Climate Clauses Impactful ways young lawyers can contribute to tackling the climate crisis
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ou can hardly open LinkedIn, the Financial Review or any other media source these days without being confronted with at least one article about the impacts of climate change and the action that needs to be taken to keep global warming to below 1.5 degrees Celsius. Despite this, in its most recent report, the Intergovernmental Panel on Climate Change (IPCC) states that ‘Global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in carbon dioxide (CO2) and other greenhouse gas emissions occur in the coming decades’. The IPCC calls on the global community to make strong, rapid and sustained reductions in our emissions to avoid catastrophic climate extremes in every region across the globe. Closer to home, the New South Wales Young Lawyers Committee published a policy statement in late 2019 that recognises that we are facing a climate emergency and that ‘the law needs to enable and require Australia to rapidly decrease CO2 (and other greenhouse gas) emissions and to be legally accountable for their adverse contributions to the impacts of climate change’. The question is, can young lawyers actually do anything about the climate crisis? The answer may not be immediately clear. Certainly, a majority of young lawyers will not be working in a field that provides them with the opportunity to take part in running strategic climate change litigation. However, as outlined below, there are a number of other initiatives that young lawyers, (and lawyers of all ages!) can take to contribute to tackling the climate crisis.
Adopting a climate conscious approach to daily legal practice The Honourable Justice Preston SC, the Chief Judge of the New South Wales Land and Environment Court recently
spoke on how lawyers can implement a climate conscious approach in daily legal practice. At the heart of his speech was the concept of giving ‘holistic advice’. Justice Preston notes that when lawyers provide advice to solve a legal problem or dispute, they may already consider financial or relational consequences of different courses of action. He goes on to state that ‘Adding the climate change consequences as a consideration is a natural extension of this everyday practice’. Justice Preston urges lawyers to adopt a climate conscious approach by considering possible climate change issues and consequences of different courses of action and incorporating these into the legal advice given. This may apply across a smorgasbord of different practice areas. Young lawyers may be involved in advising on clauses in transactions where there may be risks of extreme weather events damaging property or other business assets, or disrupting supply routes. As seen more and more frequently it could also involve advising on the risk to companies from either contributing to the climate crisis or failing to take action to adapt to climate change. It could also include advising clients on climate change impacts, such as sea level rise or bushfire risk, which might impact their plans to develop an area of land.
Consider whether climate clauses are suitable for your contracts Flowing on from Justice Preston’s advice, if you’re a young lawyer involved in drafting contractual clauses and commercial agreements you may wish to familiarise yourself with The Chancery Lane Project and its climate clauses toolkit. The toolkit contains new and practical contractual clauses that can be incorporated into law firm precedents and commercial agreements to deliver climate solutions. Even if young lawyers
may not be overly familiar with this emerging area of the law, they can consider the applicability of a draft clause which has been drafted by sector specialist lawyers and peer-reviewed. There are hundreds of draft clauses and precedents available, including everything from shareholder resolutions relating to a company’s climate change commitments to clauses for renewable energy requirements in supply contracts and to ‘Coolerplate’ clauses (climate aligned boilerplate clauses). Whilst these clauses may not be applicable to every contract or matter, young lawyers could consider following Justice Preston’s ‘holistic advice’ approach and looking to whether there are any situations in which they may be applicable.
Working on law reform activities 2020 and 2021 saw an overhaul of several pieces of environmental legislation in Western Australia as well as on a federal level, including the Environmental Protection Act 1986 (WA) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). There are also ongoing consultations on various environmental policies at both a State and local government level. Therefore, an obvious way for young lawyers to contribute to tackling the climate crisis is to lend their legal expertise to organisations who make law reform submissions on climate change matters, or alternatively to draft their own submission on climate-related law reform matters.
Secondment to a community legal centre or other organisations working on climate change litigation Depending on young lawyers’ work situations, they may consider investigating whether their firm is open to secondments to community legal centres or other organisations working on climate change matters. Often, community legal centres or
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