Lawyers’ Climate Change Campaign Reaches West Coast for Earth Day

 

In early 2014, a small group of lawyers in Philadelphia began a campaign to enlist the support of the legal community for action on climate change. That campaign took root with the leadership of the Philadelphia Bar Association under the name A Call to the Bar: Lawyers for Common Sense on Climate Change.

The goal? To protect our children and future generations from the catastrophic effects of climate change by reducing greenhouse gas emissions through carbon pricing, such as carbon tax, cap-and-trade, or fee and dividend. Virtually all knowledgeable people agree that carbon pricing is critical. Citizens must demand it, government must deliver it. Lawyers can lead the way.

Yesterday, April 21, 2015, the campaign reached the West Coast, with the publication by the Oregon State Bar of my article “Just a Theory on People and Climate Change.”

I am immensely proud to have the support of lawyers in Oregon.

In coming months, you can expect to hear more about our work with lawyers around the country, as we turn common sense into public policy.

Lawyers, law students, and non-lawyers can support our efforts by going to our web site, www.calltothebar.org and signing our petition. We cannot do it without you. Sign the petition now.

-Steve Harvey

Leading Jurists, Scholars, and Advocates Say Unrelenting CO2 Emissions Violate International Law and Must Be Reduced to Prevent Catastrophe

A group of prominent jurists, scholars, and advocates on March 1, 2015, adopted the Oslo Principles on Global Climate Change Obligations. The Principles are based on the undeniable fact that “[t]he threats [to the Earth from climate change] are grave and imminent,” and the inescapable conclusion that “[a]voiding severe global catastrophe is a moral and legal imperative.” The Principles “set out the legal obligations of States and enterprises to take the urgent measures necessary to avert climate change and its catastrophic effects.” Essentially, they call for reduced CO2 emissions by States and enterprises.

Principle 1, called the “Precautionary Principle,” states that: “1) GHG emissions be reduced to the extent and at a pace necessary to protect against the threats of climate change that can still be avoided; and 2) the level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts.”

The Oslo Principles, while not binding, serve as an important reminder that impeding disaster from climate change caused by CO2 emissions is not just an environmental and moral problem, it is a legal problem.

Anyone concerned about what government and the law should do about climate change should review the Principles, which can be found here. The commentary to the Principles can be found here

 

– Stephen G. Harvey

 

New Federal Study of Consumer Arbitration Clauses Finds That Consumers Lack Understanding and Clauses Limit Class Relief

On March 10, 2015, the Consumer Financial Protection Bureau (“CFPB”) issued the second part of a long awaited study on arbitration clauses in consumer financial services contracts.[1]

CFPB head Richard Cordray summarized two key study findings. “Tens of millions of consumers are covered by arbitration clauses, but few know about them or understand their impact,” said Cordray. “Our study found that these arbitration clauses restrict consumer relief in disputes with financial companies by limiting class actions that provide millions of dollars in redress each year.

So what will the CFPB do about arbitration clauses and their effect on class actions? The Dodd Frank Act mandated that the CFPB issue regulations consistent with the study. “Now that our study has been completed, we will consider what next steps are appropriate,” said Cordray.

Consumer advocates are predicting that the CFPB will use the study as a support for prohibiting arbitration clauses: “The findings of the CFPB’s study are crystal clear. These clauses are written by corporations to set up a secret and lawless process that prevents consumers from holding corporations accountable for unlawful conduct. The CFPB should act quickly to ban forced arbitration in consumer financial contracts,” said National Consumer Law Center attorney David Seligman.

Predictably, many industry groups favor arbitration clauses and argue that they should be preserved, even if (and precisely because) they are used to defeat class actions. It may be too early to tell how this will all be resolved, but there is a clear sense that the momentum on this issue has shifted in favor of consumers.

– Stephen G. Harvey

[1] The first part of the CFPB study was released on December 12, 2013.

 

How I Decided to Market My Law Practice by Becoming a Leader on Climate Change

Last week, Law360 ran a story on me and the new non-profit I founded. For access to the article, click here if you are a Law360 subscriber or Google “Law360 Steve Harvey Climate Change”. Here is how this came about.

In 2013, I left my position as a partner at one of Philadelphia’s oldest and most prestigious law firms to found my own boutique law firm (Steve Harvey Law LLC) focused on litigation and trials for business disputes.

