Climate change continues to be the largest existential crisis facing us today, with every industry having a role to play in mitigating its long term effects, including the UK legal sector.
In October 2021, The Law Society published its Climate Change Resolution, encouraging firms to acknowledge the 'essential role of the legal profession in strengthening and upholding the rule of law ... including for advancing efforts which mitigate the climate crisis and strengthen climate justice'. As environmental law and legislation must necessarily occasion combating climate change over the long term, the UK legal sector has a crucial role in ensuring that individuals, governments and cooperatives do not cause further harm to the environment and, simultaneously, to assist clients in adopting environmentally-friendly initiatives that align with their goals.
Our legal system is fundamentally based upon the notion of drawing from the past, safely maintaining our rights and protections by looking at what has been done and said before. However, the lack of environmental safeguards in most contracts, despite the climate emergency coming to the fore within the last few years, illustrates how, in some respects, our legal system is not yet future-proof or fit for the purpose of protecting our planet. There is a need for our laws to develop, and for our understanding of ethics in law, to respond to the future, not the past.
While it is obvious that the new laws introduced in the Environment Act 2021 will not be enough to halt the continuous harm and pollution of our planet, the act does introduce some welcome initiatives.
Conservation covenant agreements, which enable a landowner to enter into a voluntary, but legally binding, contract with a responsible body to preserve wildlife, habitat or heritage assets, are just one such initiative and a prime example of how green contracts can create positive and lasting change.
There are also ample opportunities for law firms to help clients meet their own net-zero targets by ensuring that tenders and supplier contracts include social value commitments and that agreements are approached from the perspective of how they stand to benefit the environment – ‘greening’ contracts.
In terms of creating widespread, lasting change, a prevalence of tenders that depend on meeting environmental commitments could encourage more companies to become more environmentally-friendly and seek to reduce their carbon emissions.
With the ongoing generation of harmful carbon emissions gaining added scrutiny, a potential supplier’s lack of green credentials may negatively impact a client’s reputation - making the inclusion of social value qualifiers in tenders increasingly important. To protect clients and their reputations, green clauses can require net-zero standards for suppliers, helping clients to reduce their Scope 3 emissions, while agreements can use incentive-based models to ensure sustainability objectives are adhered to and maintained, or late payment mechanisms to support green causes or off-setting.
A question of ethics
Increased awareness of the climate emergency has also brought ethics to the fore. A good example is the recent trial of six Extinction Rebellion activists, charged with criminal damage to the Shell HQ building in Waterloo, London - in a landmark decision, all six activists were acquitted by a jury.
While it should be noted that the activists were acquitted under a valid legal defence, this was a particularly interesting case in terms of ethics, with one of the defendants, Jane Augsburger, pointing out that 'he suffragettes had to break all the windows on Oxford St to get the vote … our protest was to point out that vandalism to the planet is legal.'
The decision of the jury in this case highlights an urgent need for laws to be passed to support the continuation of our ecosystems, and to enable the UK legal sector to be able to act proactively to reduce the likelihood of mass human suffering that will be caused if the world fails to mitigate the effects of climate change. Environmental law and legislation are powerful tools to hold businesses, governments, suppliers and individuals to account for any damage caused to our planet - enabling prosecutions and penalties for damage will be vital if the UK legal sector is to act on the interests of the planet and the UK population as a whole.
Clauses to support future generations
Anthony Collins Solicitors has been supporting The Chancery Lane Project in its efforts to use the law to green our planet. The initiative, which began in the UK, soon spread across the world to include 1,300 legal professionals and 275 organisations collaborating to develop new, practical contract clauses and model laws to fight climate change.
Each clause is given a child’s name to highlight the connection to the next generation, for whom the aims of The Chancery Lane Project to create more sustainable agreements that help society meet targets like net-zero is paramount.
With sixty clauses adopted by the Practical Law Company, lawyers will be able to draft these clauses for their clients, regardless of their precedent. Additionally, Anthony Collins Solicitors offers legal professionals 30-minute training sessions on how to draft contracts that incorporate these new clauses.
As both lawyers and human beings, we have the responsibility to help to preserve our planet for future generations and to assist our clients on their own journey to carbon-neutrality by helping them to navigate the law.
By encouraging clients to adopt a forward-thinking approach to tenders and to implement environmental initiatives in contracts, we can all employ our legal expertise to build a better world.
Natalie Barbosa is senior associate at Anthony Collins Solicitors