13 December 2021
By Justice Brian Preston, Chief Judge, New South Wales Land and Environment Court
A lawyer’s role is to advise on the law. This proposition appears straight forward. Unfortunately, it is not. It is especially problematic with respect to problems involving climate change. There are at least two challenges that lawyers face in giving legal advice in a time of climate change. First, lawyers need to give holistic legal advice and, secondly, lawyers must grapple with the uncertainty and evolution of the law in giving such advice.
Starting with the first challenge, lawyers need to provide holistic advice on both the legal and non-legal dimensions of climate change. Legal problems are never only about the law, but involve non-legal issues, including emotional, psychological, social, financial and ethical issues. When it comes to climate change, these non-legal considerations are particularly pertinent. A lawyer, in order to advise clients properly, will need to identify both the legal and non-legal issues relating to climate change and address these issues in the advice. This requires lawyers to leave their comfort zone of the law and to deal with the non-legal issues that are relevant to the clients’ problem. Even with respect to the legal issues, lawyers may need to go beyond the conventional and jurisdictionally-bounded sources of law. This may involve having regard to sources of law internationally or in foreign jurisdictions. It may also involve having regard to so-called soft law and environmental principles.
Holistic legal advice to business clients encompasses all climate-related risks, and not just those with direct legal consequences. These risks fall into three categories: physical risks, transition risks, and liability risks. Physical risks refer to those risks that physically impact clients’ businesses, such as the risk of extreme weather events damaging business assets. Transition risks are risks associated with adjustments to a lower-carbon economy. Liability risk is the risk of being held to account for contributing to, or failing to adapt to, climate change. This includes costs associated with climate change litigation. Advice on all of these types of climate-related risk form part of holistic legal advice.
The need for lawyers to provide such holistic legal advice has been recognised by law associations and peak bodies. The American Bar Association (ABA) adopted a resolution in August 2019 calling on ‘federal, state, local, territorial, and tribal governments, and the private sector, to recognize their obligation to address climate change’. The ABA resolution urges lawyers to take a climate conscious approach to legal advice by advising their clients of the risks and opportunities that climate change provides. The International Bar Association (IBA), on 5 May 2020 ratified the IBA Climate Crisis Statement. The Statement urges lawyers to take a climate conscious approach to problems encountered in daily legal practice, and to advise clients of the potential risks, liability and reputational damage arising from activity that negatively contributes to the climate crisis. The Statement also addresses the integration of the sustainable development goals (SDGs) with the rule of law: “The IBA implores lawyers to support and engage with the SDGs, particularly Goals 1, 7, 13 and 16, on the understanding that the rule of law is enshrined in Goal 16, which all lawyers should already respect and promote.”
The second challenge faced by lawyers in giving legal advice is grappling with the uncertainty and evolution of the law relevant to climate change. The rule of law values stability, certainty and predictability in the law. Yet, climate change law is evolving, uncertain and unpredictable. Lawyers must find a way to square their commitments to the rule of law with the complex reality of advising on climate change. Four factors contribute to this problem.
First, a lawyer must identify the legal rule that is to be applied to the problem of concern. With the complex, polycentric and uncertain problems that climate change raises, there rarely will be one clearly applicable legal rule. Where there is no clearly applicable legal rule or more than one legal rule is potentially relevant, the lawyer must choose which legal rule to apply. This might involve predicting what a court might decide is the applicable legal rule. Having identified the legal rule to be applied, its meaning and scope needs to be determined. Here too choices need to be made. As Hart established in The Concept of Law, all legal rules require interpretation, and there will often be uncertainty as to when and how the rule applies. This process of finding, interpreting and applying the law is attended with doubt, which may make it difficult for a lawyer to provide unequivocal legal advice.
Second, this problem of identifying, interpreting and applying the law is made more acute in areas of law that are rapidly evolving. Environmental law has been understood as 'hot law', in that it is concerned with ‘“hot situations” in which the agreed frames, legal and otherwise, for how we understand and act in the world are in a constant state of flux and contestation’. Climate change is legally disruptive leading to law that is novel, scientifically uncertain, legislatively based and entwined in policy. Providing legal advice on ‘hot law’ is accordingly attended with doubt.
Third, courts’ decisions pronounce the law and legal responsibilities retrospectively, after the action or inaction of government or enterprises has occurred. The courts of the future will be asked to determine the legality of present action and inaction of governments and enterprises in relation to climate change. In making its decision, the court may make choices in its identification, interpretation and application of the law that accord with the facts and values of the community at the time. This means that lawyers, in providing legal advice, must predict what courts are likely to pronounce to be the law and legal responsibilities in future litigation, and not just rely on what courts have held the law and legal responsibilities to be in past litigation.
Fourth, problems raised by climate change involve blurred boundaries between law, policy and fact. This is evident, for example, in appeals which review government decisions to grant or refuse a development consent on the merits (where this jurisdiction exists). The court must find and apply climate law and policy, and undertake extensive fact-finding. Lawyers advising on such merits review proceedings cannot simply say what the law is and thus anticipate a result; the court’s decision will be influenced by more than a strict view of “the law”, including governmental policy and the court’s findings of fact.
In responding to these two challenges of giving holistic legal advice and grappling with the uncertainty and evolution of the law, lawyers should implement a climate conscious approach. A climate conscious approach requires an active awareness of the reality of climate change and how it interacts with daily legal problems. A climate conscious approach demands, first, actively identifying the intersections between the issues of the legal problem or dispute and climate change issues and, second, giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address the climate change issues. Climate conscious lawyering is an essential way to respond to the challenges of being a lawyer in a time of climate change, and to grapple with the implications of these challenges for the rule of law.