I thought carefully about how to market my new firm. It was of course critically important for clients to understand that I run a high-quality litigation and trial shop capable of delivering outstanding, cost-effective results in commercial litigation and other disputes. But I did not want to lose sight of the pro bono and public service component of my professional life that I had established so well at my former firm. I particularly wanted to focus some of my energy on the urgent threat to our society from climate change if we do not reduce greenhouse gas emissions, primarily CO2.

The solution: integrate my business plan with my public service passion.

The result: demand for our services remains strong as a result of marketing and networking activities, including time spent working on the climate change campaign.

I reached out to key leaders in the legal community and asked if they would back an effort to enlist the support of lawyers for action on climate change. The answer was positive. I then lobbied the Philadelphia Bar Association, which in June 2014 passed a resolution calling for immediate government action on climate change.

Then in November 2014, I organized a program for the Philadelphia Bar Association about CO2 emissions as the undisputed cause of climate change and carbon pricing (carbon tax or cap-and-trade program) as the recognized primary solution. The program featured Richard Alley, Ph.D., a leading climate scientist from Penn State, with climate change legal expert Robert McKinstry on carbon pricing.

Inspired by the program—particularly Dr. Alley’s message about the severity and urgency of the problem—I wrote an article on climate change that appeared as the cover story in the Winter 2015 edition of The Philadelphia Lawyer. I consider it the most important thing I have ever written.

Going into 2015, I had two goals.

First, continue the growth of my law firm. I work with a team of lawyers, paralegals and staff on litigation and trial matters for businesses and individuals. In our first year, we handled numerous important cases and achieved outstanding results for our clients. We also launched this website and took on multiple pro bono cases. I intend to continue to grow this firm.

Second, transform the campaign on climate change awareness in the legal community from a Philadelphia program to a national program. In early 2015, I recruited prominent lawyers to serve on the board of a new nonprofit, “A Call to the Bar: Lawyers for Common Sense on Climate Change.”

Our mission is enlist the support of lawyers and the legal community for action on climate change. Our website explains the problem and the solution. We also have an online petition and opportunities for other lawyers to become leaders on climate change. I invite you to check it out, get involved and sign our petition!

We are working on gaining the support of lawyers, law students, bar associations, and law schools across the country. The prototype is what we did in Philadelphia, including resolutions calling for action and programs featuring scientists and economists to educate about CO2 emissions as the cause of climate change and carbon pricing as the primary solution.

In February 2015, I sponsored a lunch for a group of lawyers to tell them about our new climate change campaign. I invited Dan Packel, a reporter who wrote the story that ran in Law360. That story led to calls from lawyers as far away as California offering support for A Call to the Bar.

I plan to spend much of my time in 2015 working on matters for my law firm clients and growing the business. But I also plan to spend substantial time working on A Call to the Bar.

Someday, hopefully soon, enough people will be aware of the problem that political support for the solution will make it happen, and then I can move on to another just cause while continuing to practice law. I hope that you can integrate the causes you are passionate about into your business model.

The Twin Obstacles Of Standing And State Secrecy Live On In Surveillance Challenges

Supreme Court to Clarify Pregnant Workers’ Rights

The U.S. Supreme Court recently heard oral argument in Young v. United Parcel Service, Inc.,[1] a case that is expected to clarify employers’ legal obligations when pregnant women with work limitations seek workplace accommodations.

Petitioner Peggy Young was a driver for UPS, a positon that required her to lift up to 70 pounds. During her pregnancy, her doctor advised her not to lift more than 20 pounds, and she asked UPS to placer her on “light duty” – something UPS provided for employees who (1) had been injured on the job, (2) were disabled, or (3) had lost their commercial driver’s licenses. UPS denied Young’s request, reasoning that Young’s pregnancy was neither a disability nor an on-the-job injury, and put her on unpaid leave for the next nine months.

Young sued UPS under the Pregnancy Discrimination Act (“PDA”), alleging UPS’ policy discriminated against pregnant women. Since the PDA became law in 1978, it has been illegal to treat women workers unequally just because they become pregnant. But it has remained unclear whether employers who grant light-duty work accommodations to temporarily disabled workers must also provide light-duty accommodations to women whose doctors place similar restrictions on the work they can do during pregnancy.

