Nigel Brook
Helping clients cope with the repercussions of climate change could transform the legal profession, a Law Society report has predicted, as lawyers focus on “proactive risk management advice”, knowledge of numerous legal frameworks and “out-of-the-box thinking”.
The report, part of the society’s Future Worlds 2050 project, said lawyers would play a “crucial role” in the response to climate change over the next 30 years.
“Lawyers will be asked to help their clients identify, avoid and manage physical, liability and transition risks linked to climate change.”
The report said these requests would come with their own challenges, such as the multiplicity of jurisdictions in which climate liability cases can be brought, as well as the need for “novel technological solutions”.
The report, Climate change risks – the future of law as we know it? [1], was written by Nigel Brook, head of City firm Clyde & Co’s reinsurance team and global resilience and climate change risk practice, and trainee solicitor Zaneta Sedilekova, founder of the firm’s Climate Change Group, a trainee-led initiative.
The authors said the escalating frequency and severity of extreme weather events could have “far-reaching implications for lawyers and their clients across all sectors”.
The more commonplace extreme weather events became, “the less likely they are to be considered unpredictable and thus insurable”, leaving losses to be carried by individuals, businesses and countries themselves.
“Lawyers and their insurer clients can play a crucial role in enabling innovative solutions to the risks posed by extreme weather events.”
Zaneta Sedilekova
The authors said 2019 and 2020 saw an escalation in the use of climate litigation, an umbrella term that included all lawsuits in which climate change played a central or peripheral role, by individual activists and advocacy groups.
“Managing and mitigating the risk of litigation has always been a traditional role of legal advisors.
“However, liability risks posed by climate change are of a different nature than traditional litigation risks. Climate change is a global issue unattached to a particular country or jurisdiction.
“This allows claimants to shop for a forum with law best suited for the liability they are seeking to establish. This trend can be seen in both the types of actions brought before courts in countries around the world, as well as claimants’ choice of jurisdiction.”
The report went on: “Choice of forum is not unique to climate change litigation and has been commonly seen in international private litigation.
“What is unique about liability risk posed by climate change is the breadth of options in both types of forum and legal grounds that the claimants can choose from.”
The report said a growing source of climate-based litigation would come from activist investors, who used their shareholdings to overcome problems of legal standing.
Giving the example of the ClientEarth litigation against Polish energy firm Enea, a case in which a claimant became an investor purely to challenge a company’s decision to back a coal-fired power plant, the authors said lawyers would play “a crucial role in advancing their shareholder clients’ cases against unsustainable investment decisions and demanding enhanced disclosure of climate change risks”.
New Zealand became the first country to make climate-related financial disclosures mandatory in September 2020, followed by the publication of a roadmap by the UK government in November, paving the way for compulsory disclosures by 2025.
The report added that for lawyers who responded to the challenges of climate change, the results would be “both personally and professionally rewarding” as they were able “to stand at the forefront of the fight against one of the greatest threats of the 21st century”.