The American Bar Association (ABA) has adopted a resolution urging all levels of government as well as the private sector to “to recognize their obligation to address climate change and take action” to “[r]educe U.S. greenhouse gas emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science.” The ABA’s House of Delegates, the policy-making body for the organization, adopted the resolution without dissent at its annual meeting in San Francisco.
The resolution also urges Congress to adopt legislation using “a broad range of legal mechanisms, including but not limited to market-based mechanisms and removal of legal barriers to reduction of greenhouse gas emissions.” Congressional legislation, the resolution said, should “[p]rovide for a just transition for the people and places most dependent on the carbon economy.” Legislation on reducing greenhouse gas emissions and adapting to climate change, the resolution also said, should be based on “sustainable development principles” in order to “simultaneously promote economic development, social well-being, national security, and environmental protection.”
In addition, the American Bar Association urges the United States government to “engage in active and constructive international discussions under the United Nations Framework Convention on Climate Change.” The United States, the resolution adds, should “remain in, negotiate, or ratify treaties and other agreements to reduce greenhouse gas emissions and adapt to climate change.”
Finally, the resolution urges two kinds of actions by lawyers. First, it “urges lawyers to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change.” Second, it urges lawyers “to advise their clients of the risks and opportunities that climate change provides.”
This resolution builds on a significant history of ABA support for action on climate change. The ABA House of Delegates adopted a resolution in 2008 urging Congress to adopt cap-and-trade legislation to address climate change. In 1991, 2003, and 2013, the ABA House of Delegates urged policy makers and lawyers to recognize and support sustainable development. According to the report that accompanied (and is attached to) the new resolution, a major motivation for the new resolution is the increasing urgency of the science. “In the more than a decade since the 2008 resolution, the scientific community has even stronger evidence that climate change is occurring, is mostly caused by human activities, and is already having adverse consequences.”
Unlike the 2008 resolution, the new resolution urges action, not just by Congress, but by “federal, state, local, territorial, and tribal governments, and the private sector.” That is consistent with the finding in Legal Pathways to Deep Decarbonization in the United States (Michael B. Gerrard & John C. Dernbach eds. 2019) that more than a thousand legal tools are available federal, state, tribal, and local governments as well as the private sector to reduce greenhouse gas emissions by at least 80% by 2050. Another distinguishing feature of the new resolution is recognition of the importance of lawyers in addressing climate change.
A major question looking ahead is what the ABA will do to implement the resolution. The ABA has had programs to recognize law offices for actions that they have taken to use less paper and energy, and to encourage law firms to adopt a sustainable development framework for their practice. As the report for the new resolution states, “The new need for additional legal work is enormous.”
The ABA can build on work that is already being done. According to a 2017 article in the Denver Law Review, many lawyers are already integrating climate change and sustainable development counseling into their law practice. As Professor Gerrard and I have explained elsewhere, many law firms have committed pro bono time to turn the recommendations contained in Legal Pathways into model legislation or other legal instruments. A growing number of other law organizations are also active in this space, including (but not limited to) A Call to the Bar, the Law Firm Sustainability Network, Lawyers for a Sustainable Economy, the Sustainable Future Section of the Oregon State Bar, and Oregon Lawyers for a Sustainable Future.