Young argued that UPS’ policy is illegal under PDA, because it treats pregnant workers less favorably than non-pregnant workers who are similar in their ability or inability to work. UPS (which has since changed its policy), argued that Young is seeking is “special treatment for pregnant employees” — something the PDA does not require.  UPS pointed out that even the Justice Department has in the past defended a US Postal Service policy that treats pregnant women in substantially the same way. (The Justice Department said that policy is now being reconsidered.)

Both the district court and the U.S. Court of Appeals for the Fourth Circuit ruled in favor of UPS. Women’s rights advocates and the U.S. Department of Justice have now lined up on Young’s side. The Supreme Court’s ruling should clarify the rights available to pregnant women, as well as what is required of employers, under the PDA.

[1] No. 12-1226 (argued Dec. 3, 2014).

Pennsylvania Supreme Court to Decide Fresh Consideration Rule for Employee Non-Competes

Yesterday, the Pennsylvania Supreme Court granted allocator in Socko v. Mid-Atlantic Systems of CPA, Inc., 99 A.3d 928 (Pa. Super. Ct. 2014). Socko is the Pennsylvania Superior Court decision from May 2014 that re-affirmed the rule that fresh consideration is required for a non-compete signed after the inception of employment. In Socko, the employer tried to avoid the fresh consideration requirement by relying on Pennsylvania’s Uniform Written Obligations Act (“UWOA”). The UWOA provides that a written release or promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement . . . that the signer intends to be legally bound.”

The Superior Court called the issue one of “first impression in this Commonwealth,” but federal district courts interpreting Pennsylvania law had split on the issue of whether the UWOA applies in the non-compete context. On the merits, the Superior Court sided with the employee and held that the UWOA does not apply to restrictive covenants in the employment context, reasoning that non-compete covenants “are disfavored in Pennsylvania because they are in restraint of trade and may work significant hardships on employees agreeing to them.”

The Supreme Court’s decision in Socko will be of interest to business owners who use non-compete and to employees who are subject to non-competes. The subjects take on particular importance because in our experience the number of non-compete cases in litigation tends to rise with a growing economy.

Noted Climate Scientist Confirms That Climate Change is Real

The headline reads like a spoof from the Onion. Anyone who reads the newspaper or follows the many reports from the leading scientific organizations, like the National Academy of Sciences and the Royal Society, already knows that global warming is real, and a real cause for concern. But don’t take it from me. Take it from a scientist, Richard Alley, Ph.D., of Penn State University, who explained the scientific consensus on climate change at a Philadelphia Bar Association Chancellor’s Forum to a capacity crowd at bar headquarters on November 6. Richard is a glaciologist who is widely credited with showing that the earth has experienced abrupt climate change in the past—and likely will again, based on his study of ice cores from Greenland and West Antarctica.

Richard is also a member of the National Academy of Sciences and the Royal Society, and has worked with both organizations on published reports explaining the consensus on climate change. He served as one of the authors on the United Nations Intergovernmental Panel on Climate Change, whose members shared the 2007 Nobel Peace Prize. He has many other accomplishments in the area of climate science.

Richard began his presentation with the “skinny version of the program,” which is that “we enjoy the good that we get from energy use, which is now primarily from fossil fuels. We must change or suffer really really serious consequences and the sooner we start changing the better off we will be economically and in other ways. So you can now enjoy your dinner.”

The problem is the huge volume of CO2 we are now emitting into the atmosphere, many of us without realizing it, because CO2 is invisible. To illustrate the point, Richard asked the audience to compare the weight of household trash per person per year in America, which is less than 1,000 pounds, to the weight of CO2 put into the atmosphere per person per year in America, which is about 40,000 pounds. “This cannot continue,” he explained. “We are burning fossil fuels roughly a million times faster than nature saved them for us.”

CO2 blocks cooling, something science has known for a long time, and more CO2 will block more cooling of the Earth as it emits energy from the Sun’s rays. This is why, when asked if he “believes in global warming,” Richard responds: “We don’t believe it. It’s physics. And it’s physics like if I drop this pencil it will fall down. There isn’t another side of that.”

Anyone who could not make the program, but wants to learn more, should listen to this podcast of this Chancellor’s Forum. Among other things, Dr. Alley discussed the devastating consequences if we do not reduce CO2 emissions substantially and very soon.

It’s hard to overstate the seriousness of the issues if we can believe Richard Alley and the reports from the science community. Do we believe them? Listen to Dr. Alley and judge for yourself.

