“Going green” has become big business. Part of this trend stems from vast amounts of stimulus funding for “renewable energy” or energy efficiency. Natural market forces are also in play; eco-friendly products have become a $200 billion market. In addition, businesses are finding that at least some environmental measures—especially those taken to reduce wastes, water and energy consumption, packaging, and transport distances—can provide substantial cost savings. As a result, many businesses are voluntarily instituting new environmental programs to reduce greenhouse gas emissions and improve the sustainability of their own facilities, operations, and products.
At the same time that this voluntary movement is underway, new laws and regulations mandating environmental improvements are being developed. One might assume that implementing new environmental programs, whether voluntary or mandated, would lessen environmental liability risks overall. The path to “going green,” however, is itself a legal minefield. Unintended consequences and shifting legal standards can undermine environmental efforts and result in staggering new legal liabilities for businesses implementing the new environmental controls.
This article first examines ways new environmental measures become vulnerable to producing massive adverse, and largely unanticipated, impacts of their own. This article then evaluates legal frameworks available to reduce the risks of, and liability for, such unintended consequences.