The Heat Is On

Fears over global warming are keeping local environmental attorneys busy 

Published in 2007 Alaska Super Lawyers — September 2007

The glistening, snowy flanks of Mount Rainier replaced by a dry, rocky facade. The carpet of Douglas firs metamorphosed into cottonwoods. Salmon displaced by hake. Palm tree-lined boulevards in Bellevue; desert-scaped yards in Laurelhurst. Water rationing, heat stroke and mosquitoes year-round.

If global warming goes unchecked, Washington state could look a lot different in a century, according to many experts. The Climate Impacts Group at the University of Washington predicts that, by 2080, average temperatures in the state could be about 5 ½ degrees warmer than in 1999.

As dire as this vision is, a couple of factors have kept it low on the radar screen for most Washingtonians, until recently. First, the pace of climate change is fairly leisurely on a human scale: An average temperature rise of a couple degrees would take several decades. Second, to what extent this vision will actually become reality is still uncertain. But lately, the amount of discussion about the issue has increased dramatically. At least one local law firm has assembled a climate-change task force to address its clients’ concerns.

Media reports about global warming—including Al Gore’s film An Inconvenient Truth—are one reason for the heightened awareness. Another is a state law signed this year by Gov. Chris Gregoire that represents the state’s most comprehensive attempt at climate-change legislation. It sets aggressive goals for reducing greenhouse-gas emissions, including prohibiting Washington utilities, as of July 2008, from making long-term purchases of electricity originating from high carbon-emitting sources like coal, unless those emissions are permanently “sequestered” in rock.

The state’s goal over the next 43 years is to reduce Washington’s greenhouse-gas emissions to half what they were in 1990, and to more than triple the number of jobs involved in producing clean energy.

A recent state study predicted the consequences of climate change will ripple through the economy, bringing higher costs for water; a longer, more devastating forest-fire season; and infrastructure needs such as a redesigned seawall in Seattle and preparations in Olympia for a possible 2-foot rise in sea level.

The legislation—and all the disquieting forecasts—have raised eyebrows in the business community.

“Environmental issues are a ‘hair-on-fire’ issue this year,” says Brad Marten, founder of Marten Law Group, an environmental law practice. Craig Trueblood, who handles environmental law at K&L Gates, agrees: “It’s part of the conversation with just about everybody we deal with. There’s been an exponential increase [in interest about the topic], and this has caught some people by surprise.”

Environmental law attorneys are tackling a raft of climate-related issues: how global warming will affect corporations and individuals, what problems it will cause, what opportunities it might bring. “People come to us with a business problem” relating to climate change, Marten says. “It’s not necessarily a legal problem, but all of a sudden, our environmental and legal expertise is important.” There are significant economic issues, he explains. “For instance,” says Marten, “for large agricultural companies, there are legal liabilities: For example, ‘Will I be required to reduce livestock emissions of methane? It’s 17 times as efficient [potent] as a greenhouse gas as CO2. Will I have the water to run my business? Will the growing season change?’”

K&L Gates has put together a climate-change task force. “It includes people from different practice groups: environment, natural resources, energy, construction and so on,” says Trueblood. “We’ve started trying to help clients figure out their ‘carbon footprint’ and we’re working with groups who are trying to create carbon ‘sinks’ [for long-term carbon absorption and storage]: forest-products companies, for instance.”

Richard Du Bey (Short Cressman & Burgess), whose client list includes the Confederated Tribes of Colville Reservation and the Puyallup Tribe, says climate change presents unique challenges for Native Americans. “The difference between Indian peoples and the rest of us is that reservation land tends to be the glue that holds them together. Unlike the rest of American society, which is mobile, Native Americans may be the most at risk with climate change.

Short Cressman & Burgess holds yearly seminars for its tribal clients. Du Bey says global warming was the topic this year for the first time. “We opened up a discussion about what climate change will mean in terms of tribal resources. For instance, do treaty rights follow the resource? If lower river flows are going to impact fish runs, how does that affect treaty agreements?”

Awareness and mediation of global warming is slowly percolating into every niche of environmentally oriented legal work. Stephen Horenstein, with Miller Nash’s Vancouver office, says climate change per se is not yet part of the conversation with his clients, but environmental consciousness is. “We’re working on a very large project, a casino and hotel, for the Cowlitz Tribe, which will have many ‘green’ aspects to it. Although it’s on the Lewis River, we will discharge almost nothing into it—no sewage, no temperature rise.”

“There’s a great deal of uncertainty about climate-change regulation,” Marten says. “And it’s very difficult to navigate because there’s no federal regulation. The Bush administration deals with climate change on a voluntary basis. So you have to look at it state by state, or municipality by municipality.”

But there are also opportunities. Marten Law Group just opened an office in Portland, in part to assist clients with climate-change regulations. Marten adds, “Carbon trading [capping carbon emissions, then allowing carbon emitters to buy and sell their rights to emit carbon] might become the biggest commodities market in the world.” And, he says, “I tell my kids, ‘Forget about the Internet. Figure out clean-energy technology. That’s going to be the top, or one of the top, opportunities in your lifetime.’”

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