming policy and at the same time weed out the elements that border on hysteria.

 

           Keep an organization informed of legislative action related to global warming.                      

While there are several forms it might take, legislation will become a reality—and with an election year approaching, it may become reality sooner than later. In the wake of Mass v. EPA, state legislatures may introduce laws to curb greenhouse gas emissions, either through energy policies in disguise or carbon offset trading schemes or a combination of both. In particular, be aware of efforts by the legislatures and regulators of California and Massachusetts, as laws and regulations these states introduce/pass may be used as the model for other states.

                       

Also, watch for legislation at the federal level. It is worth noting that a bill has already been introduced in the House of Representatives that would authorize federal agencies to purchase carbon credits to offset their emissions. Similar legislation could be introduced at the state level. Furthermore, an organization that is engaged in international ventures should be aware of the emerging trends in global-warming policies and regulations in those countries where it carries on its activities.

 

           Encourage an organization to develop a policy concerning global warming.

                       

An organization should take the initiative when dealing with the issue of global warming and not be caught flat-footed. Appearance is everything for an organization, and not taking action could be viewed as not being caring or concerned. Developing a policy is one measure that an organization can take to demonstrate that it is conscious of the issue.

                       

Having a policy on global warming may also be essential for an organization that deals with or receives funds from the federal, state or local government. An organization that has a policy regarding global warming will also be in a better position to defend its image if it becomes the target of activism.

 

           Pay attention to global warming issues in the federal courts.

                       

Mass v. EPA is just the opening shot. Several federal court cases are pending that are related to global warming. With the stance the Supreme Court has taken, organizations can expect to see more such cases move through the federal courts, including those in which states may sue the federal government to enforce or recognize global warming regulations.

 

The Future of the Issue

           

Global warming will no doubt prove to be one of the more contentious and challenging issues that organizations will face during the coming months and years. With informed legal counsel to guide them, however, they don’t have to face the challenges alone and uninformed.

 

Michael J. Listner has been an NH Bar member since 2003 and served on the Legislative Committee for 2004-05. He is a member of Civil Air Patrol and holds the rank of Captain. He also writes on international space law and policy, including space property rights. Contact him at michlis@metrocast.net or 207-457-3959.

 

 

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