May 05, 2021

Advocating for the Future

John C. Dernbach, Irma Russell, and Matt Bogoshian

Carbon dioxide levels in the atmosphere are higher than they have been in three million years. Human influence on the climate is so great that we are probably moving into a new geological epoch, the Anthropocene. The effects of climate change—visible only to trained observers and in computer models several decades ago—are now apparent everywhere. And the best available science tells us we need to reduce greenhouse gas (GHG) emissions to net zero or below around the globe by 2050, if not earlier, to avoid the worst effects of climate disruption. We have less than 30 years.

In this context, which has no precedent in human history, should lawyers just keep behaving the way we ordinarily behave, counseling clients, drafting legal documents, and litigating cases? Is that good enough? Are we called to do better—to be better?

The severity of climate change effects means that everyone is at risk and everyone should act to combat the threat. While attorneys are not affected more than others, they have the opportunity and, we argue, the responsibility, to confront this existential challenge and help achieve a better future. More than 1.3 million lawyers are licensed to practice in the United States. A fairly small share of these attorneys (about 64,000) identify environmental law as a practice area, according to the Martindale-Hubbell directory. What would happen if a larger share of the nation’s million-plus professional counselors takes constructive action to combat climate disruption?

There is widespread recognition that technology developers, political leaders, educators, scientists, corporate leaders, planners, engineers, and activists have important roles to play in addressing climate change. And yet, the crucial role of lawyers is less widely recognized—even among lawyers themselves.

Ultimately, dramatic reductions in GHG emissions and systematic adaptation to climate change are not likely to occur without new and modified laws. Attorneys are needed to advocate, draft, help implement, and counsel clients about the many laws required at the federal, state, and local level. Legal changes are also needed in private law and governance—including supply chain contracts as well as certification, auditing, labeling, and reporting programs. Business clients and others rely on lawyers for advice on legal compliance, risk reduction, and other decisions that significantly affect the atmosphere’s carbon load. Members of the bar are also in positions of influence in their communities. Leadership by every kind of lawyer is needed—including those in private and corporate practice as well as those in nonprofit organizations, academia, and government.

The obligation to combat climate change is also based on the lawyer’s responsibility for justice. The first sentence of the American Bar Association’s Model Rules of Professional Conduct states that an attorney is “a public citizen having special responsibility for the quality of justice.” The worst effects of climate change are, and will increasingly be, experienced by those with the least resources and thus among those with the greatest need for legal assistance. As the climate crisis develops, the profoundly negative effects of climate disruption will increasingly challenge the stability of American democracy, the administration of justice, and the legal system that lawyers are sworn to uphold.

Long-standing rules of professional responsibility indicate that attorneys have a duty to explain climate change–related risks and opportunities to their clients. The Model Rules of Professional Conduct state that lawyers “shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” All states have adopted this rule. When attorneys conclude that climate change–related risks and opportunities exist, they have a duty to educate their clients about them.

Even though many rightly critique the legal profession as being far too slow in enlisting its members to lead in combating the climate crisis, there are some promising recent signs of progress. In 2019, the ABA’s House of Delegates—its chief policy making body—adopted a resolution urging lawyers “to advise their clients of the risks and opportunities that climate change provides.” The resolution also urges “lawyers to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change.”

The International Bar Association (IBA)—the global counterpart to the ABA—adopted a “Statement on the Climate Crisis” in 2020 that builds on the ABA resolution. The IBA statement “urges lawyers, acting in accordance with their professional conduct rules and the rule of law, to consider . . . taking a climate conscious approach to problems encountered in daily legal practice.” This includes “advising clients of the potential risks, liability, and reputational damage arising from activity that negatively contributes to the climate crisis,” as well as acting “on a pro bono, volunteer or reduced fee basis, for those negatively affected by the climate crisis.”

The IBA statement also “urges lawyers, as influential figures and thought leaders within society, to live responsibly in the face of the climate crisis” by reducing “their environmental footprint” in “everyday actions” and by “supporting positive changes in the workplace, including adoption of more sustainable practices, such as greater reliance on electronic file storage facilities and digital technologies, more energy efficient offices, and more climate-friendly travel and procurement choices.”

