What difference can lawyers make in tackling the climate emergency?
Clarissa Wern Ting Wong
1st year undergraduate; winner of the International Law Book Facility’s undergraduate essay competition
Climate change has driven up weather damage losses beyond USD 300 billion annually, while making them increasingly uninsurable. Naturally, citizens and corporations are looking to the law and legal practice to urgently future-proof their societal and economic interests. For the law to rise to this challenge, lawyers must work beyond the confines of traditionally compliance-focused environmental law. Instead, they must proactively adapt law and legal practice to give the world the best chance at achieving swift and coordinated climate action.
Firstly, where law-making processes struggle to produce timely climate regulation, solicitors and in-house lawyers can incentivise climate action by institutionalising climate-conscious decision-making. Secondly, where the law provides inadequate guidance on the norms of responsibility and accountability we should expect of climate actors, lawyers can shape those norms via strategic litigation. Thirdly, where climate goals lack actionability, lawyers can design context-sensitive, performance-verifying enforcement mechanisms.
Incentivising environmentally sustainable strategy through climate-conscious decision-making
Corporations are a key climate actor, as they have control over the sustainability of production processes. In-house lawyers and solicitors can leverage on their foresight-provision role within corporations to influence production decisions, by mapping decisions’ climate-related risks. Businesses can suffer economic risk in the form of losses from weather damage, with losses amplified through supply chains; they can suffer liability risks from non-compliance with the law: for example, Volkswagen had to foot €31.3 billion in the wake of its ‘dieselgate’ scandal; businesses can suffer transition risks, which refer to the possibility that carbon-intensive investments like coal-fired power plants will lose their value in a future low-carbon economy. Setting up climate-conscious due-diligence frameworks ensures corporations have foresight of these risks before making decisions or mitigating the risks, such as by adopting climate-friendly contract clauses.
In this way, lawyers can help corporations to develop future-proof strategies even if regulations do not develop quickly enough to provide certainty of future business conditions. The difficulty of formulating long-term governmental climate strategy -- bureaucracy hinders its pace and it is vulnerable to inconsistency across election cycles -- arguably puts corporations in a better position to enact long-term climate strategy, a view echoed by the Law Society of England and Wales.
Setting norms of responsibility and accountability for climate actors
Many a remedy-seeking litigation claim for damage caused by climate change has fallen at the hurdle of establishing legal causality. After all, climate change is produced by complex, difficult-to-isolate interactions between many actors. Attributing weather to a specific cause is fraught with much scientific uncertainty. If ex-post litigation cannot clarify the standards of responsible behaviour to be expected of climate actors where the law is silent -- there is no legal regime allocating responsibility with regard to climate change’s impacts on property - strategic ex-ante litigation is an attractive alternative. For example, ClientEarth, an NGO, successfully challenged the Polish energy group Enea’s decision to build a coal-powered power plant. The claim, filed based on ClientEarth’s standing as a minority shareholder, creatively circumvented the challenge of establishing causality by basing the claim on the directors’ fiduciary duties to avoid harming shareholders’ interests. With an array of legal tools in areas like tort, human rights and public international law at their disposal, lawyers can innovatively shape norms of responsibility among climate actors.
Furthermore, legal scrutiny can function like a forum moderator in upholding an honest and trustworthy climate narrative. Since the truth behind the effectiveness of climate action is highly scientific, it is difficult to verify at first glance. This year, researchers allegedly discovered that 90 per cent of carbon credits sold by the leading carbon standard are worthless ‘phantom credits’. In the absence of oversight mechanisms, inquiry in court and in academia allows us to break through the opacity of a climate actor’s claims and pursue accountability. For example, a recent legal challenge revealed the UK government’s net zero strategy was inadequate to achieve its obligations under the Climate Change Act. With the mushrooming trend of climate change-related litigation – 25 per cent of all climate change-related claims ever filed were filed between 2020 and 2022 – litigation lawyers will greatly influence the urgent race to shape the standards of responsibility and accountability which climate actors should adhere to. Because the legal system is singularly adept at and concerned with upholding precedent, lawyers, through their individual cases, can make a lasting difference to the climate narrative.
Enabling actionability of climate goals
While litigation may achieve case-specific enforcement measures and establish wider norms of behaviour, it cannot enforce climate action across the board. Given the urgency of climate action – the world must decrease carbon emissions by 45 per cent by 2030 to reach its Paris Agreement target – large-scale climate action is necessary, if not by the carrot, then by the stick.
Because emissions produce transboundary effects, coordinated international climate action is imperative. Lawyers can facilitate this through their unique expertise in designing harmonised, non-discriminatory and enforceable international standards. Lawyers involved in intergovernmental climate efforts – such as the establishment of carbon markets or the removal of trade barriers impeding the trade of key environmental goods – can provide technical input by ensuring that standards like ‘“environmental good’ appropriately anticipate and accommodate the technical and political nuances of the term. Lawyers in international organisations overseeing transboundary emissions-emitting activities – like shipping and aviation – can develop regulations and compliance-monitoring systems, such as the International Air Transport Association’s flight path-dependent carbon offsetting scheme for airlines. By establishing such oversight mechanisms, lawyers can ensure climate action is delivered on sufficiently verifiable grounds rather than easily-abused trust and faith.
The mission to boost lawyers’ climate literacy and capacity to drive climate action is underway. Climate-conscious lawyering across the corporate, legal and regulatory spheres is not simply a response to client demands or a newly-recognised professional duty. It is a chance for lawyers to build up the rule of law in the growing domain of climate action, to give it the best chance at proceeding in a swift and coordinated way: unmarred by a lack of planning foresight, misleading climate narratives or the unenforceability of transnational visions.
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