Green Hub: Raising the Bar: The Role of Barristers and their Chambers in the Climate Crisis and Green Transition
The article highlights influential work done by barristers and their chambers to fight against climate change and drive the green transition. Examples are from 39 Essex Chambers, Cornerstone Barristers, Doughty Street Chambers, Matrix Chambers and Twenty Essex.
The Bar holds a unique position in the fight against climate change, biodiversity loss, and in driving the green transition. Barristers’ specialist legal knowledge and their physical presence in the courtroom empower them to advocate for cross-sectoral change required to deal with these multifaceted issues.
The following feature outlines some key trends when considering the Bar’s engagement with the climate crisis and green transition. The first section highlights some particularly influential work, including reference to climate and environmental litigation against both state entities and corporations as well as complex disputes and challenges to specific energy projects. The second part addresses Chambers’ and Inns of Court’s sustainability journeys and some of the challenges and opportunities specific to the Bar. Accompanying the analysis are specific examples of the above from 39 Essex Chambers, Cornerstone Barristers, Doughty Street Chambers, Matrix Chambers and Twenty Essex. These London-based chambers have demonstrated a clear focus on work that mitigates climate change and promotes sustainability backed by strong internal green initiatives and best practices.
39 Essex Chambers
Doughty Street Chambers
Contribution to key cases
There has been a significant rise in climate change-related disputes, with the number globally having more than doubled since 2015. Citizens and NGO groups are increasingly utilising the law to challenge state structures on their insufficient action in tackling climate change as well as corporate actors for their role in accelerating the climate crisis. Also inevitably connected and of significance is the upsurge in environmental lawsuits which focus more directly on matters concerning biodiversity loss and pollution.
Many landmark cases have taken place in European courts such as the Urgenda climate proceedings against the Dutch Government in 2019 in which 900 Dutch citizens sued the government for not acting sufficiently on the climate crisis. The judgement was of particular significance as it confirmed the threat that climate change poses to human rights. Cases such as this are also a catalyst for societal change and can have a domino effect (whether they are successful or not). The Urgenda case was as much about challenging the state’s passive inaction as it was about its failure to fulfil existing climate commitments, and actively contributing to human rights violations of its citizens. In the years since Urgenda’s victory in the Netherlands, similar cases have cropped up across the world and barristers have been in a unique position to advocate for green change on behalf of their clients.
- At Matrix Chambers, public lawyer David Wolfe KC acted for Friends of the Earth between 2021 and 2022 in its challenge to the legality of the Government’s Net Zero Strategy whilst energy and environmental expert Jessica Simor KC acted on behalf of Client Earth. The challenges were successful with the court ordering the government to produce a new strategy by March 2023. This is one of the biggest climate change cases in the UK to date.
- In March 2023, Jessica Simor KC who operates from Matrix Chambers represented more than 2,000 elderly Swiss women in the first climate change case heard before the European Court of Human Rights. The claimants argue that the Swiss government’s response to climate change is inadequate and has negatively impacted their health. The ECtHR can be expected to reach a decision by the end of 2023 at the earliest.
- Sam Goodman, who is a barrister at Twenty Essex, is acting for Client Earth in one of the most significant commercial litigation cases in the English court which will examine the Board of Shell PLC’s net zero strategy. The claimant alleges the Board is in breach of their director’s duties in adopting an irrational strategy and failing to prepare the company for net zero.
In addition, the green transition has inevitably been accompanied by more complex disputes concerning energy projects. These can range from challenges by environmental NGOs to proposed and existing fossil fuel projects to conflicts between competing renewable energy projects, which are also important to resolve to prevent critical delays to the energy transition.
- Planning and environmental law specialists Richard Harwood KC and Celina Colquhoun from 39 Essex Chambers are acting for Orsted Hornsea Project Four in respect of the conflict between their offshore wind farm scheme and BP’s major carbon capture project; both are planned on the same site in the North Sea.
- Estelle Dehon who operates from Cornerstone Barristers is representing South Lakes Action on Climate Change in the statutory review of the granting of planning permission for a new coal mine extending under the seabed in Cumbria. The High Court will hear the legal challenge in October 2023.
- Climate change and human rights specialist Tim Cooke-Hurle from Doughty Street Chambers is instructed by Global Legal Action Network as sole counsel to mediate ongoing proceedings before multiple NCPs and the OECD regarding serious human rights abuses and environmental pollution at the Cerrejón coal mine in Colombia. Investigations into BHP, Anglo-American, Glencore and ESB are ongoing.
- At Twenty Essex, Monica Feria-Tinta is assisting ClientEarth (on behalf of Inclusive Development International) in the complaint against the insurance broker firm Marsh regarding the proposed East African Crude Oil Pipeline by Total Energies set to be the longest heated crude oil pipeline in the world. The claimant alleges that in providing insurance, Marsh has failed to meet the standards for human rights and environmental due diligence under the OECD guidelines.
Barristers’ extensive expertise is also being utilised to reassess how the legal profession itself operates when faced with the gravity of the climate and ecological crisis. Doughty Street Chambers’ Margherita Cornaglia was instructed by The Good Law Project to draft a public letter which raises concerns over the ethical and legal issues regarding the role of lawyers in the context of the climate and ecological crisis. More specifically, the letter points to withholding professional services in the case of supporting new fossil fuel projects and acting against peaceful climate protestors. In March 2023, many lawyers including 18 barristers signed the declaration, which has resulted in significant backlash. Opponents claim that these actions constitute a breach of the ‘cab rank rule’ which prevents barristers from refusing work based on their own beliefs.
