‘Use legal skills to solve this wicked problem’: The role of lawyers in climate change debates, litigation and social change

‘Use legal skills to solve this wicked problem’: The role of lawyers in climate change debates, litigation and social change

30 November 2021 By Naomi Neilson
The role of lawyers in climate change debates

The Australian legal profession will soon be in the thick of climate change litigation that will affect most areas of practice, clients and stakeholders. Not only will lawyers be obligated to use their legal skills to respond to the crisis, but will be expected to keep their pulse on possible reforms, have real conversations with leaders and commit to supporting the community and any movements that drive positive change.  

Major commitments to reach critical environmental and net-zero goals were made at the United Nations 2021 Climate Change Conference (COP26) and, as that plays out here in Australia, lawyers and the legal profession as a whole will be expected to ensure that their clients, stakeholders and their own practices are prepared.  

Although environment and planning laws are still viewed as a boutique area of specialist practice and specific in its remit, Environmental Defenders Office head of policy and law reform Rachel Walmsley said that climate change is becoming a more invasive issue that is increasingly relevant in other practice areas, including constitutional, corporate, torts, human rights and insurance law, “just to name a few”.

“I would strongly argue that all legal practitioners need to be aware of climate related issues, consider what we must do to evolve our practices, what we must advise our clients and ask how we can contribute to the necessary transition,” she said. “Now that the summit is over, we need to focus on the legal details, how we will meet the necessary targets and the role of the law and legal profession in achieving these.”

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In an event hosted by the NSW Law Society, four experts discussed the role that lawyers would play in the upcoming climate change litigation boom. Herbert Smith Freehills (HSF) partner Christine Tran said that it would be really important as legal practitioners “to keep a pulse on climate change litigation and where it’s headed”.

Referring to the commitment made by around 450 organisations in 45 countries to achieve net-zero by mid-century, Ms Tran said there would be some “interesting implications” for the legal profession and corporate Australia, “because it’s driving through commitments from the giant corporate through to the grassroots level”.

“In terms of this movement towards net zero and climate commitments that have been made by various countries, I think it’s really relevant to lawyers, because as governments and companies push to make those climate commitments, that’s where companies can find themselves in some risky situations. Particularly, for example, if they were to make disclosures regarding those commitments and whether there is a reasonable basis for testing it in climate change litigation,” Ms Tran explained.

The trends and predictions for climate change litigation

During her presentation, Ms Tran explained that the United States is currently an outlier in having the “largest number of cases” of climate change litigation, numbered in the thousands. Comparatively, Australia’s current case numbers sit at 120. Although that is miniscule in comparison, Ms Tran said that based on per capita, Australia “has the highest number of climate change litigation cases” in courtrooms.

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According to Ms Tran, there are six types of climate change litigation either currently playing out in Australia or will soon be at the forefront. The first, she said, is administrative law claims or challenges to planning decisions or environment permits, followed by tortious claims, statutory breaches of duties, consumer law, corporate disclosure cases like “greenwashing” and, finally, the right to space or right to term to describe cases that “deploy human rights claims in the litigation”.

“In terms of looking ahead to litigation trends, there are probably three. The first is an increase in the volume of cases. What I’m particularly interested in seeing is whether or not there is going to be a movement towards more private action for damages. To date, a lot of climate change litigation have sought declaratory relief,” Ms Tran said.

The second trend, Ms Tran went on, is increased regulatory risks. In the last 12 months, the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA) have signalled that they are interested in greenwashing claims – which is the process of conveying misleading information about a company’s environmental policies – as part of their monitoring.

“Thirdly, and this is probably predicting a bit further because our court system is so well-regarded, but the use of international adjudication bodies,” Ms Tran said. “There’s a possibility in future that the jurisdictional possibility of the International Criminal Court may include a new crime of ecocide or destructions of eco systems.”

Ms Walmsley mirrored much of these trends in her own presentation, adding that there has been an evolution of project decisions and innovative cases in recent times. This includes a recent finding by a federal court that Environment Minister Sussan Ley has a duty of care to protect young people from the climate crisis.

