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What does climate change mean for lawyers?

  • duelssociety
  • Aug 24, 2021
  • 4 min read

By Natasha Jacobs - DUELS Essay Competition Winner 2021


“Climate change”, a term once predicted by climatologists, such as Wallace-Smith-Broecker, as a hypothetical problem for the future, has very much become a reality within today’s world.[1] The omnipresence of climate change impacts is undeniable, as evidenced by the substantial amount of media reporting about the danger and threat climate change poses to our world. Severe flooding in Germany and Belgium demonstrates the fast-paced and detrimental impacts climate change can have, although, this individual event demonstrates a small glimpse into the multiple-facets of climate change. Climate change is destructive for society, for example: in creating fatalities, destroying infrastructure and negatively impacting the tourism industry. An area of society which will be greatly impacted by climate change is the legal sector, and the role of lawyers. Nick Hilborne suggests climate change could revolutionise the role of lawyers.[2] This essay will consider the credibility of this claim in determining what climate change means for lawyers.


As climate change emerges as a dominating entity affecting multiple areas within our society and lives, the impact for lawyers will be the transformation of the legal sector into one which is more conscious and aware of climate change and environmental law. Within a more climate aware legal sector there will be increased specialisation by lawyers within the area of environmental law; this will result in an increased body of environmental law legal materials and legal debate. The transformation of the legal sector is already underway, for example, the American Bar Association in 2019 adopted a climate change resolution, urging its members to highlight the impacts of climate change to their clients within their legal work and to increase their environmental law pro-bono work.[3]


The global transformation of the legal sector to be more environmental and climate change aware, will result in increased litigation, with lawyers referencing climate change more within cases. An existing legal body of environmental cases does exist, for example litigation in the Volkswagen’s Dieselgate emissions scandal and holding governments responsible for air pollution, thus forcing them to reduce emissions, as evidenced in Ugrenda Foundation v State of Netherlands (2015). There is likely to be increased environmental climate change litigation, particularly against governments and multinational companies, regarding alleged violations of both individual and groups human rights.


The environmental law sector is interdisciplinary, as such, numerous legal sectors are impacted by environmental law; [4] this will further the emerging global legal trend of environmental and climate change consciousness in legal instruments and cases. For example, individual sectors of law, such as planning permission will require increased knowledge of environmental protections; and this will result in an increased litigation which considers existing environmental law doctrines including polluter pays principle and sustainable development. Furthermore, medical law may be impacted in considering the impact climate change has on medical health issues, such as asthma and air pollution. An increase in litigation on the behalf of the protection of children against governments failing to act on climate change is also likely to increase, for example the Portuguese children suing their government over significant air pollution causing sickness.[5]


Climate change will also impact the legal sector by requiring existing national and international legal instruments to be updated to better reflect and consider the impacts of climate change and to better protect those who are adversely impacted by it. Existing environmental protection legal instruments considering environmental protection of flora and fauna such as the Stockholm Declaration and existing environmental caselaw, such as Southern Bluefin Tuna Cases (1999), are likely to be scrutinised in consideration of whether these provide adequate protection.


Climate change legal instruments and litigation is also linked to human rights protection. Currently, the 1951 refugee definition as defined within international law does not recognise climate change refugees, and thus those who must move due to climate change are not protected by international law refugee rights such as non-refoulement. Climate change has already impacted this specific area of law by promoting legal debate as to whether climate change refugees should be incorporated within the definition and whether a new body of international law should be developed to better protect those affected by climate change. Climate change has created a new area of law with courts now considering climate change cases. For example, the UN Human Rights Committee considered in the Teitiota case whether climate change impacts on land could affect an individual’s right to life, which is protected under international law.


It is clear, that climate change is not only transforming the legal sector, but also every aspect of the world we live in and numerous sectors facing greater environmental scrutiny.[6] As climate change awareness and environmental consciousness becomes a growing geo-political trend, it will revolutionise in the long-term the current legal system and role of lawyers, to one which considers climate change prevention and environmental protection essential. Different areas of the world and legal systems will adapt differently to this environmentally conscious legal transformation, with some demonstrating a willingness and others not to the change. This might adversely impact the coherency of different legal systems and would need the facilitation of a smooth legal transformation. In the short term, the impact of climate change events for a lawyer is likely to result in an increase in litigation cases, particularly for insurance claims, for individuals, homeowners and businesses.


In conclusion, climate change will transform the global legal sector into one which is more environmental and climate change aware. The role of the lawyer will mostly remain the same, albeit with more knowledge of climate change law. Lawyers will still provide representation for those who require it, even if in the court of public opinion their client is deemed to contribute to climate change, for example Slaughter and May representation of fossil fuel companies resulting in extinction rebellion protests outside their offices.[7] This essay suggests lawyers will be at the forefront of ensuring the world protects against climate change and provides protection for those affected by climate change.


 
 
 

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