Greening the Bar
It is important for barristers and their chambers to recognise the role they play in the climate crisis both inside and outside of court. Attracting young talent is more important than ever and the extent to which Chambers and Inns of Court are undertaking their own sustainability and net zero journeys is undoubtedly a critical factor for those embarking on a career with The Bar.
Nevertheless, for barristers and their chambers, the net zero transition comes with a specific set of challenges. Approximately 80% of barristers are self-employed, meaning the vast majority lack a formal management structure. This presents limitations when it comes to enforcing sustainable behaviours within chambers. Take work travel, for example; many barristers can themselves decide whether they go by train or plane, and if, opting for the latter, whether this is by first-class, business-class or economy. For context, a long-haul first-class trip emits around four times the amount of carbon dioxide into the atmosphere than the same trip in economy. In addition, compared to law firms, chambers have relatively fewer employees able to focus their attention on sustainability measures. Numerous chambers also operate from historical premises such as in the Inns of Court, preventing certain modernisation efforts focused on improving the energy efficiency of buildings.
Although some of these obstacles may require a more existential rethink of how The Bar operates – something no profession seems immune from amid the climate crisis – there are certainly achievable measures chambers can take such as switching to sustainable suppliers and energy providers, reducing paper use, and encouraging more climate-conscious behaviours of its members and staff. In March 2021 the Bar Council launched the Bar Sustainability Network to help chambers ‘transition to a more sustainable way of working’. Members benefit from a range of support and guidance including free use of the network’s carbon calculator tool.
- 39 Essex Chambers’ green strategy and committee is made up of both staff and barristers and has implemented various green initiatives focusing on improving its building, operations, and behaviours. The building itself is rated ‘excellent’ by BREEAM; it is fitted with bat boxes to encourage biodiversity and has a green roof with solar panels to lower emissions. To encourage more sustainable methods of transportation, staff and members are offered extra days of holiday for slower travel modes as well as a cycle-to-work scheme.
- Cornerstone Barristers implemented a ten-year green agenda strategy focused on minimising its direct and indirect environmental impact. As early joiners to the Bar Sustainability Network, the staff and its members regularly share best practices with other chambers and use a carbon calculator to measure emissions and help to set reduction targets. The sustainability committee oversees its transition to renewable energy sources and greening the supply chain. There is a core focus on educating the workforce as part of its strategy, nudging members to make climate-conscious decisions.
- Ben Cooper KC spearheads the chambers’ sustainability commitment at Doughty Street Chambers. Cooper founded the Green Team which is a collective of members and staff focused on decarbonising the practice in line with science-based targets. Cooper also founded the charity Dream for Trees, which the Green Team has supported by planting a new micro forest for schools in Camden and out of London.
- At Matrix Chambers, the catering has been entirely vegetarian since 2018 as a means of reducing its environmental impact. It has replaced water coolers and single-use plastic cups in the office with tap water and glasses. The Green Committee established in 2019 has focused on improving the Chamber’s recycling scheme and has moved to a 100% renewable energy provider for the premises. The committee publishes regular carbon footprint calculations to track its progress towards a goal of net zero for its Scopes 1 and 2 emissions by the end of 2025. Other measures taken include internal campaigns to improve the behaviour of its staff and barristers.
- Twenty Essex has opted for a Hive system at its premises at 18 and 20 Essex Street to best manage and monitor energy usage. In its expansion into 23 Essex Street, new meeting rooms have fitted filtered and sparkling water taps to eliminate the need for plastic bottles. It has also switched coffee machines to a brand that enables pod recycling. To reduce paper waste, the library team has corresponded with major publishers to advocate for increased digital provision so documents can be digitally numbered for court bundles and therefore do not need to be printed and scanned.
Scope 1, 2 and 3 emissions cover an organisation’s direct operational impact and the impact of its supply chain. Another element to consider specific to the legal sector is ‘advised emissions’ (also referred to as Scope 4, Scope X, or lawyered emissions). According to The Law Society, these can be defined as ‘emissions associated with the matters on which solicitors advise, as a proxy for understanding whether these are reducing, alongside their clients, in line with the IPCC recommendations’. This is a particularly important topic of consideration in the legal profession in which direct emissions are limited in comparison with, for example, the industrial sectors.
As referenced in the first part of this article, a group of prominent lawyers have committed to withholding their services in respect of supporting new fossil fuel projects and acting against peaceful climate protestors. These types of commitments may demonstrate what reducing advised emissions may look like in practice, however, given the cab rank rule, how attainable are these commitments to barristers? The rule, which is arguably at the heart of the profession, simultaneously works to prevent discrimination whilst protecting barristers from condemnation when working on unpopular cases. Although no action has yet been taken against the 18 barristers (including six king’s counsels) who have signed the declaration, those going against it may face serious consequences by the agency of The Bar Standards Board in the near future, and junior member signatories could experience significant setbacks in their careers. No clear answer is on the horizon, but these conversations are undoubtedly important, and when faced with the existential threat of the climate crisis, we can expect them to continue.