In a similar landmark case that is yet to be decided, a human rights complaint has been made against the Australian government by Torres Strait Islanders suffering the effects of climate change. Given how similar matters have played out here in Australia and in our closest neighbours, the experts are interested in how it ends.

Looking ahead, Ms Walmsley said a key aim in the next few years is a focus on law reform and the opportunities for Australia. The Environmental Defenders Office identified five areas, including to act immediately: “The science and economic and social and environmental imperatives are really clear. There are benefits to be gained and significant costs to be avoided by taking action now.”

Strategic legal interventions on climate change are needed at every level of government, Ms Walmsley added. Some of the more recent interventions included specific analysis of disclosure by individual companies, critical analysis of financial institutions, United Nations-level complaints about the impact of Australian policy on human rights and advice specifically on international obligations for the reef.

In short, Ms Walmsley said this is “absolutely the critical decade for climate action” and, where governments may be lagging, the private sector will lead the way, leaving lawyers and the legal profession with a major responsibility to guide them.

“Lawyers have a role in facilitating the necessary and just transition. This includes everything from attending climate summits to advising clients on climate risks and scope of disclosure requirements, through to engaging in policy and law reform processes to considering pro bono work,” Ms Walmsley commented.

Where social justice meets climate change and the role of lawyers

In terms of how this will impact consumers, Public Interest Advocacy Centre (PIAC) CEO Jonathon Hunyor said a “more immediate, sustainable and equitable solution” would be to help low-income households become electrified and get access to cheap solar energy solutions. These are things that can happen now, he added, and will need the support of the legal profession over the next few years.

“One of the challenges for lawyers looking to support social change is how we make sure that we’re truly supporting the interests and aspirations of the community, and not just doing something that we think seems like a good idea,” Mr Hunyor said.

Part of that problem, he said, is a structural one. The law is weighted on the status quo, “which doesn’t have a great track record for delivering equity”. The tools that the profession does currently have are limited and support only incremental change, “which frankly isn’t going to cut it”. However, that doesn’t mean lawyers give up.

“What it means is committing to building more power in the community and supporting movements that will drive change,” Mr Hunyor said during his presentation. “It requires that we turn up, we listen and amplify the voices of others, and ensure that it is the community that is setting the climate change agendas.”

The role of the in-house lawyer in guiding their clients and colleagues

Given that the climate change commitments will largely take place in the private sector, in-house lawyers should be prepared for what that means for the business, for their obligations to clients and for upcoming regulatory requirements, particularly as regulators like ASIC and APRA look to further their monitoring and surveillance.

Ms Tran said it is important that in-house lawyers are in the room with directors and are involved in vetting relevant statements. This means looking beyond mandatory disclosures that need to be made and considering also marketing statements.

“Make sure governance frameworks that a lot of listed entities already have in place are translated to any climate change related risk carriers,” Ms Tran added. “Now, that’s a very easy thing to say, incredibly difficult to do, but make sure that when you are making a statement about climate commitments, check that you have a reasonable basis for that. Do you have a plan in place? What are some of the assumptions that underline your plan? Has that plan been stress-tested?”

Related to that, Ms Tran said these lawyers should “keep a pulse on developments”. Climate change is becoming a very real issue for companies quite rapidly. In the last few years, Ms Tran said she has observed how the risks are translating and “how those risks are expanding as people take a more nuanced view about it”.

Australian Renewable Energy Agency general counsel Cameron Kelly agreed, telling in-house lawyers that whether their clients are big government agencies or smaller, not-for-profit organisations, “you really need to take it upon yourself to be interested in it and keep up to date will of the escalation in climate change litigation”.

The other lens worth mentioning, he said, is the rapid, escalating focus on environment and social governance (ESG) reporting. Dr Kelly said it’s no longer just an add-on, “it’s something front and centre” that is spreading globally and is no longer restricted to ASX-listed companies and to other major organisations.

“We’re about to see a massive uptick in climate-change litigation. It may not happen over the next six months, but it certainly will happen,” Dr Kelly said. “As in-house lawyers, it’s really on you to keep abreast of that and be prepared to talk about it.”

‘Use legal skills to solve this wicked problem’: The role of lawyers in climate change debates, litigation and social change
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