Lawyers and bar associations have a critical role to play in activating decarbonization and adaptation, and creating a more climate-conscious legal practice. The American Bar Association (ABA) has been working with the International Bar Association (IBA), the Brazilian Bar Association (OAB), and the Law Society of England and Wales (LSEW) over the past two years to discuss the role of lawyers in combatting climate change and to share best practices. The authors of this article represented these organizations in this work. We prepared joint programming at the 27th annual meeting of the Conference of the Parties to the U.N. Climate Change Convention (COP27) in Sharm el-Sheikh, Egypt, this past November. We are continuing to collaborate in anticipation of COP28 in Dubai, United Arab Emirates (Nov. 30–Dec. 12, 2023). This article will explain the need for climate-conscious law practice and describe what bar associations and law societies are already doing and plan to do to foster more climate-conscious law practice.
Climate change is no longer an issue of concern only to environmental and energy lawyers. Carbon dioxide levels in the atmosphere are higher now than they have been in four million years, causing or contributing to wildfires, floods, drought, and extreme heat waves. In these and many other ways, the effects of climate change are altering the background circumstances in many fields of law (e.g., real estate, land use, insurance, immigration, corporate governance, and employment law). Because these effects tend to fall most heavily on the poor and people of color, civil rights practitioners are filing a growing number of climate justice cases. Greenhouse gas (GHG) emissions now raise a host of legal issues and risks related not only to environmental and energy law, but also securities disclosure, torts, finance, supply chain contracting, and consumer fraud/greenwashing. Climate change also provides opportunities for many clients, including landowners able to sell or lease their land for wind turbines or solar generation; companies that provide particular goods or services that reduce GHG emissions or help adapt to climate change; and the wide variety of clients interested in tax benefits from the Inflation Reduction Act of 2022 (IRA) and the Infrastructure Investment and Jobs Act of 2021 (IIJA).
All of these activities are occurring in the broader framework of the Paris Agreement of 2015, which is intended to reduce global GHG emissions to net zero or below by the second half of this century. Under the Paris Agreement, each country formally commits every five years to reducing its GHG emissions by an amount it specifies, and to strengthen that commitment for each succeeding five-year period. For example, the most recent commitment by the United States, made in 2021, is to an “economy-wide target of reducing its net GHG emissions by 50–52 percent below 2005 levels in 2030.” As part of that commitment, the United States plans to “reach 100 percent carbon pollution-free electricity by 2035.” U.N. Framework Convention on Climate Change, Nationally Determined Contribution (NDC) Registry, United States, First NDC (After Rejoining the Paris Agreement) (2021). The Biden administration also has set a goal of achieving a “net zero emissions economy by no later than 2050.” Executive Order 14,057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, 86 Fed. Reg. 70,935 (Dec. 13, 2021). The attempt to reach these commitments will require not only scientific, technological, and engineering expertise; it will also require considerable legal expertise.
“You are all climate lawyers now, whether you want to be or not,” John Kerry, U.S. Special Presidential Envoy for Climate, advised attendees at the ABA’s 2021 Annual Meeting, before then describing the wide variety of legal work that climate change entails:
We will need lawyers to aid those displaced by climate fueled storms, and nonprofit lawyers to assist individuals and communities after devastating fires. There’ll be local attorneys working tirelessly to recover the soaring cost of adaptation and disaster recovery that would empty public coffers. There are the bankruptcy lawyers assessing the infrastructure risks to their clients and advising on safer, wiser planning. Lawyers will be crucial to all aspects of the multiple transactions necessary to expedite the energy transition and innovative strategies for deep decarbonization ahead of us. There’ll be questions of financing and construction contracting, land use, procurement. Some of you will write the laws that will drive these transformative interventions, others of you will administer and enforce them, and some of you may negotiate the international arrangements that helped the world address the climate crisis in all its manifestations.
Am. Bar Ass’n, Kerry to ABA: “You’re All Climate Lawyers Now” (Aug. 11, 2021).
Brian Preston, Chief Judge of the Land and Environment Court of New South Wales, Australia, explains climate-conscious lawyering in this way:
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.
Brian J. Preston, Climate Conscious Lawyering, 94 Australian L.J. 51, 52 (2021).
While some lawyers are already engaged in climate-conscious lawyering, to at least some degree, many are not. Energy and environmental lawyers tend to be more climate-conscious than those in other practice areas. As a result, many projects and activities move ahead with little or no serious attention to growing climate risks and little or no attention to opportunities provided by climate change.