Importantly, the ABA resolution and the IBA statement support changes in law. The ABA urges all levels of government as well as the private sector “to recognize their obligation to address climate change and take action” to “reduce U.S. greenhouse gas emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science.” The IBA statement “encourages lawyers to engage with current and future legislative and policymaking efforts to address the climate crisis.”

Likewise, many of the mainstream businesses that attorneys represent are recognizing these realities and urging a better response. For example, in 2019 the Business Roundtable formally recognized that the purpose of corporations includes “embracing sustainable practices across our businesses” and that customers, employees, suppliers, and communities are to be considered essential stakeholders. In 2020, it issued a statement urging deep cuts in U.S. GHG emissions.

All of this suggests that professional and business norms are moving toward recognition that lawyers have a responsibility to combat climate disruption. This growing momentum comes from a variety of sources, including client interest in lawyer advisors who have knowledge and capability relating to climate change and sustainability. In addition, market forces are driving down the costs of clean energy and increasing the need for legal help with clean energy projects. Investors are increasing pressure on corporations to disclose the accelerating risks of climate change, and the public is demanding less-harmful consumer products. The proposals  of Joe Biden and Kamala Harris, who campaigned on the most ambitious plan to address climate change yet put forth by any winning presidential ticket, are adding to this momentum.

Law students and young lawyers, who want to make a contribution and work in law offices or other organizations that value their views and aspirations, are an especially important force for recognition of an attorney’s responsibility. In October, an organization created at Yale, Law Students for Climate Accountability, published a first-of-its-kind scorecard on the role of 100 major U.S. law firms in climate change. It analyzed their litigation, transactional, and lobbying work, and assigned each firm a grade from A to F. These 100 firms, the report concluded, worked on 10 times more cases making climate change worse than they did on cases making it better. Only four firms received an A, while 67 received a D or F.

What, then, can attorneys do more of, or do differently, to combat climate change? The following suggestions are addressed to lawyers as professionals, citizens, family members, and members of various communities. These suggestions are illustrative, not exhaustive. They are intended to be both provocative and constructive.

To start, as part of their duty to clients and society, lawyers should work for better governance. It is impossible to address climate disruption and sustainable development unless we govern effectively at the federal, state, local, and international levels as well as in the private sector. Yet the level of partisan rancor and disagreement, particularly at the federal level and increasingly at the state level, makes it harder to address any significant issue effectively.

Better governance starts with adherence to the rule of law as well as the norms and guardrails that keep the machinery of government, commerce, and our legal system running. These norms include mutual respect, a willingness to seriously consider the views of others, respect for facts and science, civil discourse, and a commitment to the common good.

Lawyers should work toward better modeling of norms like these—in both public and private conversations, directly and explicitly emphasizing the importance of adhering to the rule of law and fact-based decisionmaking. They should maintain civil discourse and identify and even challenge those who reject or undermine foundational norms. 

In addition to practicing and modeling civility, embracing sustainable development would help attorneys think more fully and clearly about legal options for the best course of action. Sustainable development is a lens or framework that lawyers can use to address nearly any issue, including climate disruption. The lens enables an understanding of the varied and cumulative risks and benefits inherent in a course of action that a client proposes. Rather than limiting the analysis to surface economic factors and clear legal risks, this approach goes deeper to help clients avoid costs and realize benefits. These benefits include opportunities to improve quality of life and combat the climate crisis. Thus, it is clearly advisable that lawyers use the imperatives and facts behind sustainable development to educate their clients and organizational superiors.

When lawyers use sustainable development as a lens or framework, they see a wider range of legal tools to address a particular issue, including but not limited to environmental law. Because environmental law is necessarily and primarily regulatory, it tends to focus on what a client can or cannot do—including what permits are required, and what enforcement options are available. Ironically, many have come to believe that environmental regulation unnecessarily limits freedom. To the contrary, by protecting us from risks to health and other negative effects of pollution, environmental law helps secure the freedom of every citizen to live a long and fruitful life. The wider lens thus incorporates environmental law and is therefore additive because it puts more options and tools on the table—which is essential if we are to effectively address climate change. Sustainable development can redirect law to foster economic development along a new conceptual framework that treats development, equity, and the environment as mutually reinforcing rather than oppositional, supplementing, and transforming traditional regulation.

