From withdrawing from the Paris Climate Accord to the aggressive restructuring of environmental regulations, the Trump administration has already had a clear and strong impact on environmental law.
The administration plans to revoke or weaken substantial Obama era policies like the Clean Power Plan and the Waters of the United States rule. Working with congress, Trump killed the stream protection rule which guarded streams from being inundated with coal mining waste. Interior Secretary Ryan Zinke ended the moratorium on leasing federal land for coal mining and began exploring options for oil and gas drilling in the Atlantic and Arctic. EPA administrator Scott Pruitt has moved to dismantle or restructure at least 30 environmental rules since his tenure began.
All of these actions could have grave impacts on the environment and environmental law, Professor Michael Gerrard explained. “Those are some of the high points or low points depending on how you describe it,” he said.
For law firms, these changes could mean anything from a boom in land contract negotiations for oil and gas drilling companies to a proliferation of lawsuits brought by environmental nonprofits against coal companies and other greenhouse gas heavy industries.
Gerrard is the director of the Sabin Center for Climate Change Law at Columbia University’s Law School and has practiced environmental law since 1979. He also serves as a consultant to the government of the Marshall Islands on the complex legal questions that arise as the island nation disappears into the ocean from sea level rise.
A West Virginia native, he was inspired to enter the field partially because of the water and air pollution he saw growing up near the state’s chemical plants. Shortly after graduating from NYU’s law school, he cut his teeth in environmental practice at a boutique firm in New York and later as a partner at what is now Arnold & Porter Kaye Scholer.
Big Law Business spoke with Gerrard about Trump’s impact on environmental law so far and what that means for law firms. The conversation is condensed and edited.
Big Law Business: When the government makes an attempt to reduce regulations, what impact does that have on the regulated industry?
Gerrard: It may make life easier for a time for the relevant industries. It also slows down technological innovation that arises to comply with the regulations. It abandons the benefits of the regulations. What Trump persistently ignores is that every regulation is imposed for a reason: to protect public health and safety and environmental quality. We saw very starkly the negative impacts of deregulation with the horrific fire in London a few weeks ago, which by all accounts was caused or worsened by lax building codes.
Big Law Business: What legal challenges do you see these rulings having?
Gerrard: Just about everything that Trump does to loosen or slow down regulations will be challenged in court. We saw the important preliminary victory with the D.C. court’s ruling on the attempted immediate stay of the methane rule. I think the environmental community will use every legal tool available to fight back against all these measures. We’ll see particular attention to the cases with the administrative procedure act. Several lawsuits have already been filed and the methane rule has been successful. Environmental lawyers around the country have mobilized.
Big Law Business: With regards to enforcement of environmental law…
Gerrard: There’s strong apprehension that environmental enforcement and companies will feel emboldened to skirt or violate the law because the odds of getting caught or at least seriously penalized may well be plummeting.
Big Law Business: Do you see a field of environmental law that will get hot soon?
Gerrard: I think there’s going to be increasing attention paid to the impacts of climate change on business and property. We’re already seeing parts of the country impacted, such as South Florida, Norfolk, Va. and elsewhere. Flooding is becoming an increasingly difficult issue in many parts of the country and it will just get worse. This will lead to liability claims against property owners, against cities, against architects and engineers who design and build structures that can’t withstand anticipated flood events. Increasingly the investment community is concerned that the value of many businesses especially those with a lot of coastal real estate will be greatly impaired. I see this as an area of increasing litigation for years to come.
Big Law Business: Can you compare that to another legal scenario?
Gerrard: Asbestos was widely used for decades. Then it was found to have serious health effects. Here we have a known hazard and there are tools available to abate the hazard but they’re mostly not being used. There have been a number of cases over the years where architects or engineers have been found liable for designing structures that did not withstand foreseeable floods. None of them were about climate change but the same principles apply.
Big Law Business: Where will this litigation be focused?
Gerrard: Not only in South Florida; it can happen on Long Island. It can happen on Cape Cod. It can happen on the Gulf Coast. There are many places where this can happen.
Big Law Business: Can you talk about the Marshall Islands? What is your role with that nation? What have you been working on with them?
Gerrard: In late 2009, shortly after I came to Columbia, the ambassador to the U.N. of the Marshall Islands contacted me and said “some year, we’ll be under water.” That poses a whole host of novel legal challenges and questions. If a country is under water, is it still a state? Does it still have a seat at the United Nations? What happens to its exclusive economic zone and fishing rights. Who will take us in? What will our citizenship be? Do we have any legal recourse against the countries who have done this to us? Growing out of that, I convened an international conference here in May of 2011, cosponsored with the Marshall Islands. I’ve been there twice and provided pro bono advice on a number of matters related to the threats posed by sea level rise.
Big Law Business: Other than climate change law are there any other fields you see burgeoning?
Gerrard: There’s a lot of attention right now on drinking water contamination. We’re seeing more cases about drinking water contamination around the country. The fracking boom has also lead to litigation of many kinds. We’ve been seeing a tremendous increase in the construction of wind and solar facilities. That will inevitably lead to many more transactions involving financing or real estate contracting and other issues. Litigation will surely follow.
Big Law Business: If Trump is successful in undoing the clean power plan, what could that mean?
Gerrard: It will mean that some of the old dirty coal fired power plants will continue operating longer and maybe more intensively. It will also slow down the growth of renewables and efficiency.
Big Law Business: What kind of lawsuits could come from that?
Gerrard: Administrative lawsuits against regulators happen all the time. We have seen common law nuisance cases for many years. Those tend to be more successful when they’re about conventional air pollutants that have an immediate effect on the neighbors of the plant. It’s more difficult when it’s about greenhouse gases which have a global impact but aren’t necessarily worse than they are for neighbor than people around the world.
Big Law Business: The most recent fight was the Paris Accords. What do you see as the next big fight?
Gerrard: Air pollution rules save tens or hundreds of thousands of lives a year. We’ll see how many of those Trump and Pruitt will try to dismantle. We’ll see how much public outrage that creates.
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