It is increasingly clear that the private sector has a substantial role to play in climate change response, not only by complying with existing laws, but by taking actions to reduce their GHG emissions to levels not now required. See Michael P. Vandenbergh & Jonathan M. Gilligan, Beyond Politics: The Private Governance Response to Climate Change (2017). Much of the discussion about private environmental governance focuses on business and industry. But lawyers are equally important actors because of the role that their clients play (positively and negatively) in climate change, and the impact their advice and legal assistance can have.
"You are all climate lawyers now, whether you want to be or not.”
That point has been most visibly made in the United States by a project led by law students from around the country. In 2022, Law Students for Climate Accountability, an organization whose membership includes students at Harvard, NYU, and UCLA law schools, published its third 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. Only two firms received an “A,” while 74 received a “D” or “F.” It concluded that “91 of the top 100 firms undertook work that worsened climate change.” Press Release, Law Students for Climate Accountability, Top Law Firms Rake in Billions While Worsening the Climate Crisis (2022).
In the United Kingdom (UK), more than 250 legal professionals, from junior lawyers to King’s Counsel and senior partners, signed an open letter in 2022 stating that “[l]awyers contribute to the climate crisis” and that “[l]awyers must be part of the solution.” Lawyers for 1.5˚C – Humanity’s Lifeline (2022). In March of this year, 120 UK lawyers signed a declaration vowing to “withhold [their] services in respect of supporting new fossil fuel projects and action against climate protesters exercising their right of peaceful protest.” Damien Gayle, Top Lawyers Defy Bar to Declare They Will Not Prosecute Peaceful Climate Protesters, The Guardian, Mar. 24, 2023.
A report issued at COP27 flagged the importance of lawyers in the effort to reduce GHG emissions. Nonstate actors, it said, specifically including lawyers, should work with their customers and “peers to transform the economic sectors in which they operate.” U.N. High-Level Expert Group on the Net Zero Emissions Commitments of Non-State Entities, Integrity Matters: Net Zero Commitments by Businesses, Financial Institutions, Cities and Regions 25 (2022). One year earlier, at COP26 in Glasgow, experts at Cambridge University and elsewhere called for a rapid tenfold increase in the number of experts engaged in climate law and governance work. Press Release, Centre for International Sustainable Development Law, Leading Experts at COP26 Commit to Scale-Up Climate Law & Governance Capacity Worldwide TENFOLD from 600 to 6,000 by 2024 (Nov. 9, 2021).
Evidence of the need for climate-conscious lawyering can also be found in the growing number of new lawyers’ organizations that focus specifically on climate change.
Evidence of the need for climate-conscious lawyering can also be found in the growing number of new lawyers’ organizations that focus specifically on climate change. The UK-based Chancery Lane Project, for example, is founded on the premise that a great many private contracts, including but not limited to supply chain contracts, can increase or decrease GHG emissions, depending on how they are written. With pro bono assistance from hundreds of lawyers, the project has created a Net Zero Toolkit, a large collection of contract clauses that can be incorporated into standard law firm contracts and other commercial agreements, as well as a “collection of tools that align contractual drafting with net zero.” Chancery Lane Project, Net Zero Toolkit.
Another organization, the Net Zero Lawyers Alliance, has more than 30 member law firms. These firms “commit to: (1) reducing operational emissions by at least 50% by 2030 from 2019 levels; (2) contributing pro bono time to projects to achieve climate objectives; (3) building capacity among all their lawyers; and (4) providing net zero aligned advice.” Net Zero Lawyers Alliance, Our Work. Other lawyer organizations dedicated to climate include Lawyers for Climate Justice (Canada) and Lawyers for Climate Action (New Zealand).
