Legal Aspects of Implementing Emerging Technologies for Mitigating Climate Change

I’m here with Gary Nissenbaum of the Nissenbaum Law Group and we’re discussing the legal aspects of implementing emerging technologies for mitigating the ravages of climate change. What are some of the emerging technologies that are being implemented to reduce carbon footprints both in the consumer market and among commercial entities?

One technology that comes to mind is desalinization of ocean water. The ravages of climate change are going to be focused in certain key areas inimical to life. One of those is the inability to find water that’s drinkable. The fact is that most of the earth is made up of water that people cannot drink. So desalinization becomes an absolute key. And that’s one of the technologies that really has got to be enhanced and improved in order for it to play a role in mitigating the effects of climate change.

And what do you think is the most pressing legal issue confronting these emerging technologies?

Interestingly, it’s another aspect the same thing, and it applies to all sorts of technologies. That is the waste products from methods of climate change mitigation.

Environmentally and Legally Sound Disposal of Toxic Byproducts

For example, we’ve been able to desalinize water for decades and the problem with that is that it results in a toxic substance called brine. And this toxic substance is generated currently in the amount of 142 billion liters per day.

Now this substance has a salt content that is ten times that of ocean water, and it can destroy the ability of the surrounding soil to grow vegetation. And it can also be extremely harmful to human beings on a whole host of levels, beyond just the inability to grow food. The brine creates a problem similar to carbon capture, where the idea of taking carbon out of the air is a terrific one. But then when the carbon or the methane is put into an inert state into a brick, where does that go?

If that goes underground, is it going into a place where it will not become toxic, where it will not then get released all at once? Or in some way will it leech into the surrounding soil and cause environmental damage? So one of the things that we have to focus on is whether there are technologies—and from what I understand, these technologies are emerging—that would provide for safe storage of the brine byproduct. Or ocean water. And also for the bricks that are inert greenhouse gases, which is a byproduct of the technology to take the carbon out of the air.

That, I think, is the major focus for this industry. And it’s something that the legal community, the attorneys, need to be involved in, need to be focused on.

What do you think the role of the attorneys should be in representing these clients?

One of the key issues is going to be the extent to which the contract between the parties involving storage of byproducts of these technologies is written. What are the terms? What are the enforcement mechanisms? Is there indemnification for any kind of damage that results?

Attorney’s Role is Finding Creative Solutions in Emerging Technologies

Number two is, what sort of insurance products are out there that are going to be utilized to mitigate the risk? And if there are currently no such products because this technology is too new, to what extent do lawyers play a role in having a dialogue with the insurance company to find ways to insure the risk in the future? There are a whole host of protections that have to be put in place and the attorney’s role is to see if he can come up with those sorts of creative solutions to protecting the client in an area that is innovative and as yet, perhaps untested.

“Ultimately, climate change is going to impact the entire court system.”

And what do you think are going to be some of the future legal challenges confronting the emerging technologies?

I think that, ultimately, climate change is going to impact the entire court system, the entire regulatory system, the entire system of passing statutes both on the federal and state level. There’s a saying that the American people vacillate on public policy issues between two states of mind. One is apathy and the other is panic. And I just have a sense that we’re going to go from the apathy stage to the panic stage fairly soon, in terms of climate change.

And I believe that attorneys need to inject themselves into that debate and find ways to even out the risk, figure out ways to help people implement innovative solutions, help entrepreneurs who may have ways of handling climate change that have not been tried before, that no one’s thought of. I think that, to some extent, the attorneys have to be the go-between.

They have to be able to take some entrepreneurial idea that really could do a lot of good for humanity and translate it into a legally practical approach that will not run afoul of the existing regulatory or legal framework.

Thank you very much.

Thank you.

Legal disclaimer: The information contained in this interview does not constitute legal advice, nor a legal opinion. It should not be relied upon in any specific situation. The reader is urged to consult an attorney of their choosing with respect to any legal question they may have.