Posted on May 1, 2023 by Amy Edwards
As we celebrate the 54th anniversary of Earth Day, it is hard to imagine where we will be 54 years from now. Will we have made the necessary changes to reduce the adverse impacts from climate change? Will we have restored biological diversity? Will we have curbed global plastics pollution? And what about PFAS?
Lawyers have an important role in addressing each of these challenges. In this article I address some of the things that lawyers have been doing in one of these areas – climate change. As John Kerry, Special Presidential Envoy for Climate, said at the American Bar Association (ABA) annual meeting in 2021, every lawyer is a climate lawyer now.
In 2019, after the United States had withdrawn from the Paris Agreement, the American Bar Association (ABA) House of Delegates adopted a climate change resolution (No. 111) urging action on climate change and recognizing the important role that lawyers have in combatting it. The Resolution passed unanimously. It urges:
- Federal, state and local governments, and the private sector, to take action to reduce greenhouse gas emissions in the United States to net zero or below.
- Congress to enact legislation to enact measures for climate adaptation and mitigation, the just transition to net zero, and sustainable development.
- The United States to engage in constructive international discussions and to implement multilateral agreements.
- Lawyers to engage in “pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change, and to advise their clients of the risks and opportunities that climate change provides.”
Bar associations in other parts of the world soon followed with similar resolutions or climate statements. The International Bar Association (IBA) adopted a Climate Crisis Statement in May of 2020, focusing on the role of lawyers and law associations in addressing climate change. In particular, this resolution advocated that legal professionals adopt a climate-conscious approach to practice; become involved in developing frameworks which support the attainment of climate neutrality; promote the United Nation’s sustainable development goals; engage with law students and law schools about the role of law in climate change; and adopt sustainable practices in their law practice.
The Law Society of England and Wales (LSEW) enacted a similar climate change resolution in October 2021. This resolution committed the association to immediately develop plans to tackle the climate crisis and to provide ongoing support and guidance to practitioners. It also encouraged lawyers to adopt a climate-conscious approach to practice; urged law firms and related organizations to operate in a manner consistent with limiting global warming to well below 2 degrees; and discussed the role of practitioners and law firms in promoting adaptation strategies. Similar climate resolutions or statements have been adopted or are under consideration by the Australian bar association, the New Zealand bar, the Japan Federation of Bar Associations, and others.
Lawyers in the United Kingdom formed and supported The Chancery Lane Project (TCLP). TCLP has developed and approved more than two hundred climate-conscious contract provisions that can be used in a wide range of industries (e.g., real estate, construction, supply chain, employment, energy, finance, intellectual property, etc.). The TCLP’s goal is to develop contract provisions that allow every contract to enable solutions to climate change.
That effort is now being adapted to laws in the United States and Japan. The ABA intends to use its networks to educate lawyers about the availability of these climate-conscious contract provisions and to encourage their use.
Lawyers in the United Kingdom are under intense pressure to do more about climate change, as this short video indicates. After adopting its climate change resolution in 2021, the LSEW published landmark climate change guidance for solicitors on April 19, 2023. This guidance discusses how companies should manage their business to be consistent with a transition to net zero. The guidance also provides direction to solicitors about how climate change physical and legal risks may be relevant to client advice; identifies issues that may be relevant when considering the interplay of legal, climate change, and professional duties; and addresses issues relevant to the solicitor-client relationship. We expect that there will be a lot of thoughtful discussion about this guidance in the United States.
There are ongoing efforts by the ABA, IBA, Bar Association of Brazil (OAB), and LSEW to reach out to other lawyers and bar associations around the globe about the role of lawyers and bar associations in addressing climate change. The coalition of these four bar organizations organized formal programming at COP27, and is working on similar programs for Bonn (summer of 2023) and Dubai (late November at COP28). In the meantime, the coalition is also hosting regular webinars on the 2015 Paris Agreement and climate-related issues.
Lawyers and bar associations can, and must, take a stance and address the most pressing environmental issues facing the Earth today. The 1.3 million practicing attorneys in the US could be a powerful force for positive change. Will you commit to becoming a climate-conscious lawyer, evaluate whether you can use climate-conscious contract provisions in your practice, and thereby take a stance on this very pressing environmental challenge?