12 Aug 2021
In the United Nation’s Intergovernmental Panel on Climate Change (IPCC) report on the ongoing and future effects of man-made climate change, ignoring the now overbearing threat of humanitarian and ecological disaster that may be realised if impactful change is pointed to as a non-possibility. Humanity is now, inescapably, set on a course towards a warming climate. With the science now in, what can the law do to help?
Background
In the IPCC report, future climate-related risks are said to be dependent on the rate, peak, and duration of global warming. I.e., we would be significantly better off if global warming gradually came to stabilize at 1.5°C, instead of exceeding that threshold to a peak temperature closer to 2°C before cooling back down. These risks articulated in conjunction with the latter change in climate includes long-lasting or even irreversible damage, such as the loss of entire ecosystems.
The facts are in. The climate is inevitably warming. All is not lost, however. Whilst the IPCC report and its tangential research makes for a mostly grim reading, there is still much to be done in the ways of prevention, adaptation, and mitigation. In fact, the report states that future climate-related risks would be reduced by the upscaling and acceleration of far-reaching, multilevel, and cross-sectoral climate mitigation. This statement has a not insignificant bearing also on the legal sector.
What Can the Law Do?
In the IPCC report, the law is pointed to as mostly a vehicle through which regulatory changes may be imposed. Whilst this is an admittedly fair assessment of the role the law might take in the context of mitigating a changing climate, it is a rather lawmaker-centric one.
Since the turn of the century, climate related cases has risen yearly. Some of these cases have mainly been concerned with more traditional aspects of the law, e.g., consumer rights, but with a climate change dimension (Herbert Gilbert v. Volkswagen) whilst others has been brought forward by plaintiffs suffering directly from – or fearing the possibility of – the effects of climate change (Friends of the Earth Ltd and others v. Heathrow Airport Ltd).
In the wake of the latter becoming more accessible, increased focus has been put on the lawyer as a player in the fight against climate change. As a result, the law as a, instrument to hamper the effects of a warming Earth is not only to be wielded by lawmakers and regulators but also by attorneys. Organizations like the Climate Change Council, the Chancery Lane Project, and the Net Zero Lawyers Alliance have all made tremendous headway in offering analysis and advocacy support towards turning climate ambitions into tangible actions and embed climate-friendly thinking in the legal fabric of client organizations.
The Role of the Climate Change Lawyer
For most lawyers, dealing with matters of compliance, risk, and opportunity is second nature. As such, the legal mindset is predisposed towards climate change-related thinking. In this regard, being a “green” legal profession does not necessarily only entail taking on clients and cases relating directly to matters of climate change. Instead, and perhaps more than anything else, it means addressing any legal document that may have bearing on how an organization operates, be that bylaws, standard agreements, or commercial contracts and evaluating these from a standpoint of climate impact.
The role as a climate change-conscious lawyer, then, is one that requires skills beyond simply legal prowess. As such, it is almost deceptively well-tailored towards the ADR profession – for whom advocacy, a holistic mindset, and judicious study of the minutest details all are second nature.
Initiatives like the 2019 Campaign for Greener Arbitration realized this dovetail early on and begun bringing professionals together to create a shared vision of a greener ADR industry. Today, individuals form arbitration institutions, law firms, hearing venues, third party funders, conference organizers, lawyers in private practice etcetera work together continuously to share the responsibility for reducing the industry’s global carbon footprint.
Creating a Green Legal Thinking for the Future
To address the question set out at the beginning of this piece, the answer is: plenty. Take, as an example, the development of Human Rights Law (HRL). The activism the predated its conception could be described as a struggle to ensure – not only the full legal recognition – but actual realization of human rights. History has shown us that rights are not usually granted the seeking willingly, and that gains are only secured through a successful challenge to absolutist authority.
What was fought over with the conception of HRL was the creation and subsequent enforcement of inviolable rights, equal for all subjects, that would serve as a baseline upon which prosperity could be sought. Whilst arguably not perfect, HRL granted rights, freedoms, and opportunities to millions – and it did it all through the vehicle of the law. Today, the struggle for effective climate change laws and regulation follows much the same route towards the same goal.
What initiatives like the Campaign for Greener Arbitration and organizations like the Climate Change Counsel have demonstrated in recent years is that the law works as an active participant in the fight for our climate, and not simply exist only as a passive vehicle for the powers that be.
By continuously bringing climate change-conscious thinking into otherwise non-climate related areas of the law, ADR practitioners can lead the charge of climate-friendly legal processes and work alongside regulators towards the creating and implementation of realizable and implementable climate laws.
The future of law has to be green, and there are few better set up to lead the way than the ADR sector.