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City attorneys saving the world: How municipal lawyers can help in the fight against climate change

Roger Horner  Senior Legal Editor / Government Practice / Thomson Reuters Practical Law

· 6 minute read

Roger Horner  Senior Legal Editor / Government Practice / Thomson Reuters Practical Law

· 6 minute read

Across the country, municipal attorneys have a chance to lead the battle against climate change by incorporating climate-friendly factors in contracts, city codes, and strategic plans

Around the world, signs of the increasing impact of climate change — wildfires, droughts, hurricanes, and other severe weather events — have been abundant in 2022.

As international efforts to slow down the effects of harmful greenhouse gases have been insufficient, the frequency and intensity of climate-related disasters have led to a call to action in both the public and private sectors. In the United States, new federal legislation funding broad initiatives to reduce greenhouse gas emissions has become law. At the state and local level, some governments have adopted climate action plans and net zero emissions targets.

Yet there remains much to do. Incorporating language into contracts and regulations governing procurement, project management, and land uses can dramatically improve a municipality’s environmental impact.

City attorneys as climate-change fighters

There is no one-size-fits-all approach for local governments to address climate change. Municipalities should identify both short- and long-term measures that will improve their ability to withstand adverse climate events. These measures will depend on geographic location and many other factors, but may include:

      • improving public transportation and making communities more bike- and pedestrian-friendly;
      • using electric vehicles throughout the city’s fleet and installing charging infrastructure at convenient locations for motorists who live and work in the city;
      • building seawalls and upgrading drainage systems; and
      • creating tax abatements that encourage private sector businesses and property owners to take measures of their own.

Efforts to counteract the impacts of climate change should be an element of the local government’s comprehensive plan, zoning ordinances, and capital budget. Many cities also have a climate action plan (CAP) to guide their strategy for local mitigation efforts. Even without a CAP, developing contracts and regulations that address climate issues is a powerful first step in the local effort to fight climate change.

Incorporating climate goals into contracts and regulations

The municipal attorney should be mindful of the local government’s climate-related goals when drafting and reviewing proposed contracts and regulations. Integrating climate clauses into legal documents and laws can be a critical part of implementing a city’s climate action plan. However, even if the municipality has not yet adopted a CAP, contract terms and regulatory provisions that focus on environmental impacts can pave the way to a healthier future. City attorneys can incorporate a net zero mindset in contracts and regulations, with provisions specifically aimed at furthering progress toward net zero targets.

Establishing climate goals in construction contracts — In 2020, approximately 38% of global carbon dioxide emissions came from the construction and operations of buildings. However, the traditional standards of care found in construction contracts do not explicitly require contractors to incorporate climate change mitigation or adaptation measures. As a result, government entities and their contractors often build facilities without climate-related risks or decarbonization in mind.

Local governments should engage with the project team early on to determine how the project design, specifications, contract terms, and budget can address the government’s climate-related expectations. Examples of clauses municipalities can include in contracts for construction of public projects include:

      • requiring the contractor to meet defined net zero objectives, including reaching net zero benchmarks at various stages of the project;
      • rewarding the contractor for meeting net zero objectives, instead of penalizing the contractor for failing to meet them; and
      • prescribing practices for management of construction waste associated with the project.

Climate goals in procurement contracts To ensure that purchases made by local governments are environmentally responsible, municipalities should consider procuring equipment, supplies, and materials from sources that require less transportation, use materials or components that are recycled or responsibly sourced, and reflect the supplier’s or manufacturer’s commitment to sustainability.

Other local government contracts Local governments sometimes operate facilities with high-energy usage or environmental impact, such as landfills, schools, jails, or convention centers. Attorneys may be involved in drafting stand-alone contracts or clauses that are part of broader contracts to address matters such as: retrofitting facilities with energy-efficient appliances, systems, and lighting; reducing single-use plastics by vendors in cafeterias and other dining facilities; and establishing landfill management practices that reduce harmful greenhouse gas emissions and other adverse climate impacts.

Climate goals in planning, zoning, and building codes

Many cities already include climate-friendly features in their planning and zoning, without necessarily having a coordinated approach to climate change mitigation. For example, municipal plans and zoning regulations often provide for: preserving open spaces and setting aside land for parks; planting new trees and protecting existing trees; and incorporating bike lanes, sidewalks, and other pedestrian-oriented features into street infrastructure.

Beyond these measures, some cities anticipate and encourage higher usage of electric vehicles with incentives such as: free parking on streets and in public garages; and designated parking spaces with charging stations at privately owned parking facilities.

To assure that buildings within the municipality are resilient and energy-efficient, the city attorney can assist in efforts like: ensuring that new building and property maintenance codes emphasize energy-saving construction and operational practices; crafting ordinances that set requirements for recycling of construction and demolition waste; and establishing landscaping standards that rely on trees and other plantings that, once established, will provide shade but will not require extensive irrigation.

With serious threats presented by rapid climate change, most cities will need to step up their efforts and be more intentional in using planning and zoning to focus on climate issues. Cities that have adopted climate action plans can use them as support for overhauling comprehensive plans and zoning ordinances. Municipal attorneys will need to assist in drafting and reviewing new zoning language to confirm that it is within the city’s authority, is enforceable, and carries out the city’s intentions.

Selling local government climate policies

Climate policies at any level of government can be a hot-button issue. Local government attorneys and officials can get around the political controversy that sometimes accompanies climate-related measures by de-emphasizing terms and references that trigger negative reactions while stressing that climate-related actions will result in long-term economic benefits to property owners, residents, and the community as a whole.

Municipalities and their city attorneys should continue to communicate that these steps are a clear pathway toward a healthier and safer living environment that preserves the community’s natural resources and scenic beauty for future generations.

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