As Lismore residents return to their flood-ravaged homes, the United Nations’ Intergovernmental Panel on Climate Change issued its starkest warning yet on the likelihood of catastrophic changes to the climate: it is “now or never” if the world is to avoid irreversible harm.
The IPCC has made clear what action is required. Among other changes, coal production will need to reduce by 76 per cent over the next eight years. Existing oil and gas infrastructure will need to be shut down by 2050. There cannot be any new fossil fuel projects if we are to keep global warming within safer limits. We have already locked in a 1.3 degrees Celsius increase and, as demonstrated by the devastation in Lismore, this is already proving too much for our planet. Our current trajectory is at least 3 degrees Celsius.
The UN secretary-general, António Guterres, says we are “firmly on track towards an unliveable world”. To invest in any new fossil fuel infrastructure, he says, is “moral and economic madness”. Yet Australia doesn’t have just one new fossil fuel project in the pipeline – it has 114 and is already one of the world’s largest exporters of coal and gas.
It is little surprise that fossil fuel companies have come under increasing pressure for their role in this crisis. And it’s not just fossil fuel companies – companies that enable their carbon-intensive activities, such as financiers and insurers of fossil fuel projects, are as well. Yet one group that plays a key role in supporting the continuation of the fossil fuel industry has managed to fly under the radar – the legal profession.
Most Australian commercial law firms count fossil fuel companies as some of their most valued clients and profit handsomely from enabling their polluting activities. This includes legal services that allow fossil fuel companies to minimise tax bills, merge into larger entities and navigate native title and environmental requirements for their projects.
Employee and client pressure has prompted many law firms to reduce their own carbon footprint and advertise the positive impact they are having on the world by doing so. Yet most continue to provide the legal services that Australia’s biggest fossil fuel entities require to continue profiting from the very products that are compromising our collective future.
To put that in context, Australia’s largest law firms might emit about 10,000 tonnes of carbon dioxide a year and then try to offset that amount. The 114 fossil fuel projects in the pipeline could emit as much as 1.7 billion tonnes of carbon dioxide a year. That means the most important thing law firms can do to avoid climate catastrophe is to stop enabling these projects.
The standard retort is that lawyers aren’t culpable for the harm caused by the fossil fuel industry because everyone has a right to legal representation. But with the exception of barristers, who are subject to the “cab rank” rule that requires them to accept almost any brief, representing fossil fuel companies is a choice – and a lucrative one at that.
And at this stage of the climate crisis, it is not ethically neutral. Lawyers who advise and represent fossil fuel companies are aiding “what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next”, to borrow the words of a Federal Court judge based on his assessment of the uncontested scientific evidence. Are we, as a profession that prides itself on being the domain of reason and rationality, going to heed or ignore what is now unequivocal science?
Australian banks have suffered consequences for comparable choices and have begun to rectify their behaviour. Commonwealth Bank and Westpac experienced significant backlash and reputational damage over their potential financing of the Adani Carmichael coalmine, so much so that both banks, as well as 30 other domestic and international banks, refused to finance the mine. Indeed, the big four Australian banks have all since committed to not financing any thermal coal by 2030.
Ultimately, these financing issues forced Adani to substantially scale down the project, to 10 million tonnes of coal a year, despite having approval for 60 million tonnes a year. This illustrates just how important it has been for financiers to take responsibility for the consequences of their profit generating activities.
In contrast, there has been no similar reflection or pledges by law firms, which continue to parade the work they do for the fossil fuel industry. There is no reason why firms should not be scrutinised for profiting from this work in the same way banks are. Like the banks, they could refuse to facilitate and profit from these projects but have not done so.
The implications are twofold: the broader public should closely scrutinise law firms’ role in the climate crisis, as they increasingly scrutinise banks; and lawyers need to reflect on the choices that we face. The world’s pre-eminent scientists have spoken: if we are to avoid climate catastrophe, there cannot be any more fossil fuel projects. To continue to facilitate such projects in the face of this is to knowingly lock us all in to the “unliveable” world of which the IPCC has warned.
Offsetting our own emissions falls well short of the stance lawyers need to take. We have a choice and, as demonstrated by the impact of financiers on Adani, that choice has a powerful role to play in ensuring the world avoids the worst impacts of climate change.
If the ethical argument doesn’t convince us, then the business case should.
Law firms that continue to represent fossil fuel interests risk losing their two biggest assets – their talent pool and a large portion of their client base. The fallout experienced by top-tier firms for their representation of big tobacco is instructive. Some received such bad press that it impeded their ability to attract lawyers and ultimately they had to stop acting for big tobacco.
Already, US law firms are being publicly named and shamed for their fossil fuel work. It is only a matter of time until we see the same occur for Australian law firms. Indeed, as two lawyers who used to work for commercial law firms that represent the fossil fuel industry, we would not make the same decision today, unless those firms corrected course.
Add to that a non-fossil fuel client base that is increasingly concerned about the actual and perceived sustainability of their business operations and it becomes apparent that the first Australian law firm to position itself as fossil fuel-free is just around the corner. Not only will junior legal talent flock to such a firm, but the new and exciting players in Australia’s energy transition will as well.
The secretary-general of the United Nations recently said the “truly dangerous radicals” are not climate activists but countries increasing the production of fossil fuels. The same logic applies to those profiting from and enabling the industry. Historically, fossil fuel companies and their financiers have been the primary recipients of this heat. But are lawyers similarly culpable for the climate crisis? Yes, we are.
This article was written in a personal capacity and does not reflect the views of the Environmental Defenders Office.
This article was first published in the print edition of The Saturday Paper on April 30, 2022 as "Doing harm".
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