Lawyers should have “ethical obligation” to advise on climate risks

Crosland: The rule of law is being corrupted

Lawyers should be ethically obliged to advise clients of the serious risks – legal or otherwise – of pursuing activities that risk exacerbating climate change.

An open letter signed by more than 170 lawyers – including 16 KCs – urged colleagues to stop supporting clients contributing to the climate crisis and “profoundly change their practices by engaging in climate conscious lawyering”.

The letter was organised by Plan B.Earth – a charity that supports strategic legal action against climate change – and the Good Law Project.

It acknowledged the “substantial evidence that breaching the 1.5°C temperature goal established by the Paris Agreement on Climate Change risks mass loss of life and threatens the conditions for a stable civilisation, including the rule of law”.

It pointed to the Law Society’s climate change resolution, which resolves to take rapid action consistent with restricting global warming to 1.5°C compared to pre-industrial levels.

At the same time, US-based group Law Students for Climate Accountability published its latest scorecard, marking the leading law firms over the extent to which their work contributed to climate change. Four of the five magic circle firms received an ‘F’, for the most damaging climate practices.

It found too that the 100 largest firms facilitated $1.36tn in fossil-fuel transactions and litigated a total of 358 cases for fossil-fuel clients in the previous five years, both increases on the previous five years.

The letter said: “The City is one of the largest global centres for financing fossil fuel projects, assessed in 2019 as supporting at least 15% of global emissions. It has been estimated by Aviva that investments in the FTSE100 are driving us towards 4°C warming.

“As noted, our lawyers advise on these deals and defend them in court, actively undermining the international community’s commitment to reduce carbon dioxide emissions as a matter of urgency (by around 50% by 2030).”

It argued that lawyers “must be part of the solution” by “profoundly change their practices by engaging in climate conscious lawyering”.

The letter went on: “It is unconscionable to pursue a course of conduct for short-term profit knowing that it exposes the public to intolerable risks of disaster…

“Lawyers who support transactions inconsistent with the 1.5°C limit expose themselves and their clients to substantial legal risk, as well as the real-world risk of catastrophe.

“Instead, lawyers must use their influence for good, supporting their clients in making the urgent transformation to business practices that is required to avert disaster.”

The letter advanced three propositions – “modest” in the context of the climate emergency – that it urged regulators to support and enforce.

First, all lawyers must ensure “they acquire and maintain understanding” of the issue.

Second, they should be “ethically obliged to advise their clients, where relevant and appropriate, of the serious risks (legal and otherwise) of pursuing any investment, project or transaction that is inconsistent with the pathway to 1.5°C.”

Third, lawyers should support efforts by the judiciary to develop “climate literacy, and in appropriate cases, ensure courts have access to relevant evidence concerning the climate emergency and have due regard to the compatibility of any investment, project or transaction with the 1.5°C threshold.”

This included when dealing with climate protestors, the letter implying that the emergency may be a good defence to charges.

It also suggested that those providing misleading information about their contribution to climate change might face criminal prosecution.

The letter concluded: “The climate crisis is not just ‘another issue’. To the contrary, a stable climate is the foundation for a stable civilisation and the rule of law. Breaching the 1.5°C Paris temperature goal thus threatens disorder and the end of the rule of law.”

Margherita Cornaglia, a junior barrister and one of the drafters of the letter, said: “The legal profession is awakening to the impact that the climate and ecological crisis has and will continue to have on the application and development of legal principle.

“Junior lawyers and lawyers joining the profession are increasingly knowledgeable about climate law and litigation, increasingly concerned and increasingly motivated to be part of the solution, not the problem. The tides are changing.”

Barrister Tim Crosland, director of Plan B.Earth – who last year was found in contempt of court for leaking the result of a Supreme Court ruling on the Heathrow airport expansion – added: “The rule of law is being corrupted.

“There’s no accountability for those exposing the public to extreme risks by knowingly breaching the 1.5˚C climate change limit – humanity’s lifeline – while those taking peaceful and proportionate action to prevent the ultimate crime against humanity are persecuted and threatened with 10 years’ imprisonment. It’s time to take a stand.”

Section 78 of the Police, Crime, Sentencing and Courts Act 2022 provides that peaceful protestors who obstruct the public in the exercise of a right could face up to 10 years’ imprisonment if they cause “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.

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