Developments in climate change for lawyers

Last week’s 40°C heatwave provides an obvious opportunity to revisit the issue of lawyers and climate change.

I imagine that, as time passes, and we witness more effects of climate change (we have had increased flooding, too, over recent years), the number of lawyers who say: ‘This has nothing to do with us – and certainly nothing to do with the Law Society’ will reduce. Certainly, there are more initiatives all the time showing a vital role for the legal profession.

Last week, for instance, right on time for the start of the heatwave, the High Court joined the growing trend of judicial decision-makers in Europe and elsewhere in holding a national government to account over its climate policy. Following lawyers’ arguments, the court ruled that our government’s net-zero strategy breaches the Climate Change Act 2008, and that its strategy must be revised to demonstrate how key emissions reduction targets will be met (R (on the application of (1) Friends of the Earth Limited (2) ClientEarth (3) Good Law Project and Joanna Wheatley v Secretary of State for Business, Energy and Industrial Strategy).

In its response, the Law Society said that: ‘The rule of law is pivotal to realising net-zero and tackling the climate crisis in the United Kingdom and across the globe’. It referred to the Law Society’s own climate change resolution of last year, which urges solicitors to develop a climate-conscious approach to daily practice. The Law Society plans to issue climate guidance to the profession later this year.

Lawyer sceptics will doubtless ask ‘What does that mean, a climate-conscious approach to daily practice?’ Yet answers are being given all the time.

For example, just to take the field of conveyancing, which includes the work of many solicitors, suggested lines of advice were published earlier this month, including:

• asking the client’s insurance broker whether, as a result of predicted climate risk, the property is likely to be uninsurable in the longer term for flooding, subsidence and other physical impacts;

• asking a valuer to advise by how much the purchase price ought to be reduced (if at all) as a result of climate risks;

• seeking more information on behalf of purchasers of property in certain areas (e.g. where protected from coastal flooding by sea walls) about the amount of money spent to maintain the defences; and

• in exceptional cases, withdrawing from a purchase because the climate risk is just too great to accept (no one wants to purchase a stranded asset threatened by coastal erosion, regular flooding or subsidence).

There is other assistance frequently available. The Chancery Lane Project regularly adds to its collection of contractual clauses dealing with climate change, ready to be incorporated into law firm precedents and commercial agreements.

Lawyers are also constantly being urged to become more involved. An open letter is currently being circulated among the profession, asking lawyers to add their signatures. It cites research that the City is one of the largest global centres for financing fossil fuel projects, assessed in 2019 as supporting at least 15% of global emissions, with investments in the FTSE100 driving us towards 4˚C warming.

The open letter makes three proposals. Lawyers should:

• educate themselves as to the risks of climate change;

• be obliged to advise their clients, where relevant and appropriate, of the serious risks (legal and otherwise) of pursuing any investment, project or transaction that is inconsistent with the pathway to 1.5˚C; and

• support efforts by the judiciary to develop climate literacy, including in prosecutions concerning climate protest.

The point about climate protestors may raise the most difficulty for some. The letter states that:

‘both prosecutors and defence lawyers should ensure the court is aware that a) breach of the 1.5˚C limit risks mass loss of life and the end of the rule of law and that b) there is substantial evidence that governments and businesses, individually and collectively, continue to pursue courses of action which they know to be inconsistent with that limit. The courts must apply the law to such cases, but lawyers must ensure that they do so on the basis of the relevant facts.’

This is a journey on which we are all being educated. The excessive heat of last week, and the floods of the recent past, have forced us to confront an ugly reality, which is likely to be soon unmanageable, and which will harm everyone in the long term. The drafters of the letter are right to point out that the consequences risk the rule of law itself, which is what we all serve.

As the examples in this piece show, we need to lift our noses from our immediate concerns and take action to ensure that the future does not destroy us. A first stop for newcomers should be the Law Society’s own climate resource hub for solicitors. We are not helpless.

Jonathan Goldsmith is Law Society Council member for EU & international, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society