In this article, we are delighted to share the winning entry from our law undergraduate essay competition 2022-2023, written by competition winner, Clarissa Wern Ting Wong, 1st year undergraduate at the London School of Economics. Clarissa’s essay shares her thoughts on the key issues and the opportunities for climate-conscious lawyers to boost the rule of law in the growing domain of climate action.

Congratulations again to Clarissa, who will be undertaking a special internship at Latham & Watkins and LexisNexis over the summer as part of her prize. Our thanks again to Latham & Watkins, and LexisNexis for offering this wonderful opportunity to our winner. In addition to publication on the ILBF website, Clarissa’s essay has been published in the IBA’s Litigation newsletter and will also be published by Thought Leaders 4 Fire.

Let’s keep the climate emergency at the forefront of legal debate, news and practice. In due course we will publish a grand summary of the ideas in all of the submitted essays.

What difference can lawyers make in tackling the climate emergency?

Climate change has driven up weather damage losses beyond USD 300 billion annually¹, while making them increasingly uninsurable². 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 euros in the wake of its “dieselgate” scandal;³ 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 UK Law Society.⁴

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.⁵ 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 property⁶—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 plant⁷. 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% of carbon credits sold by the leading carbon standard are worthless “phantom credits”.⁸ 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.⁹ With the mushrooming trend of climate change-related litigation—25% of all climate change-related claims ever filed was filed between 2020 and 2022¹⁰—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% by 2030 to reach its Paris Agreement target¹¹—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.¹² By establishing such oversight mechanisms, lawyers can ensure climate action is delivered on sufficiently verifiable grounds rather than easily-abused trust and faith.

Conclusion

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.¹³ 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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Footnotes

[1] Aon (Aon 2023) rep <https://www.aon.com/getmedia/f34ec133-3175-406c-9e0b-25cea768c5cf/20230125-weather-climate-catastrophe-insight.pdf> accessed February 28, 2023

[2] Stone A, “Insurers Struggle to Address Climate Risk” (Forbes January 31, 2020) <https://www.forbes.com/sites/andystone/2020/01/30/climate-change-will-make-more-of-the-world-uninsurable/?sh=775f9df1655a> accessed February 28, 2023

[3] Reuters, “Volkswagen Says Diesel Scandal Has Cost It 31.3 Billion Euros” (ReutersMarch 17, 2020) <https://www.reuters.com/article/us-volkswagen-results-diesel-idUSKBN2141JB> accessed February 28, 2023

[4] Chittenden T, Brook N and Sedilekova Z (The Law Society of England and Wales 2021) rep <https://www.lawsociety.org.uk/topics/research/climate-change-risks-the-future-of-law-as-we-know-it> accessed February 28, 2023

[5] Otto FE and others, “Causality and the Fate of Climate Litigation: The Role of the Social Superstructure Narrative” (2022) 13 Global Policy 736

[6] Vaughan J, “Climate Change: Is It a Legal Issue?” (July 27, 2022) <https://www.mondaq.com/uk/climate-change/1216114/climate-change-is-it-a-legal-issue> accessed February 28, 2023

[7] “Clientearth v Enea” (Climate Change LitigationAugust 2, 2019) <http://climatecasechart.com/non-us-case/clientearth-v-enea/> accessed February 28, 2023

[8] Greenfield P, “Revealed: More than 90% of Rainforest Carbon Offsets by Biggest Certifier Are Worthless, Analysis Shows” (The Guardian, January 18, 2023) <https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe> accessed February 28, 2023

[9] The Queen (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 [2022] EWHC 1841 (Admin)

[10] Setzer J and Higham C (LSE Grantham Research Institute on Climate Change and the Environment 2022) rep <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2022/08/Global-trends-in-climate-change-litigation-2022-snapshot.pdf> accessed February 28, 2023

[11] UN, “For a Livable Climate: Net-Zero Commitments Must Be Backed by Credible Action” (United Nations) <https://www.un.org/en/climatechange/net-zero-coalition> accessed February 28, 2023

[12] (IATA 2020) rep <https://www.iata.org/contentassets/fb745460050c48089597a3ef1b9fe7a8/paper-offsetting-for-aviation.pdf> accessed February 28, 2023

[13]  International Bar Association Climate Crisis Statement (May 5, 2020) <https://www.ibanet.org/medias/822C1967-F851-4819-8200-2FE298164922.pdf?context=bWFzdGVyfGFzc2V0c3w3ODQ4MDZ8YXBwbGljYXRpb24vcGRmfGhmMC9oN2MvODc5NjMzNjIyNjMzNC84MjJDMTk2Ny1GODUxLTQ4MTktODIwMC0yRkUyOTgxNjQ5MjIucGRmfDQzYTY0MjUxMDE0OTVjZTE4YjBhZmU1NzY0YTRkOTM3YjljNjg0NjdiY2QxNDY0MzBkYzJjOTNiOGUzNmVlMWE> accessed February 28, 2023