Lawyered Emissions: an appropriate response to Glasgow
The shortcomings of COP26 only emphasise the need for us to step up without delay
As the last of the lanyards and empty cans of Irn Bru are recycled in Glasgow, the main message from COP26 remains that reflected by the simple, yet oh-so stark formula:
45% @ ’30 → 1.5°
After all the talk, manoeuvring and analysis, this is still what it comes down to. We must reduce our carbon emissions by 45% in the next nine years if we are to keep increases in global temperatures to no more than 1.5°C above pre-industrial levels. In keeping with the Conference as a whole, it felt both a positive step that there was seemingly unanimous acceptance that 1.5°C should be our common target, and a retrograde one that so little was promised by way of genuine commitments to emissions reduction at the scale and speed required this decade.
I admit I spent much of Saturday night and Sunday feeling very deflated: the message from the Conference appeared to be that, even with full knowledge of the consequences, humanity is not prepared to make the adjustments required to avert an apocalyptic outcome for millions (or more). It is as if the representatives of the big fossil fuel producing nations have engaged in the ultimate act of co-option. They are an alternative, more shocking, form of Extinction Rebellion - prepared to embrace extinction for many races and species on the planet and they don’t care.
Above 1.5°C, the importance of the law as a pillar of civilisation will only increase
However, on reflection, whilst COP26 did not get us anywhere near to where we need to be, it has reinforced much of what we already knew and hopefully, for any lawyers moderately engaged with the issue, confirmed the need for us to step up now and not passively leave it for others to take the lead. The need to mitigate emissions will be a constant for the rest of our lives and the importance of adaptation, as the prospect of staying below 1.5°C recedes, grows all the more urgent. As temperatures exceed 2°C and crises multiply and feedback, there will be greater need than ever for the rule of law, administration of justice and access to justice. Lawyers will need to protect these concepts and ensure they are actively applied for universal benefit, not bought off for private ends.
Solving the crisis is not something any individual can bring about alone. But nor can it happen unless many resolve to do what they each can and co-ordinate their efforts. We must all act within our own spheres of influence. For lawyers, those spheres of influence can be relatively large and reasonably important. Clients listen to us (on the whole).
Climate is not a purely technical, environmental law issue. It is now a material risk for all manner of businesses, investors, and policy makers. How will they protect against risk of disruption; the availability and cost of insurance; reputational risk (what if clients or consumers won’t touch you if your climate credentials are not up to scratch?); risk of being sued (where harms flowing from your actions are becoming more foreseeable, less deniable); economic and social risks (what if markets crash so no one can afford your product, or your own assets lose their value? or there is a move away from acquiring non-essential items?); how should we prepare clients for the prospect of greater responsibilities accompanying the rights of ownership; of having to assume responsibility for externalities they cause or contribute to; or of contracts building in greater flexibility and real time risk management processes between counterparties, rather than being the territory on which risk is batted into one another’s court? There are few areas of practice, or clients, left untouched by such issues before long.
If we are raising these matters with clients and, particularly, if we are telling them that if they will not heed our advice we may have to review whether we will retain them as clients, the message will quickly start getting through. This will be all the more so if lots of lawyers and law firms adopt this approach: if we initiate a race to the top, rather than the bottom. Lawyers tend to prefer to follow, rather than create, precedent, so many may be reassured to know adopting such an approach means following other professionals, not breaking new ground.
Acknowledging responsibility for advice enabled emissions
There is already the Glasgow Finance Alliance for Net Zero initiative, which has identified Financed Emissions (which measures the greenhouse gases produced by different investments). GFANZ involves 160 financial institutions who have pledged to measure and reduce the emissions deriving from their core activities. The concept has also been taken up by advertisers with the recent launch of Advertised Emissions, a programme that enables advertising agencies to recognise the emissions deriving from their work to increase consumption of high emission products and to take steps to reverse the trend. They will do this not by doing less work, but by working with clients with more positive footprints (creating more positive “brainprints” Solitaire Townsend calls it, along with the concept of “emissions of influence”). Don’t these sound attractive for lawyers? Are we ready for Lawyered Emissions – the measurement of emissions associated with our advice and commitments to reducing these by advising clients with - and to achieve -smaller carbon footprints? Why not (other than clarifying some misperceptions that plague the profession about what we can and cannot do in terms of client selection, which can easily be addressed)?
As such concepts and practises become more familiar in the professional services realm (see also the debates taking place recently within McKinsey) and clients begin to ask routinely what our Lawyered Emissions are and use it to inform who they instruct, and as lawyers themselves increasingly make career decisions on a similar basis, tipping points and material change do not seem so far away. Talk was of transition to a greener economy. Now that seems too slow and we need transformation – but that does not feel impossible, despite the disappointments of Glasgow.
I have heard kneejerk mutterings about the cost of change, but it was well over a decade ago that the Stern Review established the cost of inaction dwarfs that of making the necessary changes and this is only more so today than it was then. In any event, much of what is required is different Continuing Professional Development (educating colleagues on the material issues) and alternative Business Development (new client relationships and messaging) and the budgets are already there, they just need redirecting. The new business gained will soon replace any of the old lost or discarded and the new will enable a market and society far healthier and, yes, sustainable than what otherwise awaits.
Circling back to that formula, it includes one number we want to see go up (the rate of emissions reductions), one that is a constant (the 2030 date) and one that will hopefully not rise. It is all very different to the measures of success we are used to within law firms which, throughout my career, have all been about more, more, more (whether chargeable hours, billed fees, or profits per equity partner) with little room, or need, for discernment. As we proceed through this decisive decade, it is exactly that ability to identify where balance and harmony best sit between ostensibly competing, but ultimately aligned, interests that will provide the foundation and measure of success.
We may need to embrace some of the activist spirit within us to initiate the changes we need, but we can do it within the profession if we come together. Maybe Glasgow’s shortcomings will prove the catalyst for the change we need to be and - to their surprise and ours, perhaps - place us closer to the true XR spirit than the debased version described above.
Thanks for sharing. I've no hope for the future. We're simply too far gone to ameliorate or negate decades worth of extraction, burning and consumption. You say: "We may need to embrace some of the activist spirit within us to initiate the changes we need, but we can do it within the profession if we come together." I don't see the legal profession doing anything more than continuing the same pattern of behaviour that they've done for my entire working life (40 years). There will be a few outliers but the majority will be scared to death of stepping outside their retainer in case they're sued. I agree that the legal profession could be a force for good but I suspect it will spend more time defending its clients from the onslaught of climate change than it will influencing them about their (sometimes) egregious, earth-wrecking behaviour. Take care, Julian