70 The Alabama Lawyer 358 (2009). Law in a Changing Climate.

• Author: BY D. BART TURNER and CHRIS J. WILLIAMS

The Alabama Lawyer

2009.

70 The Alabama Lawyer 358 (2009).

Law in a Changing Climate

Law in a Changing ClimateBY D. BART TURNER and CHRIS J. WILLIAMSMark Twain has often been quoted as saying "everybody complains about the weather, but nobody does anything about it." While people have and always will complain about the weather, now there are just as many who are looking for a way to do something about it.

This year the United States celebrated its 40th annual Earth Day - a day first set aside in 1970 to encourage awareness and appreciation for our planet's environment. In the wake of that first Earth Day, Congress began adopting legislation that formed the backbone of present-day environmental law and regulation. Indeed, the 1970s marked not only the creation of the U.S. Environmental Protection Agency but also the passage of a myriad of new laws aimed at addressing public concerns over air and water pollution, conserving natural resources, ensuring safe drinking water, protecting coastal areas, preventing extinction of endangered species, effectively managing chemicals and hazardous waste, and many others. While those laws have been amended and others added to the list, there has been no other comparable period over the last 40 years in which the federal government adopted such broad-sweeping environmental law and regulation. That is, until now. This year the United States appears to be on the brink of enacting new environmental legislation, unprecedented in scope, to tackle what is perceived by many as being the most significant environmental threat of the current generation - global warming.

All but those who maintain a strict no-media diet have at least some cursory understanding of "global warming" - the name given to the phenomenon associated with the average rise in temperature observed worldwide over the last century and the prediction that this trend will continue in the future. A majority of climate change scientists attribute this rise in temperatures to an observed increase in greenhouse gases (GHGs) since the Industrial Revolution. Those gases - carbon dioxide, methane and nitrous oxide to name just a few - are collectively named for their ability to trap heat within the Earth's atmosphere much like the glass panes of a greenhouse but on a global scale. To what extent global temperatures associated with this "greenhouse effect" - a natural phenomenon described by scientists over a century ago - can be influenced by human activities has, as most everyone knows, been the subject of debate over the last couple of decades. However, the political climate is changing much more rapidly than the Earth's climate. As a result, the scientific debate has taken a backseat in the drive toward reducing the volume of GHGs emitted into the atmosphere from human activities. Along with providing background regarding the momentum behind the urgency to enact some form of GHG legislation, as well as offering a forecast of what that legislation is likely to entail,(fn1) we offer some additional insights about how these changes may impact Alabamians in general and Alabama lawyers in particular.

The Environmental Climate

Although there is some dispute regarding the reliability of measurements, the last 150 years of reliable temperature records suggest a rise in average global temperatures by a little over 1 F. However, it appears that this warming trend has accelerated since the 1970s, and as of 2007, it has been estimated that 11 of the 13 warmest years on record occurred between 1995 and 2007. In the Southeast, along with measurable increases in moderate to severe drought conditions in the spring and summer months, the annual average temperature has risen about 2 F since the mid-1970s. Over the same period the concentration of carbon dioxide, methane and other GHGs, many of which are emitted by human activities such as the burning of fossil fuels, deforestation, agriculture and other industrial activities, have increased at levels that cannot be entirely attributed to natural causes. The correlation between increases in global temperatures and increases in GHGs was made before the turn of the 20th century, but in 2007, the U.N. Intergovernmental Panel on Climate Change concluded that "most of the observed increase in globally averaged temperatures since the mid-20th century is very likely [i.e. greater than 90 percent certainty] due to the observed increase in anthropogenic GHG concentrations."(fn2)

Predictions regarding the future impacts of this warming trend are fraught with uncertainty, particularly at the regional or local scale. Be that as it may, a balmier planet has already likely contributed to a measurable increase in sea levels over the last century due to the thermal expansion of ocean water as it warms in addition to the melting of land-based ice. Because a large percentage of the population in the Southeast lives along coastal areas, there are concerns that rising sea levels will contribute to contamination of coastal freshwater sources, submersion of coastal infrastructure and destruction of barrier islands which help protect that infrastructure from storm surges. Couple those concerns with the potential that higher ocean temperatures could lead to more frequent and intense tropical storms and hurricanes, and one can see why coastlines along the central Gulf Coast (already sinking as a result of both natural phenomena and human activities) may be particularly vulnerable. In addition, if future warming trends contribute to the growing frequency of drought conditions in the Southeast, the threats to the region's agricultural base and drinking water supplies brought on by last year's drought may become more commonplace. Less water in a region with one of the fastest growing populations (in some measure, due to the warmer climate) could make it even more difficult for southeastern states to equitably apportion water supplies. Specifically, Alabama, Georgia and Florida may find it harder to settle their decades-old dispute regarding whether the water in the Apalachicola-Chattahoochee-Flint River Basin should be delivered to the citizens of Atlanta or allowed to pass down to Alabama for hydroelectric power and flood control or to Florida's oyster beds.

To be certain, predicting the course of any global phenomenon decades, let alone centuries, into the future is far from an exact science. Assuming one could accurately forecast future warming trends and their associated environmental impacts, it is perhaps even more difficult to fully account for the resulting costs (and benefits) to society of a hotter planet. For example, as the Arctic melts and the fabled Northwest Passage becomes a reality, will the discovery of new oil and mineral deposits beneath the ice-covered waters or reduced shipping costs offset threats to coastal communities from rising seas or the encroachment of salt water into sources of drinking water? Moreover, it appears that even if immediate action is taken to reduce emissions of GHGs, it is unlikely to have any measurable impact on the current pace of global warming, at least in the short-term. Nevertheless, there is little doubt that the uncertainties associated with the environmental, economic and social impacts of climate change have taken a backseat to politics. Congress and the executive branch are now plowing ahead with initiatives aimed at trimming the emissions of GHGs generated in the United States. While there are more forces driving the country toward regulating GHGs than can be discussed here, in order to have some basis for understanding what approach the federal government is likely to take toward reducing emissions, there are several worth mentioning in some detail.

The Political Climate

International political pressure and the adoption of GHG reduction programs in other countries are high atop the list of driving forces for new national climate change legislation. The 1988 creation of the United Nations Intergovernmental Panel on Climate Change (IPCC) and its first report two years later, lead to the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) at the Rio de...