Lawyers for Life

A legal view on the climate crisis

On Saturday 12th June, some of Somerville’s finest sustainability experts and academic minds came together for our Climate Change Symposium. During the event’s second panel, lawyers Farhana Yamin (1982, PPE) and Clare Hatcher (1974, History) shared their views on the trials and tribulations of addressing the climate crisis through the law, informed by their decades of experience. Here we share two abridged excerpts.

One of the most significant developments has been in establishing legal liability when pursuing damages claims against private companies. ‘Lawyers can be a force for good’

Clare Hatcher, Consultant at Clyde and Co. and Vice President of the CLLS Energy Committee

David Miller has described lawyers as like rhinoceroses: “thick-skinned, short-sighted, and always ready to charge.” I hope I can persuade you otherwise; that lawyers can be a force for good by helping to achieve net-zero carbon emissions.

Since the 1970s, there has been a tsunami of growth in the number of climate litigation legal cases worldwide targeting both governments and corporates. For example, activists successfully challenged the German government’s climate policies on human rights grounds earlier this year. The court’s groundbreaking ruling held that, by enacting policies and targets that effectively placed the burden of radical emissions cuts on future generations, and that, given both climate change and the measures required to cut emissions have an impact on virtually every type of freedom, the rights of future generations had been compromised.

One of the most significant developments has been in establishing legal liability when pursuing damages claims against private companies. The claimant must prove a causal connection between the actions of a corporate entity and an event which results in loss. Proving this link has remained elusive, but, thanks to modern climate models and methodologies, it is now possible to connect the probability of a weather-related event to human activity and quantify the contribution made by greenhouse gas emissions. For instance, one case currently on appeal against German energy multinational RWE concerns a Peruvian farmer whose village was flooded by a melting glacier. As the damages were caused by carbon emissions, and RWE caused a portion of the emissions, the plaintiffs seek to establish that RWE must pay a percentage of the damages.

As well as litigation, lawyers can help in their function of creating contracts and legislation. One initiative is The Chancery Lane Project, a collaborative effort between lawyers around the globe to develop an open source data bank of new, climate-conscious legal clauses which anyone can draw on. The provisions range from requiring suppliers to provide sustainable products to facility agreements conditional on emissions reductions. My firm is a participating member and we will be working on a full study of clauses for the energy sector in advance of COP26.

Mahatma Gandhi once said that ‘the future depends on what we do today.’ There is a huge amount that lawyers can do right now to help build a better, more climate secure future.

‘We need every person to step up’

Farhana Yamin, Climate Lawyer, Paris Convention Negotiator for the Marshall Islands, Extinction Rebellion Activist

I have been a climate lawyer for 30 years. Shortly after leaving Somerville, I qualified as a solicitor and then went into supporting the small island states during the negotiation of the Climate Change Convention, which had just begun in 1991, by providing advice and assistance. Sometimes that assistanace was in legal terms; but sometimes it was simply getting ministers to the right place in the labyrinth of UN buildings, holding their briefcase, printing the papers we had written for them, or getting them to their media interviews. I did whatever was needed to support their advocacy of their right to survival.

It would seem that there could be nothing more global than the planet’s atmosphere, but not all contributions to the crisis are equal. In fact, the countries that are producing the fewest emissions are often the most vulnerable to their effects, and face issues such as water scarcity, rising sea levels and food scarcity caused by desertification and declining fish stocks in warming oceans. Meanwhile, the richest 10% of the world’s population contribute 50% of our total consumption emissions. Food, fashion, flights, transport, heating: all of these have a huge impact which is getting worse by the day. What can we do? Everyone has to add the word ‘activist’ to their CV. It’s no longer enough for any of us, in any profession, to leave it to the lawyers or the economists, because we haven’t been able to do it by ourselves. I’ve been at this for three decades. I’ve negotiated three different international treaties which launched an enormous amount of action, but there has been frustratingly little progress. Politicians are excellent at delaying action, fossil fuel companies continue to collect subsidies – the UK is even considering opening new oilfields in the North Sea. We can’t get this done solely through the courts, or through parliament, or through the UN or even through COP26. We need a whole society approach.

Every academic discipline, every profession, and every person needs to step up to the situation we are in. We have the means to thrive and we can make the shift, but it must happen now. There is a lot of ground to make up, and precious little time.

It’s no longer enough to leave it to the lawyers or the economists because we haven’t been able to do it by ourselves.

You can watch a recording of both parts of the Climate Change Symposium, featuring Somerville’s climate change scientists, activists and policy-makers, by scanning the QR codes below.