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> > > The role of lawyers in protecting the planet

The role of lawyers in protecting the planet

7 juin 2017 Professions du droit

FédérationDesBarreauxDEurope-Articles-Legitech.lu

Professor Sara Chandler QC (Hon), solicitor specialising in social welfare law in the Legal Advice Centre of the London South Bank University, future President of the Fédération des Barreaux d’Europe (FBE) as from June 2017.

2017 sees the eruption of controversy on climate change, with a change in the approach of the USA to the international agreements on climate change.

The concern of nations was expressed in the Paris agreement of 12 December 2015, which sets out how the majority of the world’s countries shall tackle climate change from 2021. The parties agreed on the « urgent need » to reduce greenhouse gas emissions and on making progressively greater reductions into the future.

As former US president Barack Obama left office, he made a last stand on climate change, in an attempt to help secure the future of the historic Paris agreement, by transferring a second 500m USD instalment to the Green Climate Fund. The fund was a key aspect of the Paris agreement, which aims to keep global warming “well below” 2°C and aspires to keep warming to 1.5°C. The USA committed to transferring 3bn USD to the fund.

There is a growing legal status of climate change principles. The EU has committed to three targets for 2020. The first is to reduce emissions by 20% on 1990 levels. The second is to provide 20% of its total energy from renewables. The third is to increase energy efficiency by 20% from 2007 levels. However, implementation and compliance is variable.

Litigation has filled the gap in legislation e.g. the Urgenda case1)Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396, 24 June 2015. in the Netherlands, and the Client Earth case2)ClientEarth v. Secretary of State for the Environment, Food and Rural Affairs, [2016] EWHC 2740, CO/1508/2016, 2 Novembre 2016. in London, particularly on measures such as emission reduction targets which are not being implemented.

Dutch association, The Urgenda Foundation, and 900 individual plaintiffs won their case in the district court of The Hague on 24 June 2015, forcing the Dutch government to adopt more stringent climate policies. The district court of The Hague granted the plaintiffs’ claims, and ordered the government to take more effective action to reduce the Netherlands’ considerable share in global emissions. This was the first time that a judge has legally required a State to take precautions against climate change.  In April 2015, the Oslo Principles on Global Climate Change Obligations’ were published by an international group of eminent lawyers, who argued that states on the basis of tort law and human rights (among others) are legally accountable for emissions of greenhouse gasses from their own territories.

In November 2016, ClientEarth, an organisation based in London, won its High Court case against the Government of the United Kingdom (UK) over its failure to tackle illegal air pollution across the UK. The Court ruled that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible”. The Government’s planned 2020 compliance for some cities, and 2025 for London, had been chosen because that was the date when ministers thought they would face European Commission fines, not which they considered “as soon as possible.”

This was the second case which ClientEarth brought against the UK government. In April 20153)R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs, [2015] UKSC 28, 29 April 2015., ClientEarth won a Supreme Court ruling against the government which ordered ministers to come up with a plan to bring air pollution down within legal limits as soon as possible. Those plans were so poor that ClientEarth took the government back to the High Court in a Judicial Review. In the 2016 judgement, the Court ruled that the government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and said that the government had erred in law by fixing compliance dates based on over optimistic modelling of pollution levels.

Lawyers’ roles are many and varied. We are advisers, negotiators, mediators, arbitrators, legislators, litigators and judges. The FBE was set up on 23 May 1992 in Barcelona as the successor organisation to the Conference of Principal Bars of Europe and has at the heart of its statutes the defence of the fundamental principles set out in the European Convention on Human Rights. In recent years, this has meant that much of the FBE work centres on the defence of lawyers at risk, access to justice, the rights of refugees and the UN guiding principles on business and human rights (UNGPs).

The FBE has guidelines on the UNGPs and our members can now address the urgent questions they face in respect of climate change and how to advise their clients. In litigating for change, environmental lawyers have help to create legal precedent that contributes to the growing jurisprudence on climate change.

From 9 to 11 November 2017, the FBE will hold its 50th Congress in London and celebrate 25 years of existence. The “Climate Change Congress” is an appropriate theme for such an important anniversary. The panel sessions are varied, with information and debate on:

  1. Legal and social responsibility in relation to the environment, including speakers on the leading climate change litigation;
  2. The human rights of indigenous people where the natural environment is under threat;
  3. Responsibility of lawyers in advising their clients on the UN Guiding Principles on Business and Human Rights, including climate change legislation;
  4. The Paris Agreement and European measures to protect the environment.

Expert speakers        

Dr Eloise Scotford of King’s College of London University, expert in environmental law, will speak on legislative and adjudicative processes for the environment.

Maria Memoli is Head of Legal Practice Cambridge Local Authority and her expertise includes probity and corporate and ethical governance. She will speak on local authority policies for environmental protection and sustainability.

Katarzyna Ludwichowska is an Attorney-at-Law in Gdansk; she specialises in environmental law and legal assistance in the scope of wind farm investments. She will speak on advising entrepreneurs.

Risteard de Paor is an Irish solicitor and Associate in the International Arbitration Group at White Case in Paris, and will speak on the Paris agreement.

Hinda Rabkin is an Associate Legal Officer for UNESCO in Paris and will speak on international litigation.

Olga Hancock from Simmons & Simmons, London is a specialist in climate change, and corporate responsibility. She works with the Legal Response Initiative advising climate vulnerable countries in the UN Climate Change negotiations, and will speak on global challenges drawing on her experience working in the UK, Australia and Indonesia.

Juan Antonio Loste, President of the Environmental Law Section of the Barcelona Bar Association and expert on environment and sustainable development, will contribute on sustainable development.

Dr Roda Verheyen of Hamburg is a board member of the Climate Justice Programme. She works for Green Peace amongst others and has forged a pioneering role in climate change litigation.

City of Westminster & Holborn Law Society (CWHLS) is organising the Congress, and welcomes Bar Associations from all over Europe. Further information can be found on www.fbe.org.uk, and please contact fbeclimatechange@gmail.com.

Références   [ + ]

1. Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396, 24 June 2015.
2. ClientEarth v. Secretary of State for the Environment, Food and Rural Affairs, [2016] EWHC 2740, CO/1508/2016, 2 Novembre 2016.
3. R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs, [2015] UKSC 28, 29 April 2015.

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