How do I look? Supreme Court to Weigh In On Dress and Grooming Policies in Two Religious Liberty Cases

The Supreme Court this term will consider two religious accommodation cases involving dress and grooming requirements. Regardless of how they are decided, the cases are a reminder to employers to consider employees’ religious rights when making employment decisions or developing policies, including policies on dress or grooming.

In Holt v. Hobbs,[1] the Court will consider whether a prisoner has the right to grow a beard for religious reasons.  Arkansas inmate Gregory Holt believes his Muslim faith requires him to grow a beard. He challenged an Arkansas state prison system policy prohibiting inmates from growing beards (except for quarter-inch beards for inmates with diagnosed dermatologic problems).  The prison system argued the policy was justified by security concerns and the possibility that beards could conceal contraband.  The District Court ruled against Mr. Holt, finding that prison officials’ security concerns deserved deference—even though the court itself doubted the validity of the security concerns. The Eighth Circuit Court of Appeals affirmed. At issue before the Supreme Court is how much deference to give prison officials when policies infringe on religious liberty, which is protected by federal statute. And if deference is not required, how are courts to draw the line on balancing religious rights with competing concerns?

In the second case, EEOC v. Abercrombie & Fitch Stores, Inc.,[2] 17-year-old Samantha Elauf, who is Muslim, wore a hijab—a traditional Muslim headscarf—when she interviewed for a salesperson position in an Abercrombie store in Tulsa.  She did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons.  Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”  The EEOC brought suit on Ms. Elauf’s behalf and won summary judgment, but the Tenth Circuit Court of Appeals reversed that decision, holding that because Ms. Elauf had not notified Abercrombie of her need to wear the hijab for religious reasons, her religious accommodation claim failed as a matter of law.  The Tenth Circuit reasoned that the burden of notice is on the employee or applicant, disagreeing with the EEOC’s view that something less than particularized, actual knowledge of the need for an accommodation is required. That issue will now be addressed by the Supreme Court.

The two cases follow last term’s Burwell v. Hobby Lobby decision in which the Supreme Court ruled that some corporations could refuse to provide contraception coverage to their employees on religious grounds. After finding broad religious freedom rights for corporations, many are interested in how the Court will interpret those rights in the context of individuals.

The Holt case was argued on October 7, 2014, and the Abercrombie case has not yet been set for oral argument.

-Therese Dennis

[1] No. 13-6827 (argued Oct. 7, 2014).

[2] No. 14-86 (cert. granted Oct. 2, 2014).

Understanding the Science of Climate Change with Richard Alley, Ph.D., in Philadelphia on November 6, 2014

I am very pleased to report that Bill Fedullo, Chancellor of the Philadelphia Bar Association, will be hosting a Chancellor’s Forum onNovember 6, 2014, on the subject of climate change. Bill has asked me to introduce the speakers.

The principal speaker will be Noted Climate Scientist Richard B. Alley, Ph.D. of Penn State. Dr. Alley will discuss the science of climate change, how it occurs, what causes it, and what can be done to stop it.

Dr. Alley is the Evan Pugh Professor of Geosciences at Pennsylvania State University, and has ranged from Antarctica to Greenland to help learn the history of Earth’s climate and whether the great ice sheets will fall in the ocean, flooding our coasts. With more than 240 scientific publications, Dr. Alley has served on many advisory panels. He participated in the UN Intergovernmental Panel on Climate Change, which was co-recipient of the 2007 Nobel Peace Prize. He has been asked to provide advice to the highest levels of government, and been elected to the US National Academy of Sciences and the Royal Society. He hosted the recent PBS miniseries Earth: The Operators’ Manual, and has been compared to a cross between Woody Allen and Carl Sagan for his enthusiastic efforts to communicate the excitement and importance of the science to everyone.

After Dr. Alley’s presentation, Robert B. McKinstry, Jr. will provide some brief comments on what is being done from a technical and legal perspective to combat climate change.

McKinstry is a partner in the Philadelphia office of Ballard Spahr, LLP, where he heads the firm’s Climate Change and Sustainability Initiative. He was counsel of record for the group of amici climate scientists supporting the petitioners in Massachusetts v. EPA, the 2007 Supreme Court decision that held that the EPA has the authority under the Clean Air Act to regulate greenhouse gas emissions.

This program is free and open to the public. It will be held at the offices of the Philadelphia Bar Association at 1100 Market Street in Philadelphia (10th floor). Registration is required.