All posts tagged 'Global Warming'

The Most Extreme Weather is Climate Change at the Margins

September 8, 2010 16:53
by J. Wylie Donald
As the season of elections unfolds, I am reminded that "all politics is local." I think the same might be said for weather and we have had plenty of that this year. Some might say, "well, no more than anywhere else." But I would disagree, and the Baltimore Sun's September 8 front page story by Frank D. Roylance supports me. . Maryland this year has tied or set records for snowiest winter, snowiest February, hottest summer, the most 90 degree days, and the most 100 degree days. Couple that with drought conditions that have ruined the corn crop, brought summer vegetables in too early, threatens the soybean crop and may prevent the planting of winter wheat and barley, and I think it is fair to say that Maryland got extra in the weather department this year. So what does all this have to do with climate change. Quoting experts at the National Center for Atmospheric Research, the Sun provides one of the best explanations I have seen: "global warming's role is felt most when natural climate variability is already pushing weather events toward extremes.". By way of example, the impact of global warming is "if the drought starts to form, the onset is quicker; it's a little more intense and the heat waves are a little hotter . ... Sometimes it's the straw that breaks the camel's back, ..." This analysis is right on the money, and of great significance. Without climate change, natural climate variability will on occasion lead to extremes. Engineers incorporate those anticipated events into hurricane building codes, flood plain delineations, dam storage capacity and a host of other standards on which we rely. If the anticipated extremes are relied upon, and climate change pushes those extremes even further, then those standards may no longer be valid.  That may disrupt many sets of expectations. For a lawyer, this may mean that standard language may be inadequate to protect his client. If, for example, a contract does not require flood insurance because the property is outside the plotted 100-year floodplain, but climate change has enlarged the floodplain, then a bank's security may be at risk.  If a community's water supply is based on the local reservoir, but flood control requirements force lower water levels to accommodate the more severe storms predicted by climate scientists, counsel should be looking to protect her client's ability to conduct its business, including preserving water availability.  The point is not that climate change will force a wholesale revision of how business is conducted.  Rather, as is generally the case, success or failure will depend on how one attends to risks at the margins and in order to do that, one will have to understand them.  This applies not just to lawyers, but to anyone investing, or planning, or managing, or governing. Another famous saying concerns everyone talking about the weather, and nobody doing anything about it.  Some would say, that sounds just like politics. updated

Climate Change | Weather

Climate Change Disclosure at the SEC - A Move for Consistency

January 31, 2010 16:00
by J. Wylie Donald
It has been our view for a number of years that climate change disclosures are not for every publicly traded company. What is for each of those companies, however, is the need to take a close look at the risks and opportunities posed by climate change and to assess their importance for the company's specific circumstances. The Securities & Exchange Commission has now reached a similar conclusion. In a press release this past Wednesday, the SEC announced its decision (3-2 on partisan lines) to provide interpretive guidance on existing SEC disclosure requirements applicable to legal and business developments relating to climate change. As stated in the press release, http://www.sec.gov/news/press/2010/2010-15.htm, the Commission's interpretive releases "are intended to provide clarity and enhance consistency for public companies and their investors." As further stated by Commissioner Schapiro, the application of this guidance to climate change is not an opinion on "whether the world's climate is changing, at what pace it might be changing, or due to what causes." The SEC expressly was not "weighing in" on those topics. Nonetheless, some who are familiar with the SEC's inner workings were surprised and acknowledged that it is a big deal for the SEC to take such a step in confirming its interpretation of the applicable disclosure regulations as they relate to global warming risks. Environmentalists and leading state pension fund investors have long argued that the SEC should issue such guidance and formally requested such action in a peition filed with the SEC in 2007. The guidance identifies various areas where disclosure might be required: 1. Legislation and regulation that may impact a business. (e.g., the effect a carbon tax may have on revenue) 2. International agreements that may impact a business. (e.g., the lapse of the Kyoto Protocol may change the need for carbon credits) 3. Regulation and business trends that may have indirect consquences on a business (e.g., refrigerator manufacturers may need to assess energy efficiency as a business trend) 4. Physical impacts of climate change. (e.g., a shipping company may need to evaluate the effect of a melting icecap and the opening of the Northwest Passage) After reading this list, some will certainly conclude that the guidance offers nothing new. Each of these subjects falls within one of the disclosure requirements already on the books for many years. For example, Item 303 of Regulation S-K requires the disclosure in management's discussion and analysis of circumstances materially affecting one's business. If rising sea levels can be determined to pose a material risk to casino operators on the Atlantic seaboard, then disclosure is required. In similar fashion, brethren in Nevada may need to discuss the impact of perpetual drought in the American southwest. Whether these outcomes are the result of climate change is not relevant to the disclosure obligation. Whether they are material is. Likewise, Item 101 would capture disclosure of legislation and regulation material to one's operations. If a carbon tax or cap-and-trade program has a material impact on one's bottom line, one does not need the new guidance to make disclosure. On the other hand corporate disclosures to date are uneven. The Carbon Disclosure Project, http://www.cdproject.net, has been soliciting disclosure from the world's publicly-traded companies for several years. A review of those reports is striking in the variation of both the scope and detail of the disclosures. As a result of the guidance, however, one can now expect disclosing institutions to be reviewing the disclosures of their peers, in order to assess more precisely what needs to be said. The SEC's decision was not the first regulatory pronouncement on climate change disclosure. Last year the National Association of Insurance Commissioners promulgated rules for their regulated community (insurance companies). We do not expect the SEC's guidance to be the last word either. Regulated entities will do well to pay close attention.

Carbon Emissions | Climate Change | Legislation

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Click here for more information and a list of our group members.

MONTH LIST

© 2018 McCarter & English, LLP. All Rights Reserved. disclaimer
navbottom image