The Evolving Role for Transactional Attorneys Responding to Client Needs in Adapting to Climate Change, 47 J. Marshall L. Rev. 543 (2013)

Abstract

This article seeks to characterize and define the role of the transactional attorney as clients, especially commercial real estate clients, respond to adaptation to climate change. It rests on the scientific evidence that climate change is caused principally by emission of greenhouse gases and will cause serious and mostly negative impacts. The goal here is 1) to recognize the almost unquestionable conclusion that climate change exists and will have an impact on many aspects of life including the rule of law, 2) that adaptation to climate change must happen and sooner rather than later, 3) that this adaptation is expensive and likely will be financed by a variety of players, including both government and the private sector, 4) that law necessarily will change (or adapt) along side the adaptation to climate change, 5) that transactions clients and their lawyers will need to be aware of are relevant law, know how it affects the clients' business, and know how the transactions attorney can help these clients achieve their business goals.This article considers these likely changes in the law for several categories of clients. In addition to business companies, it looks at the effect of activist investors and the insurance industry, which traditionally protects clients from risks. Because of the author's familiarity with transactions and the practice in the context of the commercial real estate industry, case studies to demonstrate themes will focus on clients involved in the acquisition of real estate, the financing of acquisitions and construction, commercial leasing, ownership & management of real estate to determine what the adaptation might be, how the law might change to respond to it and how the transactional lawyer will function. Part I focuses on the distinct role of the transactional attorney as a "transaction cost engineer." Part II provides a basic introduction to the science of climate change. The difference between the mitigation of climate change and adaptation to climate change is discussed. the three fundamental responses of adaptation are considered (defend in place against the impacts of climate change; retreat from the impacts of climate change and accommodate the impacts of climate change). Part III examines proposals for the likely changes to the law and legal system to reflect adaptation to climate change. Economic costs of adaptation to ensure the resilience are huge and are being recognized by the business community. Other barriers to climate change are becoming clear as well. Adaptation is a catalyst to thinking about the emerging law regarding climate change. A review of various academic thinking on how the law will change/adapt itself is discussed.Part IV considers the role of the transactional attorney as the law adapts to climate change.Part V expects that affected businesses, investors, government disclosure requirements, rules affecting availability of insurance are drivers of focus on the changes. Part VI provides a transactional case study: development of a real estate project after Hurricane Sandy to suggest adding adaptation to climate change to the typical checklists.