Billy Hupp ‘20
Guest Writer
“Businesses must take action on climate change,” urged Patagonia’s Environmental Advocate Avi Garbow ’92 at the Virginia Environmental Law Journal’s annual symposium this past Wednesday. Businesses are “not susceptible to the vagaries of political winds,” Garbow said. They are therefore better positioned to address the causes of climate change than the federal government, which has pinballed between action and inaction on the issue over the last two decades.
Avi Garbow ‘92, left, and Professor Jonathan Cannon, right, discuss the role of business in addressing climate change. Photo credit Kolleen Gladden ‘21.
VELJ’s symposium, “The Green New Deal: Examining Climate Change in the Business Context,”[1]drew leaders from the private sector, advocacy organizations, and academia to discuss the hottest topic in environmental policy and what private actors can do about climate change, with or without government action. “We wanted to engage a variety of perspectives on the Green New Deal,” said Rebecca Robinson ’20, VELJ’s Projects Director who spearheaded the symposium. The event was divided into two panels and concluded with Garbow’s keynote address.
The Green New Deal, which contextualized the symposium, is a Congressional Resolution authored by Rep. Alexandria Ocasio-Cortez (D–NY) and Sen. Ed Markey (D–MA). The resolution discusses the threats posed by climate change and sketches several broad goals to address those threats, including net-zero greenhouse gas emissions by 2050, a jobs guarantee, modernizing American infrastructure, and promoting justice for historically underserved and vulnerable communities.
The first panel, moderated by UVA Law’s Cale Jaffe ’01, addressed the link between climate change and business. The panelists discussed the obligations that businesses have to their shareholders and stakeholders. Professor Andrew Wicks of the Darden School began by discussing two distinct views of corporate theory. On the one hand is Milton Friedman’s conception that corporations owe a duty to their shareholders to generate as much profit as possible. But on the other hand is a more holistic approach—recently adopted by the Business Roundtable[2]and advanced by Darden Professor Ed Freeman—that business entities owe a duty to all stakeholders.
This latter theory regards business as a collective enterprise to make people better off. In the context of climate change, stakeholder theory can guide businesses to consider the impacts of their decisions on their consumers, the communities in which they operate, and even future generations. Hana Vizcarra, a staff attorney with the Environmental and Energy Law Program at Harvard Law, also noted that the law can’t unilaterally cause shifts in business approaches to climate change. Rather, the arrow may point the other way: Voluntary commitments from the private sector can help lay the groundwork for regulatory action and legislation.
The second panel, co-sponsored by BLSA, focused on business opportunities in addressing climate change. Darden Professor Michael Lenox moderated the panel, which opened on an optimistic note. “History is on our side,” said panelist Steve Bowers, Apex Clean Energy’s Vice President for Marketing and Communications. Indeed, Professor Lenox began the discussion with a historical parallel: In the mid-19th Century, the whaling industry was the dominant provider of fuel for lamps, but kerosene quickly eclipsed the industry over a period of only 8-10 years. Likewise, clean energy has the potential to rapidly replace so-called “dirty” energy sources.
But the focus needs to be broader than just improvements in infrastructure and technology. Dawone Robinson, regional co-director of the Energy Efficiency for All program at the Natural Resources Defense Council, emphasized the importance of intersectional solutions to climate change which include transportation, jobs, and affordable housing. One failure of the original New Deal of the 1930s was that institutional redlining and discriminatory lending prevented people of color from accessing New Deal programs. Today, the solution to climate change must put justice “front and center,” Robinson said.
Garbow delivered the keynote address to cap off the symposium. He began by reflecting on the past 20 years of climate change policy in the federal government. In 1998, Professor Jon Cannon, then general counsel for the EPA in the Clinton administration, authored an influential memorandum concluding that the EPA had the authority to regulate greenhouse gases. But the Bush administration had a decidedly less progressive environmental policy, even after the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which held that the EPA is authorized to regulate CO2 under the Clean Air Act’s definition of “air pollutant.” Recently, the Obama administration’s actions on climate change—such as the Clean Power Plan and the Paris Agreement—have been largely undone by the Trump Administration.
However, even with the political uncertainty at the federal level, Garbow came out in favor of the Green New Deal. He stressed that significant action is necessary now. But government alone is not the answer. Rather, the government, private sector, and individuals all have roles to play in solving the climate crisis.
Indeed, the private sector has a direct interest in climate action. Garbow observed that outdoor sporting goods companies like Patagonia and Nike will be less profitable if climate change and pollution make it infeasible to go outside for months at a time. To that end, Patagonia reorganized itself as a benefit corporation and has set a goal of carbon neutrality throughout its supply chain by 2025.
Climate change is a daunting issue, but the symposium overall was pragmatic and perhaps optimistic. “I hope that the audience took away from the symposium the importance of engaging cross-disciplinary discussion for this type of problem,” said Robinson, who herself is pursuing both a JD and an MA in legal history.
Garbow also reflected this interdisciplinary approach. Since graduating from UVA Law, he has been a prosecutor at DOJ, the longest-serving EPA general counsel, partner at Gibson Dunn, and now Environmental Advocate at Patagonia.
Drawing on this experience, Garbow concluded with some advice to current law students: Follow your passion. Lucky for us, Garbow’s own passion just happens to involve saving the planet.
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