It's Earth Day. Do you know where your lawyer is?

I have been having numerous conversations over the past few weeks about the state of sustainability and the law.  From the sheer number of articles, conferences, and, yes, blogs on the subject, you would think that there would be lawyers nation (and even world) wide with thriving practices in green law.  The reality appears to be the opposite.  Even so-called green law experts are more theoreticians than practioners.  On this Earth Day, where are the lawyers?

1. Clients are ignoring the green components of legal transactions--A friend of GBLB who is an expert on green leasing told me that tenants and landlords are ignoring the green aspects of the leasing transactions. They nod interestedly at educaitonal sessions, and keep doing things the old fashioned way.

2. Green certifications is extralegal--No lawyers are required for LEED certification, for example,  and there is no appeal to a public authority for LEED certification.

3. There is no major federal green legislation--Environmental law did not take off as a profession until the early 1970s when major federal environmental legislation was passed.

4. Wasting resources is not illegal--There is no penalty for using too much energy or water.  Until there is someone who is regulating these areas, the amounts at stake in contractual relationship are generally  too small or to inconsequential to the whole project to litigate, especially in these resource constrained times. 

So what does this mean? Is there no future for green law? Should I pursue my medical license? 

1.  Resources are finite.  At some point, market forces will raise the stakes on energy, water and other commodities. When they become valuable enough, people will fight over access and usage of these finite resources.

2. Building regulation is coming--CALGREEN just imposed the first statewide mandatory green building code, and California often acts a precursor for where the rest of the nation will go in environmental regulation.

3.  Cap and Trade will change everything. Major federal regulation of carbon will cause litigation over the regulations themselves (there was decades of legal wrangling over the Clean Air Act and the Clean Water Act), the transactions, the requirements and so forth.

Maybe by the 45th anniversary of Earth Day, the field of green law will have developed.  

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N.P. - May 10, 2010 8:18 AM

Great entry. Very insightful and unfortunately, right on. It's always disheartening to be at the table of a particular project, knowing that several of the parties (sometimes your clients even) are wondering: what is the lawyer doing here?

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