How do lawyers acquire the skill, expertise, and knowledge to communicate sustainability choices to clients? A starting point is understanding what their clients do, what they want, and what they need. Counselors who do this work listen carefully to clients and learn the essentials of their clients’ business and long-term goals and interests. They use their research and analytical skills to identify sustainability practices and principles that serve client needs and interests, flag negative effects as well as potential opportunities, and articulate legal options that incorporate sustainability principles. As time passes, and lawyers accumulate experience on these matters, they often find that new clients seek them out.

Lawyers can exercise such “thought leadership” without having decades of experience. Leadership, says James Strock, the first secretary of California’s Environmental Protection Agency, is about “inspir[ing] others to alter their thoughts and actions, in alignment with an empowering vision.” Many law students and younger lawyers aspire to make a difference in some leadership capacity. In the fall of 2020, more than 300 students signed up for a class called “Lawyers as Leaders” at Georgetown University Law Center—the most popular class in the school’s 150-year history.

Attorneys must seriously consider working for, and supporting, legal efforts to reduce GHG emissions and adapt to climate change in their personal and professional capacities. One opportunity grows out of the comprehensive description and analysis of some 1,500 recommended legal tools to reduce GHG emissions in Legal Pathways to Deep Decarbonization in the United States, which was published by ELI Press in 2019, with Michael B. Gerrard and John C. Dernbach as editors. Federal, state, and local governments, and the private sector, need to adopt and implement such tools if we are to reduce GHG emissions to net zero or below by 2050.

The next stage of this project is drafting these recommendations as model laws that can be proposed, adopted, and implemented in various jurisdictions. More than 20 law firms as well as individual attorneys, law professors, and others are participating in this project on a pro bono basis. These model laws, in turn, are posted (with other resources) on a website created for that purpose, https://lpdd.org.

A striking aspect of this project is the participation of lawyers at all stages of their careers. Many retired attorneys, some of whom have not previously worked in environmental or energy law, including a judge and a recording industry lawyer, help manage this project. First-year associates at law firms also participate, helping to draft model laws pro bono. The project is an excellent example of an opportunity for lawyers to establish their careers along the path of thought leadership in addressing climate change. At some law schools, including Widener Commonwealth, Denver, and Vermont, students can take classes in which they draft model climate change and sustainability laws for local and state governments.

In addition to drafting model laws, another opportunity to make a difference is getting these or other proposed laws adopted. The Legal Pathways project is active in this as well. This work involves outreach to interested organizations, individuals, legislators, legislative staff, and media. And while Congress is obviously important, so are state legislatures and local governments. In fact, local government is a particularly important avenue for combating climate change and enhancing sustainability because local governments deal with the increasing number of climate-change–induced severe weather events; the need to repurpose commercial property as more people work and shop from home; and growing demand for walkable downtowns, mixed-use neighborhoods, and charging infrastructure for electric vehicles.

An important and sensitive issue is whether, when, and how lawyers should make the case for such actions in moral or ethical terms. To be sure, there are risks of an initial adverse reaction; clients and organizational superiors may have different views. Still, attorneys who listen carefully to their clients or superiors, and who develop good and trusting relationships with them, can carry out their duty to advise by identifying and connecting with specific values to help them maximize enlightened self-interest. Counselors who limit their arguments to law or include only economic, technological, or scientific analysis ignore the persuasive power of widely held ethical and moral norms. Principles such as intergenerational equity that are at the core of sustainable development have dramatic emotional and intellectual power when taken seriously. Pope Francis I explains intergenerational equity in a way that resonates within the Catholic religion as well as other faiths and philosophical traditions:

“Once we start to think about the kind of world we are leaving to future generations, we look at things differently,” the pontiff says. “We realize that the world is a gift which we have freely received and must share with others. Since the world has been given to us, we can no longer view reality in a purely utilitarian way, in which efficiency and productivity are entirely geared to our individual benefit.”

Other widely held values include the injunction to do no harm. Professor Victor Flatt, who teaches at the University of Houston Law Center, summarizes the moral norm underlying environmental law in this way: “no person should be allowed to harm another person for profit or benefit.” Additional powerful norms—many held by some traditional conservatives—include national security, conservation, prudent stewardship, accountability for the consequences of one’s actions, and the precautionary approach. Separately and together, they can also help pave the way for political consensus.

