A Lucrative Micro-Niche: Climate Change Practice (Part 2)

Topics: Business Development & Marketing Blog Posts, Client Relations, Climate Change, Law Firm Profitability, Law Firms, Leadership, Legal Innovation, Micro-Niche, Midsize Law Firms Blog Posts, Practice Engineering, Small Law Firms

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In the first installment in this two-part series, we examined how the issue of climate change has risen to become a potentially lucrative micro-niche practice. Now, we’ll look at what actions some lawyers and law firms can take to stake a claim in this field.

Oil companies are taking climate change litigation cases very seriously. Exxon Mobil, the world’s largest, launched a million-dollar push in 2018 for carbon tax legislation that includes immunity from climate change-related lawsuits. Exxon is also facing lawsuits for allegedly misleading investors about the risks of climate change to its business as well as the risks of future climate regulations.

Claimants are beginning to use probabilistic arguments and combine individual emitters’ climate impacts with event attribution — for example, citing rising sea levels in one geographic area that is causing damage in some way to another area. The courts are being asked to deal with arguments and facts related to climate change and climate science that were previously not presented with cases arising in the context of constitutional and administrative law, human rights, shareholder activism, and consumer protection.

Complicated Factors Involved

There are a number of complicating factors in all of this. One is that every tier of government has pursued policies that have encouraged the use of fossil fuels, from building highways to subsidizing airports to constructing greenhouse gas-emitting power plants. So, if an oil and gas company can be held liable for carbon dioxide emissions, so too perhaps can city governments, power companies, and automakers.

Another complicating factor may occur where a plaintiff may have difficulty demonstrating a particular injury since climate change is something that affects the whole world in intricate ways… unless perhaps you are a fisherman or farmer. In one case launched by a group of Oregon and California fishermen against 30 fossil fuel companies, the fishermen pointed direct to monetary harm that had already occurred from global warming.

As climate disruption continues, insightful attorneys might also expect to see (and serve) a huge groundswell of startups aiming to help save the planet while making a little profit for themselves.

From the legal community, most plaintiff attorneys — like the firm Sher Edling, which is acting on behalf of the state of Rhode Island and suing 26 companies for the city of Baltimore; and Hagens Berman Sobol Shapiro in the Northwestern US — are operating under contracts that award them 20% or more of any judgment or settlement. This the type of contingency-fee agreement yielded billions of dollars in fees in tobacco litigation and hundreds of millions of dollars more in lawsuits by government entities against drug companies and polluters.

Meanwhile, attorneys from Baker McKenzie were recognized as the only Band 1-ranked lawyers in the 2019 Chambers Global Guide for their work in the Climate Change practice. Other large law firms like Latham & Watkins and Reed Smith scored high praise; while Jones Day claims to be a pioneer “in the climate change field” (dating back to the 2009 Chambers Europe Guide). Also, Arnold & Porter has been innovative in partnering with Columbia Law School’s Sabin Center for Climate Change Law to provide a US database on Climate Change Litigation.

On a Separate Note

As climate disruption continues, insightful attorneys might also expect to see (and serve) a huge groundswell of startups aiming to help save the planet while making a little profit for themselves.

In March, a firm called Jupiter Intelligence raised $23 million in funding and is headed by an impressive team that includes a Nobel Prize recipient and two members of the C-suite with ties to Google. Jupiter is a provider of AI-powered weather prediction data designed to help its clients — such as insurance companies and governments — know when and where climate disasters might strike. Hurricanes and massive floods can cause billions of dollars in damage, and Jupiter offers a chance to mitigate some of that risk.

Until now, the focus of many climate change mitigation efforts has been on storing carbon dioxide (co2). Three companies — Switzerland’s Climeworks, Canada’s Carbon Engineering, and the Unites States’ Global Thermostat — are building machines that, at reasonable costs, can capture co2 directly from the air. Also, some companies are pursuing ideas for how to both capture and transform co2 into everyday products. For example, as strange as it might sound, the University of Michigan is backing new technology that captures carbon dioxide emissions from the air and turns them into beer, lipstick, and concrete!

Yet, other climate-focused startups continue to raise cash to fund novel ideas for creating negative emissions, or other ways of dialing back our current rate of planet warming.

As these efforts show, if there’s one thing worth investing in, it’s the literal future of our planet. Further, as these efforts show, lawyers and law firms looking to mine this practice for future business and client work need to take note.