By Richard Bater
Law, and therefore legal services, will be indispensable to achieving a just transition to a low-carbon economy, as well as to ensuring that societies are resilient in the face of future climate-related risk. This renders the legal profession an essential actor, be it through crafting clear and robust legislation, ensuring compliance, or upholding constitutional rights.
New research by Acclimatise, that examines the legal sector’s demand for climate services, finds that whilst climate change has ranked very low on the sector’s agenda this has started to change during the last three years. This is partly attributable to new legislation – which increased 20-fold during the 20 years to 2017 to reach 1,200 laws – but is also due to the increasing recognition on the part of lawyers and their clients that climate change means material risk. In future, individuals and organisations will increasingly solicit advice as to what their legal duties are vis-à-vis climate change in respect of existing (and forthcoming) laws and established legal doctrines, as well as to be shielded from climate-related litigation.
Climate change is cross-cutting and raises implications – to a greater or lesser degree – across the majority of areas of legal practice, from professional negligence, to product defect, to directors’ duties, to climate disclosure, to constitutional rights. Legal risks can arise, for example, where climate change results in organisations breaching existing compliance requirements (e.g. water quality standards). With the reinterpretation of common law doctrines in light of climate change, failure to become adequately informed about – and manage – climate-related risk could lead directors to be in breach of directors’ duties. As Jason Betts, Partner at Herbert Smith Freehills, has observed, in order to mitigate litigation risk “companies across all sectors must ensure that the impact of climate change events – both those they may contribute to and those that might affect their businesses and profitability – are risk-assessed, costed and, where material, disclosed to the market.”
Emerging disclosure arrangements – such as those promoted by the Taskforce on Climate-Related Financial Disclosures (TCFD) – are putting climate-related risk on the boardroom agenda. By rendering climate risk a material issue that must be dealt with by organisations today, such initiatives help to bring organisational decision making on climate change into line with the timeframes within which action must be taken to limit the magnitude and risks of climate change.
Climate change adaptation, from a legal perspective, requires a highly collaborative approach; the bringing together of a range of legal skills and expertise.
– Mark Baker-Jones
Accurately disclosing climate-related risks – and proving disclosure breaches – is just one area that can require multi-disciplinary expertise, spanning climate and legal services. Indeed, as reflected by Mark Baker-Jones, more broadly “climate change adaptation, from a legal perspective, requires a highly collaborative approach; the bringing together of a range of legal skills and expertise.” Underdevelopment of tailored climate services partly explains the hesitation of regulators to impose more stringent requirements: if regulatory provisions step too far beyond what is able to be reliably measured in a comparable way, regulators cannot be certain that regulations are being complied with and producing the change intended. Improving the robustness of harmonised and comparable climate risk metrics is essential. As Baker-Jones has also stated, “what is missing is the translation of that [climate] knowledge into practical advice and guidelines that those leading the private sector can understand and apply…Whether it is redefining the point at which liability is incurred or introducing new levels of liability where before there appeared to be none, climate change law is driving a reinterpretation of some fundamental principles of duty and responsibility.”
The study identifies several key ways in which climate services can better address the sector’s needs:
- Develop the science of climate attribution, impact modelling, and integrated socio-economic climate impact models (including counter-factual scenario modelling);
- Rigour, resolution, and comparability are the three highest ranking criteria of climate-related information;
- Increase dialogue between legal services, climate scientists, and climate services;
- Communicate climate knowledge in ways intelligible to legal audiences, including how findings correspond with legal standards of proof;
- Develop a quality assurance regime for climate services providers.
Where climate science is evolving rapidly, there needs to be more accessible regularly-updated, spatially-nuanced communication of the state of climate (attribution) science that summarises the ‘consensus’ view to legal and other audiences in mind. A thorough record of this could become a touchstone for what is considered – and what was considered – ‘reasonably foreseeable’ at a given point in time, both guiding decision making in the present and enabling future accountability for harm.
The case study was led by Acclimatise under the MArket Research for a Climate Services Observatory (MARCO) programme. MARCO, a 2-year project coordinated by European Climate-KIC, hopes that research such as this will help to remove the barriers to the growth of the climate services industry across Europe.
The MARCO project has received funding from the European Union’s Horizon 2020 Research and Innovation Program under Grant Agreement 730272.