The need for climate-conscious lawyering will only grow in the years ahead, as climate change intensifies and public and private demand for effective response grows. Much of this pressure is coming with the explosive growth in voluntary and mandatory climate disclosure standards, particularly in Europe. These standards include those developed by the Task Force on Climate-Related Financial Disclosures, the European Financial Reporting Advisory Group, International Sustainability Standards Board, and the Global Reporting Initiative. They also include those developed by the European Union, including the European Union’s Corporate Sustainability Reporting Directive (CSRD) (EU/2022/2464), the EU Taxonomy Regulation (EU/2019/2088), and the EU Non-Financial Reporting Directive (NFRD) (EU/2019/2088). In addition, the U.S. Securities and Exchange Commission may also require broader climate disclosures for publicly traded entities that make material statements related to their GHG reduction strategies. The accelerating growth of environment, social, and governance (ESG) metrics to measure corporate performance and risk management will require lawyers to understand their clients’ climate commitments and their obligations if they seek funding under the IRA and IIJA. Still, lawyers will need to balance the demand for climate-conscious legal work with their long-standing obligations to zealously represent their clients’ interests and respond to client directions.
Bar associations and law societies play an enormous role in setting ethical and professional norms for law schools and lawyers. The ABA Model Rules of Professional Conduct provide models for state ethical rules; all states have adopted the template of these rules, although some states have modified them. A student who attends and graduates from an ABA-accredited law school has met the education requirement for the bar examination in any state. In the United Kingdom, LSEW is the professional membership association for all solicitors, who are regulated by the Solicitors Regulation Authority (SRA). In Brazil, registration with the OAB is required for the practice of law, and the OAB is responsible for the admission and discipline of lawyers. More broadly, the IBA is an organization comprising the world’s bar associations; its membership extends to around 190 bars globally.
The ABA, IBA, LSEW, and OAB are using their loosely organized coalition to help create pathways to climate-conscious lawyering. Here is a brief description of what each organization has done.
The ABA House of Delegates, the ABA’s policymaking body, adopted resolutions urging action on climate change in 2008 and 2019. It also adopted resolutions in support of sustainable development, the overall framework for addressing climate change, in 1991, 2003, and 2013. The 2019 climate change resolution urges all levels of government as well as the private sector “to recognize their obligation to address climate change and take action” to “[r]educe U.S. GHG emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science.” In addition, it urges lawyers “to advise their clients of the risks and opportunities that climate change provides.” It also “urges lawyers to engage in pro bono activities to aid efforts to reduce GHG emissions and adapt to climate change.” ABA House of Delegates, Resolution 111 (2019).
The ABA has worked to implement this resolution by, among other things, creating a Climate Change Task Force to guide ABA climate efforts and advise the ABA president of key climate issues, and conducting educational programming on climate change through the Climate Change, Sustainable Development, and Ecosystems Committee. The ABA Section on Environment, Energy and Resources (SEER) has partnered with the Model Laws for Deep Decarbonization project (cosponsored by Columbia Law School and Widener Commonwealth Law School) to provide a climate-related pro bono opportunity for lawyers: ABA SEER, Model Legislation Drafting, Peer Review, and Outreach Opportunities. Under that partnership, lawyers and law firms can draft model laws to reduce GHG emissions, and these laws are subsequently posted on the project’s website, Model Laws for Deep Decarbonization in the United States.
Two books recently published by the ABA also further the resolution. The first is Sustainability Essentials: A Leadership Guide for Lawyers, by John Dernbach, Matt Bogoshian, and Irma Russell, which is a short practical guide for lawyers and law students who would like to build sustainability-conscious lawyering (which, of course, includes climate change) into their law practice. A premise of the book, which is based in significant part on the experience of many practicing lawyers, is that nearly any lawyer can engage in sustainability-conscious work, in nearly any practice area. The other book is Global Climate Change and U.S. Law, edited by Michael B. Gerrard, Jody Freeman, and Michael Burger (3rd ed., 2023), which is a comprehensive review and analysis of U.S. law relating to climate change.
The IBA issued a “Climate Crisis Statement” 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 office infrastructure and more climate-friendly travel and procurement choices.” IBA, Climate Crisis Statement (2020).
The IBA has been working for over a decade to remove obstacles to national-level litigation against governments to force them to act on climate change. That effort culminated in 2020 with the publication of a proposed model statute. Int’l Bar Ass’n, Model Statute for Proceedings Challenging Government Failure to Act on Climate Change (2020).
LSEW adopted a similar resolution in 2021, but it goes beyond the ABA resolution and the IBA statement by committing to “provide guidance to solicitors on how, when approaching any matter arising in the course of legal practice, to take into account the likely impact of that matter upon the climate crisis in a way which is compatible with their professional duties and the administration of justice.” The LSEW resolution also commits the Law Society to “develop, disseminate and publicize educational tools and resources to support solicitors to incorporate into their daily practice advice on the impacts of climate change, and prepare for the likely impacts of climate change upon their daily practice. . . .” Law Soc’y of England & Wales, Climate Change Resolution (2021).
