Environmental law enters the era of global warming
Climate change offers business opportunities as a new law practice
area
By Diane Curtis
Staff Writer
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The “third wave” of the environmental movement has arrived in
response to global warming, says Sean Hecht, executive director of UCLA’s
Environmental Law Center, and lawyers, as in the past, are critical actors
in whatever form that response takes.
The first wave came with enactment in the early ‘70s of the Clean Water,
Clean Air and Endangered Species acts. The second wave began in 1980 with passage
of the Superfund law, which imposed a tax on the chemical and petroleum industries
and gave the federal government more authority in citing companies for releasing
hazardous substances into the environment.
Now, says Hecht, who is chair of the State Bar’s Environmental Law Section,
comes the third wave. “Most policymakers and scientists believe if we
don’t do anything about climate change, it’s going to have a significant
impact,” says Hecht, adding that attorneys are needed in every phase
of the action.
For many California lawyers, that action began years ago with the first rumblings
that the world was getting dangerously warmer. Conscientious environmental
lawyers were already keeping up on environmental issues, including global warming,
through the popular media, scientific journals and seminars, as well as the
Internet.
“We do have a climate change practice involved in several different
areas of climate change,” says Peter Weiner, who heads the West Coast
environmental practice of Paul, Hastings, Janofsky & Walker. “We’re
involved in this on a national and international scale, and we’ve been
involved with it for some number of years.” The areas of involvement
include both the transactional and regulatory side of climate change, including
carbon trading, carbon caps, carbon sequestration (storage of carbon underground
or in the ocean) and promotion of wind and geothermal energy. “It’s
very important to keep ahead of the curve,” says Weiner. “If you’re
an energy company, a venture capitalist looking at clean tech funds, if you’re
almost any business these days, you have to know something about climate change.
Plus, it’s important to a lot of philanthropists who are looking where
to direct their investment.” The firm also does corporate finance for
energy companies.
Despite the growing general interest in global warming, the California focus
became even more intense in September when Gov. Schwarzenegger signed a landmark
bill, AB32, that calls for a reduction in California’s greenhouse gas
emissions to 1990 levels by 2020. The legislation is the model for greenhouse
gas emission reduction bills not only in other states but around the world.
Fernando Villa, a shareholder and environmental attorney with Greenberg Traurig
in Santa Monica, says his firm is ahead of the game because its environmental
specialists had a voice in crafting the bill by offering expertise and opinions
during public hearings on the legislation. “One of the wonderful things
about getting involved in new legislation when it’s passed is we become
as expert as anybody,” says Villa.
The legislation as well as the daily international interest in global warming
is keeping California lawyers busy. Villa says that although he has a strong
background in the environment in general and climate change in particular,
through both interest and necessity, he is “hitting the books” even
more. There’s nothing pleasurable, he says, when “clients come
in, ask a question and you don’t know anything about it.” His firm
represents “clients across the spectrum,” including investors,
developers, manufacturers, individuals and trade organizations. He foresees
a host of activities for his firm, from advising clients on how to meet new
emissions standards to being ready for possible litigation and challenges to
new rules and how they are enforced.
Practice groups in environmental law have been or are being set up in a number
of firms, including Villa’s. More lawyers are being hired, either as
environmental specialists or to free the environmental specialists already
at the firms to concentrate on the ramifications of the landmark legislation.
The Los Angeles firm of Dongell Lawrence Finney LLP was created in 2004 in
direct response to the environmental movement, with climate change a major
consideration. Partner Tal Finney, a former adviser to Gov. Gray Davis and
long-time government policy expert, says his firm will be representing companies
as AB32 enforcement issues emerge, but its partners also want to “actively
engage” in promoting environmental health. Already, the firm has helped
create companies aimed at exporting Iceland’s geothermal expertise and
Germany’s solid waste conversion knowledge. “What we do is we try
to create companies that can create sustainable and renewable energy,” says
Finney. “The real effort in the legal community to do its part is to
lead the way.”
That’s not to say he won’t be representing industry, including,
say, the trucking industry, as regulations come down the pipeline. But the
public should not think that the lawyers’ goal is to get around the regulations
or water them down because they’re representing the industries that will
be affected. “Our clients want to do the right thing,” he says.
Implementation of new environmental regulations, which cost industry money,
boils down to “a balancing act.” The environmental laws have no
real meaning, Finney says, until they are applied to current industry realities. “Policy’s
real important to me. I want to see it implemented and sometimes you have to
be in the private sector to implement it.”
“If we were really as stringent as we should be in regard to diesel,
there would be no trucking,” Finney says. “You might as well put
Santa Claus out of business.” So the goal is to implement regulations
over time and in a reasonable manner. He wants to help his clients follow the
new rules and at the same time advocate for a practical implementation that
allows them both to comply and stay in business. “It’s an evolutionary
process,” he says, adding that the progression is inevitably toward more
stringency, not less. “It’s going to get stricter and stricter
and stricter over time,” he notes. “Remember the ‘70s? You
couldn’t even breathe in L.A.”
Dongell Lawrence Finney is a full-service firm with an emphasis on environmental
law. It started with 13 lawyers and has grown to about 25. Finney says that
while having lawyers with a science background is a plus, it’s not absolutely
essential even though the field ultimately requires a rudimentary knowledge
of some chemistry, physics and even geophysics. Law school environmental programs,
Finney says, “have gotten really sophisticated” and graduates are
joining firms with good skills. What firms are mostly looking for, he says,
are “hungry young lawyers — very bright and very focused on working
hard and having a passion for what they do.”
Firms are taking it upon themselves to keep their environmental lawyers up
to speed through seminars, conferences and other educational offerings. Finney
also praises the State Bar’s Environmental Law Section for being a valuable
networking source with knowledgeable environmental lawyers that also offers
constant educational activities. Finney and Villa are members of the section’s
executive committee. Firms themselves, he adds, provide their own classes and
important on-the-job training.
Kenneth Alex, an adviser to the Environmental Law Section and a lawyer with
the Attorney General’s office, handles many of the agency’s global
warming cases which, to date, have included being a party to the case that
was recently before the Supreme Court. It’s an issue the AG’s office
has been looking at for some time, both as the legal representative for state
agencies and as an enforcer of state statutes.
“From our perspective, it’s fairly obvious that global warming
will be one, if not the single most important, issue of the coming year,” says
Alex. “Almost every issue you can imagine,” he says, naming as
examples foreign policy and energy security, “has an environmental aspect,
and global warming is a really good example of that. Environmental law and
environmental issues are aspects of societal issues. I find it endlessly interesting.”
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