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Unpublished Paper
Stormy Weather Ahead? The Legal Environment of Global Climate Change
ExpressO (2007)
  • Richard O. Faulk
Abstract
Whether one believes, as a matter of science, the problem of climate change is real or imagined, exaggerated or understated, there is no doubt that the legal storm has already broken – and those legal issues present real risks and real benefits that can only be ignored at our clients’ peril. At the very least, the discussions in this article demonstrate the necessity for counsel in all types of practice to be informed of these dangers and opportunities presented by global climate change – sufficiently informed to understand the basic facts, identify the legal issues, and to approach them as problems to be solved, not causes to be hyped. As counsel – entrusted with serving our clients’ best interests – our responsibility is to further their interests zealously within the bounds of the law. Those interests can only be served adequately when our zeal is informed and tempered by minds open and alert to the stormy road ahead, and sufficiently prepared to take advantage of its opportunities – or provide shelter against its fury. This article is written to lay the foundation for a constructive dialogue about the legal issues raised by global climate change. It does not presume to offer comprehensive solutions – such an exercise is impossible without an understanding of individual client circumstances – but it summarizes the issues and identifies many questions that affect clients’ business operations. The article first provides a primer on the background of the climate change controversy, and then traces the history of its scientific underpinnings. It then examines the regulatory environment that has evolved and is currently being used to address climate change concerns at the international, national and state levels, and studies various methods by which advocates have employed common law theories, such as public nuisance, to motivate judges to curtail behavior that allegedly contributes to climate concerns. Finally, the article addresses the difficult problem of advising publicly held clients regarding disclosure of information relating to these concerns, as well as problems that may arise in the course of transactional due diligence.
Keywords
  • global warming,
  • climate change,
  • public nuisance,
  • standing,
  • political question,
  • carbon trading
Disciplines
Publication Date
October 3, 2007
Citation Information
Richard O. Faulk. "Stormy Weather Ahead? The Legal Environment of Global Climate Change" ExpressO (2007)
Available at: http://works.bepress.com/richard_faulk/2/