A matter of justice: a lawyer’s role in the climate change debate

He was not suggesting that lawyers should predict the impact of rising greenhouse gas emissions.  That task will still fall to the scientists.  But if a new approach to framing the issue is genuinely needed, how might lawyers make an effective contribution?

Society addresses difficult problems through its laws and whole forests have been felled to publish the rules on climate change.  The fairness of those rules is a fundamental issue and lawyers have a key role in drafting, upholding and explaining them.  The public may not be interested in gigatonnes per annum of carbon, but an interest in fairness is widespread.

To put fairness in context, Kofi Annan’s Global Humanitarian Fund reported in 2009 that global warming was already causing 300,000 deaths and $125 billion of economic loss per year.^[1]  99% of those deaths and 90% of the losses occurred in developing countries.  The victims who suffer the greatest harm from drought and flooding are, therefore, those least able to cope.  They are also least responsible for emissions of greenhouse gases.  And yet they struggle to be heard at the United Nations, where negotiations for another new treaty to apportion responsibility for climate change have recently restarted.

Climate change is then a justice issue that demands lawyers’ immediate attention, not just a hypothetical problem for a distant future.  International rules on emissions cuts, climate change finance and the attribution of responsibility are being decided today, which will have a huge impact on the lives of billions of people for decades to come.

Some are suspicious of such claims.  They doubt the IPCC’s conclusion that evidence for global warming is ‘unequivocal’ and that the cause is ‘very likely” to be human activity.^[2]  They doubt Lord Stern’s description of climate change as the greatest and widest-ranging market failure ever seen.^[3]  Lawyers, with their appetite for argument should, of course, respect differences of opinion.

They will also, however, be interested in the background detail.  The greenhouse gas effect has been accepted science for well over a century.  It keeps the planet warm enough for life.  What the scientists debate is the probable consequences of rising emissions; the relative likelihood of a range of temperature rises and their likely effects.  This debate is in many respects about the balancing of probabilities and what is reasonably foreseeable, a concept familiar to every lawyer and law student.

It is fair to say that a broad consensus among mainstream scientists already exists which gives us an unprecedented, evidence-based warning about the reasonably foreseeable consequences of continued fossil fuel dependency.  We can see the impact on the world’s poorest people right now and issues of both moral and legal negligence may await if we ignore it.  Lawyers wanting to present this as an issue of justice will find many groups and organisations to support them: among them A4ID, with its Climate Change Knowledge Group examining both the law and the science; the Legal Response Initiative,^[4]supporting developing countries in the UNFCCC talks; and the ICE Coalition,^[5] a non-profit promoting an international environmental court.  The debate about climate change will always be deeply rooted in hard science, and lawyers are well positioned to highlight the issues of justice and fairness which result from that fact.

Nick Flynn is an environmental lawyer at international firm Weil, Gotshal & Manges LLP where he is head of the firm’s London pro bono programme. Nick sits on A4ID’s Board of Trustees. He is founder and chairman of the Legal Response Initiative, a charity providing legal support to developing countries participating in the UN climate change negotiation, and a director of the ICE Coalition.