YLC Climate Clauses

Climate Clauses

Impactful ways young lawyers can contribute to tackling the climate crisis

You 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

Impactful ways young lawyers can contribute to tackling the climate crisis

environmental organisations have limited resources and are reliant on funding. By being a secondee, young lawyers can contribute to the capacity of a community legal centre or organisation to undertake climate change related work.

Organisations include the Environmental Defenders Office, the WA Branch of the National Environmental Law Association, WA Climate Leaders and Lawyers for Climate Justice. A further list of Australian organisations that are working to fight climate change has been published by the Australian Pro Bono Centre.

Alternatively, it may also be possible to provide pro bono legal assistance for legal needs that may arise because of the higher incidence of natural disasters such as bushfires, flooding and other extreme weather events across the country. In Western Australia, for example, Law Access and Legal Aid WA have facilitated pro bono assistance to communities that were affected by Cyclone Seroja in 2021. Legal issues that might arise during natural disasters include insurance claims, housing and tenancy issues, and destroyed wills. If a secondment or providing pro bono assistance is out of the question, then young lawyers could consider volunteering with the previously mentioned organisations on specific projects which require a lesser time commitment.

For example, depending on their level of experience and skills, young lawyers are able to assist with providing community legal education. This can include assisting with the organising and delivering of seminars and webinars on climate change related issues. Alternatively, young lawyers may be able to assist with the drafting or updating of written materials distributed by environmental law organisations. This can include ensuring that written materials such as factsheets, checklists and legal information guides are written in plain English, and accurately reflect current legislation and policy.

Conclusion

Climate change litigation may not form a part of the daily legal practice of many young lawyers. Despite this, young lawyers have the ability to make an important contribution to the legal fight of tackling climate change. In the words of the Australian Pro Bono Centre’s Guide to the Climate Crisis, ‘While our individual actions may seem small, collectively the legal profession can show leadership — and have a substantial impact on the climate crisis’.