Extreme weather events are afflicting every continent, the extraordinary now commonplace even down to the regularity with which records are broken. The best global scientific expertise available speaks with one voice to warn of the fatal consequences of allowing climate heating to escalate further. Even the International Energy Agency has called for an immediate end to investment in new fossil fuel projects. The need for action has never been more starkly apparent, so what, as lawyers, should we be doing?
We can start with the obvious. We have to do all we can to reduce carbon emissions as quickly as possible and this must extend beyond those we directly cause to those we indirectly contribute to. It means using our buying power to influence our value chains to improve their environmental performance; supporting our colleagues to understand and do more; and, especially, engaging with clients on this issue. Mark Carney is challenging banks to reduce their ‘financial emissions’, that is the ones they cause by funding fossil fuel extraction. There are initiatives in the advertising world to encourage agencies to acknowledge the harm they contribute to by persuading consumers to buy petrol cars, or long-haul flights. Lawyers too need to take responsibility for emissions which would not arise were they not enabling their clients to generate them.
Even as I type, I can hear the chorus of protest. ‘If we don’t advise them, then others will’, ‘it is just too complicated to be consistent: where do you draw the line?’, ‘be realistic’. This last is laughable in the light of the IPCC Report making clear we are causing an horrific reality which could be averted (or, at least, moderated) by responding to that reality and not the artificial one existing within board rooms. Join the dots between this year’s events and the latest science and what it tells us is that attempts to preserve Business as Usual, given what we know and in the time we have left, will have consequences which are little short of murderous.
It is no longer enough to operate on the basis we will do all we can provided it does not hurt our bottom line. There has to be a shift from if everyone else starts doing the right thing then we will too to we will do the right thing and trust others to join us. There is a high probability that those who do step up are likely to be rewarded for their leadership. Yes, the first time you turn down a client because you are uncomfortable with the emissions, or the environmental degradation, that will flow from the work another firm will take the instruction. But the planetary crisis is not going away and there are lots of lawyers and law firms out there privately recognising this is the necessary direction of travel. Other clients are likely to be attracted to you by your ethical stance. Other firms will soon follow suit and before long clients will be listing access to quality legal advice as one more reason for changing their business practices. It may not have happened – yet – in a legal context, but analogies exist in the narrative of Martin Luther King’s long arc of history bending towards justice, as what for a long time seemed impossible suddenly became inevitable.
It is worth remembering no one will be immune from the effects of climate heating and environmental destruction: we are all part of the planetary ecosystem and do not exist apart from it. Everyone contributes to its health, positively or otherwise. Knowing this, why wouldn’t we do the best we can to make a difference? It is not a distraction from the day-to-day business of life and work. It is the primary means of ensuring our life and work is as bearable as possible in the future.
At a meta level, we are in unknown territory now, as Professor Simon Lewis of University College London pointed out. “The really, really scary thing about the climate crisis is that every single achievement of every human society on Earth occurred under a climate that no longer exists”. Bringing that down to the level of jobbing solicitors, whereas to date we have practised our profession within stable and broadly predictable conditions, this will soon cease to be the case. Whilst it remains essential to reduce carbon emissions as quickly and thoroughly as we can, the IPCC Report indicates that lack of progress on this over recent decades means we will probably exceed 2 degrees warming. This will cause devastation leading to mass migration, severe food and water shortages and intermittent and protracted upheavals which will disrupt and undermine the stability upon which economies and societies have depended.
In this scenario, legal principles such as the rule of law, access to justice and universal human rights, parts of the infrastructure which we have been able to largely assume to be secure in the UK, may become threatened and contested. As a result, the role of many lawyers may shift from not simply helping clients to play the game, to ensuring there are sufficiently clear and commonly accepted rules in place for a game to be played at all. A generation which has happily been strangers to war may find itself employing its professional skills to preserve the conditions for peace.
As with our response to the planetary crisis more generally, the quicker and more rigorously we act, the less dramatic, hopefully, our responses may need to be over time. The details are up for grabs still, but I feel sure that taking responsibility for the externalities flowing from the work we do; assuming a duty of care for them (and requiring the same of others); considering the implications of this for fiduciary duties (including between lawyer and client); and enabling more reciprocal and generative relationships will become part of the lawyer’s role in the future.
An excellent vision, full of hope for redefining the societal contribution of lawyers. Imagine a world where all law firms did the right thing and trusted others to join them - powerful stuff!