Following that resolution, LSEW has published climate change guidance for all solicitors and law firms. Law Soc’y of England & Wales, Guidance on the Impact of Climate Change on Solicitors (Apr. 2023). The Law Society is not the regulatory body for solicitors in England and Wales, but it does produce guidance and practice notes for its members that outline best practice for all solicitors regulated by the SRA. The climate change guidance covers the duty of care solicitors may have in advising on climate risks, “advised emissions” (emissions associated with matters on which solicitors advise, also known as “scope X”), the ethical implications when advising a client in the context of climate change, and greenwashing implications for law firms. In addition, the Bar Council of England and Wales, which is the professional organization for barristers, is drafting somewhat comparable guidance for barristers.
In 2022, the OAB began developing a program, “OAB Carbono Zero, For the Right to a Future,” which would promote a national program of decarbonization of the legal profession. Among other things, this program would provide guidance to lawyers who are interested in working toward zero emissions. OAB is also developing a recommendation about the role of law organizations and lawyers in fighting climate change, which still must be approved by the OAB’s Federal Council to be in force. The proposal emphasizes, among other things, the ethical role of lawyers to inform their clients of the legal risks and responsibilities that may arise from actions or omissions that contribute negatively to the climate crisis.
The International Bar Association has been working for over a decade to remove obstacles to national-level litigation against governments to force them to act on climate change.
At COP27, we collectively hosted climate events on the role of lawyers in addressing climate change. Our official session was the only session at the conference site hosted by bar associations. The presidents of each organization, including Deborah Enix-Ross of the ABA, gave recorded remarks at another of our co-hosted events. The importance of this work was underscored by Steven Gray, an attorney at DLA Piper in London, who said during another of our events at COP27 that “the law profession is among the last of the professional organizations to the table on climate change, and it has among the most to contribute.”
This collaboration resulted in commitments to learn from each other, encourage bar associations in other countries to adopt similar resolutions, and provide assistance on climate-conscious lawyering across our respective membership bases. As a consequence, we have built a foundation for a stronger presence at COP28 by lawyers and their national bar associations in Dubai in late 2023.
Obviously, a great deal of work remains to be done—by bar associations, law schools, law firms and other law organizations, and lawyers. A starting point for any bar association is to adopt a resolution or commitment similar to those described above. Such resolutions are not magic-bullet solutions, but they provide a foundation for further work by the bar association on climate-conscious lawyering. A substantial increase in the number of law associations around the world that have adopted such resolutions or statements would be of considerable importance.
Law schools also need to do more to introduce climate change into their curricula for non-environmental classes, including property, insurance, and commercial transactions.
Educational programming for lawyers by bar associations is also essential. Such programming can be tailored to particular jurisdictions, topics, and areas of practice. Law schools also need to do more to introduce climate change into their curricula for non-environmental classes, including property, insurance, and commercial transactions.
Lawyers who are not already engaged in this work should learn what their peers are doing, how climate change is affecting their clients, what their clients’ competitors are doing concerning climate change, and what risks and opportunities climate change presents their clients. They should then advise their clients to find ways to address these risks and opportunities. (For more, see Sustainability Essentials, noted above.) Lawyers need to understand that climate change may raise issues about core competency and duty of care to clients.
Finally, collaboration and information sharing among law associations, including at COP28 in Dubai, needs to continue, and in a broadened and intensified manner. It is essential for bar associations to closely analyze the best practices of their peers and other law organizations on climate-conscious lawyering and consider whether work by others should be adapted to their respective jurisdictions. The LSEW guidance to solicitors as well as the work of the Chancery Lane Project are two examples where the pollination of ideas for new legal standards may occur.
The ultimate objective of this work is to have as many lawyers as possible actively engaged in climate-conscious lawyering. What would happen if a larger share of the 1.3 million lawyers licensed to practice law in the United States engaged in climate-conscious lawyering? What would happen if a larger share of lawyers in jurisdictions everywhere did the same? The short answer is that we would provide more reliable legal advice and help our clients get to net zero faster, with enormous economic, environmental, and social benefits. Our collective efforts can provide a brighter and more sustainable future. The legal profession is the common thread that binds us all, and the time for practical implementation of climate-conscious norms is now.
