It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.
Members of the legal profession are bound by a code of professional ethics that applies in the state in which they practice, and this code spells out their professional responsibilities to their clients, to the legal system, and to broader society. As Flatt explains in an article in the current issue of the Environmental Law Institute's Environmental Forum, it's time to review these rules of professional responsibility through the lens of climate change. In particular, his article looks at the climate implications of Rule 1.6 from the American Bar Association's (ABA) Model Rules of Professional Ethics, which governs attorney-client confidentiality. (Most states have adopted or based their respective legal codes on the ABA's Model Rules.)
Section (b) of Rule 1.6 outlines several exceptions to the general rule of confidentiality. Flatt argues that one of these exceptions has particular significance for attorneys that represent the fossil fuel industry. One exception either permits or even requires (depending on the state) lawyers to reveal otherwise privileged information if they have a reasonable belief that it is necessary "to prevent reasonably certain death or substantial bodily harm." By now, the evidence of the risks that climate change poses to human life and safety, and the contribution of fossil fuels to those risks, is beyond dispute. The question that Flatt examines is to what extent do considerations of professional ethics permit attorneys to disclose information about how their clients' activities are contributing to climate change and the potentially existential threat it poses to humanity.
Flatt also recently had the opportunity to discuss these issues on the Law to Fact podcast. You can give it a listen here. Flatt's analysis is drawn from a longer article that will appear in the spring edition of the 2020 Utah Law Review and will be featured in a national webinar hosted by the Environmental Law Institute this spring.
Other professions, including medicine, are starting to grapple with the implications that climate change holds for them. It is long overdue for other legal professionals to join Flatt in doing the same for the legal profession.
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Victor Flatt | January 15, 2020
It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.
Daniel Farber | January 13, 2020
Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.
Daniel Farber | January 10, 2020
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
Daniel Farber | January 6, 2020
Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years.
James Goodwin | December 30, 2019
Here, in no particular order, are ten stories I will be following over the next year that could determine whether we will still have a regulatory system that is strong enough to promote fairness and accountability by preventing corporations from shifting the harmful effects of their activities onto innocent members of the public:
Daniel Farber | December 23, 2019
Like many humans, the Twenty-First Century’s teenage years were stormy.
James Goodwin | December 20, 2019
For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.
Dave Owen | December 18, 2019
This morning E&E News reported that researchers from the Netherlands and Environmental Defense had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane. That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0.
James Goodwin | December 17, 2019
Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including the unique potential of the regulatory system as an institutional means for promoting a more just and equitable society.