Is it time for lawyers to get rid of their fossil fuel clients?

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As residents of Lismore return to their flood-ravaged homes, the United Nations Intergovernmental Panel on Climate Change has issued its starkest warning yet about the likelihood of catastrophic climate change: c It’s now or never if the world is to avoid irreversible damage. .

The IPCC has clearly indicated the necessary measures. Among other changes, coal production will have to be reduced by 76% over the next eight years. Existing oil and gas infrastructure will have to be shut down by 2050. There can be no new fossil fuel projects if we are to keep global warming within safer limits. We have already locked in a 1.3 degree Celsius rise and, as the devastation at Lismore demonstrated, that is already proving too much for our planet. Our current trajectory is at least 3 degrees Celsius.

UN Secretary General António Guterres says we are “firmly on the right track towards an unlivable world”. Investing in any new fossil fuel infrastructure, he says, is “moral and economic folly.” Yet Australia doesn’t just have one new fossil fuel project underway – it has 114 and is already one of the world’s biggest exporters of coal and gas.

It’s no surprise that fossil fuel companies are coming 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 too. Yet one group that plays a key role in supporting the prosecution of the fossil fuel industry has managed to fly under the radar – the legal profession.

Most Australian commercial law firms count fossil fuel companies among their most valuable clients and profit handsomely from enabling their dirty business. This includes legal services that enable fossil fuel companies to minimize tax bills, merge into larger entities, and navigate native title and environmental requirements for their projects.

Pressure from employees and clients has prompted many law firms to reduce their own carbon footprint and raise awareness of the positive impact they have on the world by doing so. Yet most continue to provide the legal services that Australia’s largest fossil fuel entities need to continue profiting from the very products that jeopardize our collective future.

To put this into context, Australia’s largest law firms might emit around 10,000 tonnes of carbon dioxide a year and then try to offset that amount. The 114 fossil fuel projects underway could emit up to 1.7 billion tonnes of carbon dioxide per year. This means that the most important thing law firms can do to avert climate catastrophe is to stop allowing these projects.

The standard retort is that lawyers are not guilty of damages caused by the fossil fuel industry because everyone is entitled to legal representation. But with the exception of lawyers, who are subject to the “booth rank” rule that requires them to take almost any case, representing fossil fuel companies is a choice — and a lucrative one at that.

And at this point in the climate crisis, it is not ethically neutral. Lawyers who advise and represent fossil fuel companies are helping “what could be described as the greatest intergenerational injustice ever inflicted by one generation of humans on the next,” in the words of a Federal Court judge on the basis of his assessment of undisputed science proof. Will we, as a profession that prides itself on being the realm of reason and rationality, heed or ignore what is now unequivocal science?

Australian banks have suffered the consequences of comparable choices and have begun to correct their behavior. Commonwealth Bank and Westpac suffered significant backlash and reputational damage over their potential financing of the Adani Carmichael coal mine, so much so that the two banks, along with 30 other national and international banks, refused to finance the mine. Indeed, the four major Australian banks have since committed to no longer finance thermal coal by 2030.

Ultimately, these funding issues forced Adani to scale back the project dramatically, to 10 million tons of coal per year, despite having been approved for 60 million tons per year. This illustrates how important it has been for financiers to take responsibility for the consequences of their profit-generating activities.

By contrast, there has been no similar thinking or commitments from law firms, which continue to flaunt the work they do for the fossil fuel industry. There’s no reason why companies shouldn’t be scrutinized to profit from this work in the same way as banks. Like the banks, they could have refused to facilitate and profit from these projects but did not.

The implications are twofold: the general public should look closely at the role of law firms in the climate crisis, as they increasingly scrutinize banks; and lawyers need to think about the choices we face. The world’s foremost scientists have spoken: if we are to avoid climate catastrophe, there can be no more fossil fuel projects. To continue to facilitate such projects in the face of this is to knowingly lock us all into the “unlivable” world that the IPCC has warned of.

Offsetting our own emissions falls far short of the position lawyers should take. We have a choice and, as the impact of financiers on Adani demonstrates, that choice has an important 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 greatest assets: their talent pool and much of their clientele. The fallout experienced by leading companies for their portrayal of big tobacco is instructive. Some received such bad press that it prevented them from attracting lawyers, and eventually they had to stop acting for big tobaccos.

Already, US law firms are being publicly named and shamed for their work on fossil fuels. It’s only a matter of time before we see the same thing happen to Australian law firms. Indeed, as two lawyers who have worked for commercial law firms that represent the fossil fuel industry, we would not make the same decision today unless those firms changed course.

Add to this a non-fossil fuel clientele who are increasingly concerned about the real and perceived sustainability of their business operations and it becomes clear that Australia’s first law firm to position itself as fossil fuel free is fast approaching. Not only will young legal talent flock to such a firm, but so will exciting new players in Australia’s energy transition.

The UN Secretary General recently said that the “really dangerous radicals” are not climate activists but countries increasing fossil fuel production. The same logic applies to those who profit from the industry and allow it. Historically, fossil fuel companies and their financiers have been the main beneficiaries of this heat. But are lawyers also guilty of 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 first appeared in the print edition of the Saturday Paper on April 30, 2022 under the headline “Doing harm”.

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