II: Seeing and Navigating the Horizons in 2024
COP28 reinforced both the understanding that radical change must happen without delay and that critical actors are not ready to match the statements they make in this respect with the necessary action. How are we to respond to this?
I still find the Three Horizons model developed by the likes of Bill Sharpe and Graham Leicester the most helpful resource to translate the Doublespeak coming out of the COP into something that can be applied to our contemporary work contexts.
As a quick reminder, the classic Three Horizons image is below (and more details are here):
What the COP tells us loud and clear is that fossil fuels are archetypal H1 activity (i.e. the red line above) and even that industry itself recognises this. The issue is how steep is its decline and swift its demise. The same will surely follow for the likes of industrial agriculture and aviation in their current forms and legal instruments like the Energy Charter Treaty which are no longer fit for purpose and actively harmful to the collective goals we are committed to pursuing.
The COP President, Sultan Al Jaber, committed to the 1.5°C goal and GHG emissions reductions of 43% by 2030 and 60% by 2035 (relative to 2019 levels). He also confirmed his intention to continue developing new oil and gas projects. His emphasis on ‘transitioning away from fossil fuels’ in this context illustrates the challenge for lawyers who are trying to engage with clients on sustainability matters. I believe these efforts are, in the vast majority of cases, genuine. However, there is a very real danger that clients such as Al Jaber will capture transition and use it as a means of extending the life of fossil fuels, rather than managing their decline. Business as usual will be cloaked in the language of transition and lawyers who started out with good intentions will find themselves enmeshed in client relationships which make them complicit in activities which cause protracted and increasingly devastating harms. In Three Horizons terms, this is classic H2- activity, part of the blue line in the figure above, but applied to prolong the red, rather than to advance the green. (Genuine transition would have seen the fossil fuels sector embracing renewables at scale decades ago, rather than using the lack of renewables capacity as the excuse for protracting fossil fuel use now).
This is not a reason for the likes of the Legal Charter 1.5 and the Net Zero Lawyers Alliance to turn away from seeking to support genuine transition (although transformation feels more appropriate terminology and action for what is now required). Arguably, those engaging with such initiatives should be commended for stepping into this messy territory and attempting to navigate it. They will though need to remain vigilant that they do not remain part of the problem instead of contributing to the solution and to be willing to take difficult decisions in terms of the matters they take on, where it is evident ‘transition’ is not genuine.
It is easier, perhaps, to be confident about your position as a disruptor of the status quo (and so engaged in H2+ activity) if you are part of Lawyers Are Responsible or Law Students for Climate Accountability. These groups are very clear about what law firms should not be doing and serve as a useful reminder of the harms that legal advice may be contributing to. However, they are unlikely, of themselves, to be the source of the emergent legal practice that may prevail in the future. Disruptors in this space with the potential to be genuinely transformational include the likes of Client Earth, Lawyers for Nature, Pollination, The Chancery Lane Project and Good Law Project, each using charitable or philanthropic capital to apply the law and/or legal practice to drive positive governmental, corporate and investor practice. There are also firms such as Bates Wells and Leigh Day, still focused on client fees as the means to fund progressive interventions.
Beyond these disruptive interventions to current practice, there is increasing evidence of the potential components of a viable future emerging (the green line, H3). These include the likes of (re)purpose law and Gen-R Law (introducing indigenous wisdom into modern legal practice), Beyond The Rules (applying design principles to power dynamics), Doughnut Law (regenerative and distributive by design within social and environmental parameters), organisations like GAIL (sharing knowledge across jurisdictional borders), new applications of established principles (updating application of some of the basic tortious principles, reinvigorating the approach to natural commons, reinforcing the precautionary principle, polluter pays and equitable accounting for externalities), and introducing systems thinking to legal practice.
For me, the real value of the Three Horizons model lies not just in the ability to place certain types of work in the above framing, but in the appreciation of the relationships between the different types of work and its practitioners, both in moments of, and across, time.
Most commercial law firms will be doing a lot of H1 type business currently. A good number will also be doing a fair amount of H2. Possibly, a handful may be recognising the value of, and encouraging, small teams of intrapreneurs within their firms. These will be exploring new approaches to law and to clients which may grow into significant areas for the business in the future. Smart contracts is one example of this from recent years. Future ones may include more decentralised autonomous organisations, holocratic governance models, relational contracting, distributive risk mechanisms. These are H3 activities offering little in the way of income streams this year, but with considerable future potential.
Three Horizons seeks to balance the value different horizons offer over time. It recognises the potential for antipathy between those operating within different horizons (see the negative mindsets figure below) but naming this makes it more easily absorbed into day to day practice. It becomes something that can be recognised and acknowledged rather than remaining ominously unspoken. Similarly, the identification of positive perspectives makes it easier to understand how others may be contributing in different ways to the wider whole.
This ability to recognise the complementarity of different contributions diminishes the sense of us and them in a given moment, whilst still preserving the longer term perspective supporting transition and transformation over time. This means that whilst in 2024, those practising in H1 may be subsidising the activities of those in H3, the position may reverse in a couple of years’ time as work begins to dry up for those in H1 and they need to engage in more H2 and H3 work. Solicitors within a firm may deliberately seek (or good managers actively ensure they have) a mix of work across the horizons, understanding how each contributes today and in the future towards the health of the whole, while an appropriate balance is maintained across that whole and for the individuals of which it is comprised.
The curves of the horizons will be different for different sectors, different law firms and different individuals. A study of the Three Horizons materials will show the range of curves that may apply in alternative scenarios, influenced (among other things) by the approaches being embraced today. In a world where a rare certainty is the inevitability of change, seeing not only how it may play out, but how it may be possible to influence how it plays out, is reassuring.