Climate Change and Your Law Practice

Barbara Engstrom, Executive Director, King County Law Library

In the past, a climate change practice might have been primarily limited to environmental laws dealing with technical, regulatory aspects of carbon emissions. The collapse of the Surfside condominium tower, the “heat dome” that brought Las Vegas-level temperatures to Seattle, and the shroud of wildfire smoke that increasingly envelopes the Puget Sound each summer are all stark reminders that the effects of climate change are pervasive and are already impacting virtually every practice area.

It was less than a decade ago that the ABA began the push for rules requiring a duty of technological competency for attorneys. Who would have imagined that in 9 short years that we would be at the point where attorneys working from home and remote court operations would become the norm? To illustrate how quickly regulation can fall behind practice norms, there are 11 states that still do not have a requirement for attorney technology competence, with California only recently approving their rule in February 2021.1

With the increasing speed and compounding effects of climate change, a duty of climate competency for attorneys may be the next attorney competency on the horizon. The ABA has already begun to lay the groundwork with Resolution 111 passed in 2019 which concluded with the exhortation to attorneys to “advise their clients of the risks and opportunities that climate change provides.”2

Within law schools there is an emerging recognition of the need for integration of climate-related instruction beyond niche environmental law seminars and into the core curricula. 3 This goes hand-in-hand with the understanding that attorneys already in practice will increasingly be called upon to provide climate-competent representation regardless of their practice area.4 The following practice areas offer a sampling of what climate change will have in store for attorneys. In good news, there are tools and resources currently being developed that will help attorneys transition to climate-competent representation.

Rising Seas & Coastal Law

Almost every article discussing the Surfside condominium collapse poses the question whether climate change played a role. Regardless of the cause of the collapse in that instance, saltwater intrusion from rising sea levels and severe and frequent storms surges are certainly taking a toll on coastal properties both around the world and closer to home in Washington State. Accretion and subsidence of beach profiles will affect not only the associated property lines but will also impact intertidal aquaculture and coastal freshwater aquifers.5 Part of an attorney’s due diligence for these types of issues will likely involve tracking sea level rise projections for affected properties or industries. Resources like the Washington Coastal Hazards Resilience Network will help attorneys understand sea level rise projections along with risk reduction strategies. https://wacoastalnetwork.com/

Corporate and Securities Law

Corporate

For years corporate involvement in climate-related issues was often relegated to lip-service proclamations that did little other than greenwash a business-as-usual approach. With the acceleration of climate-related litigation however, corporate attorneys are having to reassess exposure as more litigants are choosing to sue corporations for climate impacts rather than focusing primarily on governments.

The key areas of concern for corporate lawyers have been in legal risks from clients, shareholders, consumers and, increasingly, developing government legislation.

But lawyers are increasingly embroiled in avoiding or dealing with the results of transitional risks, notably that of stranded assets, where poor investment decisions on long-lived assets can lead to liability during their lifetime. These transitional risks arise, for example, when greenhouse gas emission limits are tightened in line with climate science, leading to costly upgrade or closure, when a given carbon-intensive or renewable energy technology becomes obsolete and when coastal developments become uninsurable as they are ill-equipped to withstand rising sea levels, storms and flooding. Investors are asking more questions, becoming more activist, and there is growing pressure to divest from carbon-intensive assets. 6

Securities

As financial regulators continue to study the issue and determine how to address impacts of climate change, companies are forging ahead with their own risk/opportunity analysis and disclosure protocols at the behest of investors who want more and better information regarding the effects of climate change on financial assets. These voluntary measures are impacting the course of regulation. Harvard’s Energy and Environment Law Program has a Financial Regulator Climate Action Tracker that monitors developments at various regulatory agencies to update the emerging regulatory landscape. They also have a continually updated Timeline of Investor and Bank Use of Climate Information to give a bird’s eye view of the impact of climate information at financial entities over the last few years.7

Columbia Law School’s Sabine Center for Climate Change Law also has several interesting resources for adapting to climate change for businesses and investors, including Legal Tools for Climate Adaptation Advocacy: Securities Law. 8 The Congressional Research Service Report, Climate Change Risk Disclosures and the Securities and Exchange Commission (April 20, 2021) is also worth a read. https://crsreports.congress.gov/product/pdf/R/R46766

