I began working in the renewable energy industry in 1979 and I published my first reports addressing climate change (we called it “global warming” then) in 1990, but we have now entered a new era: climate change is altering the legal landscape. That means your organization has to pay attention to how the law is changing in this field. The big challenge is that it doesn’t always announce itself as “climate law.”
Take Land use, for example: California communities must now assess the climate change impacts of their general plans, zoning, and development decisions when conducting environmental impact reports (EIRs) under the California Environmental Quality Act (CEQA). Sprawling development patterns mean more vehicle miles travelled in cars—which mean more greenhouse gas emissions. SB 375 therefore requires regional governments to develop Sustainable Communities Strategy that will reduce sprawl, vehicle travel, and greenhouse gas emissions. We will soon see a new wave of litigation under both CEQA and SB 375 regarding SCSs.
Air quality regulation is clearly entering the climate change era: the California Air Resources Control Board (CARB) has adopted a wide range of strategies, including a cap-and-trade system and complex offset protocols, to implement AB 32. The U.S. EPA has adopted its own greenhouse gas emissions regulations for new power plants (now before the U.S. Supreme Court after surviving a challenge before the D.C. Circuit Court of Appeals) and will release regulations for existing power plants soon [update: they were released on June 2, 2014]. International negotiators are trying to reach a post-Kyoto deal by late 2015.
But Water law may be the first to feel the strain of the changing climate: as more and more precipitation falls as rain rather than snow, California water managers will have to make tough choices like those facing them during our current extended drought. Infrastructure assets like roads and levees are also threatened by rising sea levels, increased volatility (and therefore a higher risk of flooding), and other forms of extreme weather (increasing both agricultural pumping as well as summer peak energy demand—placing greater strain on hydropower generation and fisheries).
Each and every one of these areas of law will be shifting in the coming years due to climate change—which means that both economic and environmental assets will be threatened. Expect big fights in both the legislature and the courts over these shifts. I’ll be commenting on the latest climate change-related legal changes in this blog.
So send me either your problems or your solutions—I’m here to help clients (whether private, public, or nongovernmental) navigate climate change law.