Lawyers should consider building such principles into their explanation of various climate change options to clients, and in their advocacy on behalf of clients as well as to their organizational superiors. Again, context and audience matter, and sensitivity and mutual trust are required. Ultimately, clients have the final word, but many care about these principles. (For example, they care deeply about their own children.) Decisions that reduce GHG emissions and foster sustainability are more likely when decisionmakers understand the relationship between their choices and the principles they hold close.

When members of the bar engage politically, they should include people with different perspectives, building alliances based on a shared understanding of the common good. Sustainable development should be capable of bridging the partisan divide, and there is evidence that it is already working, even where the term is not used. Because sustainable development seeks to further environmental protection, equity, and economic development at the same time, it requires the active and constructive participation of business—something that many in the business community recognize and appreciate. In fact, much environmental lawmaking over the past several decades has been directed at environmentally sustainable economic development. Statutes that require or encourage increased use of clean energy can be understood as climate change laws, but they can also be understood as economic development laws. These laws not only foster business growth, they create well-paying jobs.

Today, lawyers must also “walk the talk” on reduced GHG emissions and sustainable development. It is one thing to persuade clients and others to reduce their GHG emissions, and yet it is quite another to do it in one’s own office and at home. Such actions have both persuasive power and reputational benefit.

Attorneys, law firms, businesses, and organizations of all types should consider participating in one or more of the many efforts for walking the talk that already exist. For example, the Law Firm Sustainability Network (LFSN), a nonprofit organization made up of firms as well as legal departments of major corporations, has launched the American Legal Industry Sustainability Standards, “a self-assessment tool that measures law firms’ implementation of environmentally friendly practices that promote energy efficiency, conservation of energy and resources, recycling, and related measures.” The organization also fosters information sharing on best practices. 

The ABA Section of Environment, Energy, and Resources has partnered with LFSN to foster awareness of the standards and programs. The California Lawyers Association offers a set of model law office sustainability guidelines for reduced paper and energy use as well as purchase of more sustainable products and services. In 2018, Lawyers for a Sustainable Economy, a partnership among 14 large private firms, Stanford Law School, and Stanford’s Precourt Institute for Energy, “committed to delivering $23 million worth of free legal services by the end of 2020 to advance sustainability in energy, transportation, and land use.” For lawyers, walking the talk also means making similar efforts at home and through other organizations, and considering climate change and sustainable development in supporting political candidates and community initiatives.

Bar associations can do more to advance this work through resolutions, educational programming, organizing, and advocacy—at the international, national, state, and local levels. In 2009, the Oregon State Bar Association created the Sustainable Future Section—“the first state bar association section devoted to the relationship between sustainability and law.” Organizing and advocacy to accelerate the transition to a decarbonized and sustainable world would be particularly valuable leadership contributions.

Finally, lawyers should spread the word and organize others in ways appropriate to their circumstances. The challenges of climate change and sustainability are considerable, and so are the opportunities. But there is a finite and rapidly closing window for effectively addressing these issues. Like all professionals and all people, attorneys have a responsibility to preserve our planet and our quality of life. In our specific professional roles and, more broadly, as lawyers, we have a special responsibility for the quality of justice and the public good. We need to talk about these issues and how to address them, and encourage other lawyers of all races and backgrounds to participate. We also need to share legal tools and approaches that work, and support each other in doing so. It is not enough to do these things in our work or at home; we should step up our engagement with others.

On December 24, 1968, in lunar orbit, Apollo 8 astronaut William Anders photographed the Earth roughly 240,000 miles away. The picture, dubbed “Earthrise,” shows the grey lifeless Moon in the foreground with the Earth above and behind it—blue and green and alive and surrounded by dark space. More than 50 years later, Earth is still the only place we know where life exists. Notwithstanding remarkable success in implementing environmental laws, we face an existential threat from climate disruption. What will we as lawyers do, or do more of, or do differently, in response?

This article is reprinted with permission from the March/April issue of the Environmental Law Institute’s Environmental Forum

Entity:
Topic:

John C. Dernbach, Irma Russell, and Matt Bogoshian

____

John C. Dernbach is the Commonwealth Professor of Environmental Law and Sustainability at Widener University. Irma Russell is the Edward A. Smith/Missouri Endowed Chair at the University of Missouri-Kansas City School of Law. Matt Bogoshian is an adjunct professor of sustainability law at the University of California, Davis, School of Law.