Contract Law

A major component of climate-competent representation involves contract drafting. Climate-conscious contracting helps attorneys manage foreseeable risks, remain in compliance with climate regulations, and respond to consumer demands for climate action. The Climate Contract Playbook, a fantastic, free resource makes this drafting much easier. The Playbook is product of the Chancery Lane Project, https://chancerylaneproject.org/ a world-wide, collaborative effort of attorneys to develop contract language to address climate change issues. The Playbook includes model contract clauses organized by industry and glossary entries to assist in drafting climate-aligned contracts. The industries covered include corporate, insurance, real estate, construction, employment, and litigation & arbitration among others.9

Insurance Law

As climate change-related wildfires, hurricanes, and other natural disasters continue to increase in frequency and intensity, the impacts are felt not only in the immediate environs but have collateral impacts that affect supply chains, energy markets, and local economies. As more of these events occur, insurance rates will rise, and as insurance rates become less affordable, rates of private insurance will go down, potentially leaving states and local governments left holding the bag.

The impact of wildfires on the insurance market seems to be a bellwether for the industry. Generally, homeowner’s insurance covers wildfire loss. However, in many wildfire prone areas, insurers are cancelling existing policies or refusing to insure in the first place, which can impact mortgages. Taking mitigation measures can sometimes help get insurance reinstated but the issue is also causing many to question whether municipalities need to start declaring highly prone wildfire areas off limits to new development.10

Current, standardized insurance models will soon be outstripped by climate-related events and their corollary impacts. The book Climate Change and Insurance11 is available for checkout at KCLL and will help attorneys understand the intersection of climate change and insurance, especially with regard to general commercial liability, directors & officers liability, professional liability and renewable energy-related policies along with other potential liability and exposure drivers.

Conclusion

The aforementioned represent the tip of the (melting) iceberg of practice areas impacted by climate change. For more information on how you can prepare for climate-competent representation, check out the multitude of resources at the King County Law Library. Be sure to use our remote resources from the comfort of your home or office. www.kcll.org. As always, if you need assistance on the or any other topic, please feel free to contact us at services@kcll.org.

 

1 See Bob Ambrogi, California Becomes the 39th State to Adopt Duty of Technology Competence, (March 24, 2021) https://www.lawsitesblog.com/2021/03/california-becomes-39th-state-to-adopt-duty-of-technology-competence.html

2 American Bar Association House of Delegates, Resolution 111’August 12-13, 2019) https://www.americanbar.org/content/dam/aba/directories/policy/annual-2019/111-annual-2019.pdf

3 See Warren G. Lavey, Toolkit for Integrating Climate Change into Ten High-Enrollment Law School Courses, 49 Envtl. L. 513, 516 (2019)

4 See Warren G. Lavey, Training All Law Students and Lawyers for Climate-Competent Representation, (April 23, 2020) https://www.iucn.org/sites/dev/files/content/documents/2020/training_all_law_students_and_lawyers_for_climate-competent_representations.pdf

5 See D.D.Huppert, A. Moore, & K. Dyson, The Washington Climate Change Impacts Assessment: Evaluating Washington’s Future in a Changing Climate, Chapter 8 (Climate Impacts Group University of Washington 2009). doi:10.7915/CIG0MS3K2

6 See Paul Hatchwell, Corporate Lawyers in a Climate of Change (International Bar Association) https://www.ibanet.org/article/82bd7fb4-c46c-4819-a56f-be9d7f683fa6

7 https://eelp.law.harvard.edu/climate-related-disclosure-and-financial-risk-management/

8 See Securities and Climate Finance, https://climate.law.columbia.edu/content/securities-and-climate-finance

9 DLA Piper has a nice overview of the Climate Contract Playbook https://www.dlapiper.com/pl/poland/insights/publications/2020/11/contracting-for-the-climate-the-climate-contract-playbook-is-a-trove-of-climate-clauses/

10 Sophie Quinton, As Wildfire Risk Increases, Home Insurance is Harder to Find (Jan 3, 2019) https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/01/03/as-wildfire-risk-increases-home-insurance-is-harder-to-find

11 Christina Carroll, Climate Change and Insurance Law, (ABA 2012) https://kcll.bywatersolutions.com/cgi-bin/koha/opac-detail.pl?biblionumber=3966 (FYI – this is the most recent edition of this book)