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10 March 2022
By Dr Kim Bouwer, Assistant Professor, Durham Law School
All law students need to understand climate change; the entire context of their working lives will be shaped by the quest for net zero. Yet even climate conscious legal academics shy away from this responsibility, reluctant to burden our students with our own scholarly obsessions, in case this is at the cost of the best orthodox legal education. This is mirrored by the perceived tensions between the strictures of the rule of law and the need to address the multiple dimensions of climate change. But this perception neglects the reality that climate consciousness is no longer optional; all lawyers need to understand and apply legal norms in the context of a society dealing with the impacts of climate change, while transitioning to ‘net zero’ carbon economies.
Seven years ago, I argued for climate consciousness in daily legal practice. At the time, the picture of global climate change governance was looking pretty hopeless, both in developing adequate legal structures and in delivering global policy ambition. I suggested that climate conscious lawyers are mindful that climate change is as much a local and immediate issue, as it is a global problem of the past and future. They exercise conscious awareness of the problem, and recognise that climate issues brush up against their everyday practice (whether as academic or practising lawyers). Judge Preston has added that, through climate conscious reasoning, lawyers in practice can give advice and resolve legal problems in ways that meaningfully address climate change issues. A ‘climate conscious’ approach to the myriad issues arising in a daily practice of law accentuates the importance of lawyers’ conduct, decisions and advice in the context of climate change.
For lawyers practising in historically high-emitting states, climate conscious practice is no longer optional – and, indeed, never should have been. The collective international obligation to keep temperature increases well below 2 degrees Celsius, and many states’ domestic commitments to achieve ‘net zero’ emissions by mid-century, have changed that. Since 2008, in my adopted jurisdiction of England and Wales, a constitutional statute – the Climate Change Act 2008 – has required a transition to a low-carbon society. Since 2019, this Act has required a transition to net-zero. As such, it can now be argued that the Climate Change Act, and with it the net zero target, has a special constitutional status and is a fundamental norm which must be protected by the law. By analogy, human rights were introduced into domestic law less than a decade before the Climate Change Act. Bingham’s ‘thick’ account of the rule of law requires respect for and protection of the full range of human rights. So it is certainly arguable that, where stringent climate targets are legislated, there is less a question of whether climate trumps democracy, and more one of whether the perceived demands of orthodoxy can trump the democratically adopted net zero rule of law.
I appreciate that that bald statements about a new ‘net zero’ rule of law hide a world of complexity. The very meaning of ‘net zero’ is contested – as indeed is that of the rule of law – and the law and policy framework enacted to achieve it are still inadequate. It is not my project to resolve these struggles here. The analogy of human rights legislation is not a perfect one, by any means. In many respects, the law and policy framework designed (or claimed) to achieve net zero are inadequate, and there is no accepted, and normatively compelling, set of principles underlying ‘net zero’, as is the case with human rights.
Nevertheless, the daily practice of lawyers is and will be conducted in a web of climate law. Lawyers upholding and defending the rule of law can protect or confront clients in relation to wider legal obligations; but they would do so with an understanding where and how they are exposing themselves, and their clients, to risk. Any practising lawyer will need to know what that law is, as they are now required to interpret the law and provide advice in the context of climate change. This climate conscious reasoning – the need to interpret legal rules in such a way that promotes or better implements climate change goals, or takes account of a range of risks arising in the context of climate change – will take some learning. But to return to this imperfect but useful analogy, common lawyers learned to work with domestic human rights legislation. Failing to do similarly in relation to climate change law risks exposing practising lawyers to charges of professional misconduct. More importantly, not adequately understanding the scope and extent of this new reality means that climate unconscious lawyers will provide a poor service, neglecting the interests of their clients and their own practice.
This raises serious questions about the training and education of future lawyers.
The study of environmental law has traditionally been a niche topic in UK law degrees, and climate change law is more usually taught as an environmental law subtopic. Nothing I say below should be read as suggesting that this educational practice should not continue. Research-informed teaching on climate change law supports students’ normative understanding of the topic. This provides an opportunity to engage in depth with the topic, and supports critical engagement with questions of adequate ambition, justice, and society, which a ‘mainstreamed’ approach cannot reach.
However, legal educators now face the responsibility of ensuring that students graduating with a law degree leave our universities with an adequate understanding of what the climate crisis entails, and a capability of practising as climate conscious lawyers. This means they must be able to recognise the myriad ways in which climate issues are implicated in their daily practice, identifying risks to their clients’ business and to their own practice arising from these connections. They will need to be able to interpret existing legal rules in the context of climate change. This can only be done effectively if climate change education is embedded into the material that students must (or are most likely to) learn to enter legal practice. As a bare minimum, law students should understand the constitutional statutes that form the basis of domestic climate change law and governance, and have an opportunity to interpret common law (or statutory) rules in the context of climate problems.
Returning to my human rights analogy: it is inconceivable now that a student could graduate with a qualifying law degree, and not understand the operation of the (for now) Human Rights Act 1998 or the relationship human rights has with the common law and the rule of law. Yet, in 2022, a law student can graduate from the best UK universities without any understanding of the constitutional nature of the Climate Change Act 2008, the pervasive implications of carbon budgets, or the society-wide change that will – and must – happen throughout their life of practice. This is a duty that cannot be neglected out of deference to an outdated orthodoxy. Questions of how the law and legal institutions will adapt to or be shaped by the climate crisis, and how to protect what is valuable in these institutions, are questions they will need to resolve during current and future lawyers’ working lives.