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Three reasons why lawyers should engage with climate change | Meredith James and Aladdin Diakun

Tuesday, February 16, 2021 @ 11:09 AM | By Meredith James and Aladdin Diakun


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Meredith James
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Aladdin Diakun
At the Canadian Bar Association (CBA) annual general meeting on Feb. 17, 2021, a Climate Leadership Resolution will be up for debate. Here are the top three reasons why lawyers should care about climate-related risks and opportunities as we move toward a net-zero emissions economy

1. Risk management

Every sector of the economy will be exposed to some type of climate change related risk. Physical risks are those posed to operations, assets and supply chains by climate change and extreme weather events. Transition risks are associated with ongoing shifts in market behaviour, technology, finance and regulation as society transitions to a net-zero economy. Litigation risks may arise where clients have failed to sufficiently take the first two risk categories (and corresponding opportunities) into account.

Understanding these risks is a priority for central banks and financial regulators. The Bank of Canada, for example, describes climate change “as a potentially large structural change affecting the economy and the financial system.” The Canadian Securities Administrators, noting that climate changes risks are now “a mainstream business issue,” issued a 2019 notice that ongoing risk management and disclosure practices should take climate change into account.

Physical risks are already affecting insurance and capital costs. The Insurance Institute of Canada warned last year that “[s]evere weather and climate risks have replaced fire to become the most important peril for property insurance in Canada. Over time, climate-related risks may displace auto coverage to become the leading coverage provided by the insurance industry in Canada.”

Meanwhile, Big Five banks are making net-zero commitments, evaluating climate risk in lending arrangements and creating novel streams of sustainability-linked financing. Some of the fastest-growing companies are those looking for the opportunities amid the planetary pain points.

Given these fast-changing physical, regulatory and market conditions, lawyers should be wary of a “climate blind” approach that could expose their clients to risk. Instead, the growing impacts of the climate crisis and of humanity’s response require “climate-competent lawyering.” An increasing number of specialists will continue to play an important role in this evolving legal landscape. However, as “trusted advisers,” lawyers across practice areas must be literate and engaged on climate change as well, if only so they can effectively spot issues that require further expertise.

2. Anticipating change

The transition to a net-zero economy is underway. In November 2020, the minister of environment and climate change tabled the Canadian Net-Zero Emissions Accountability Act in the House of Commons. Among other things, it will bind the government to a process to achieve net-zero emissions by 2050.

Similar net-zero commitments are spreading around the world as governments, investors and businesses all rise to the challenge. The speed is staggering. By last June, over half of the world’s GDP was being generated in places that had established or proposed to reach net-zero emissions in the next 29 years. The year 2020 saw the number of local governments and businesses making such pledges double in under a year, as many look for win-win recoveries from the pandemic. Over 1,000 companies, including giants like Shell Oil, Walmart and Amazon, have also made net-zero commitments. Investors representing trillions in assets are leading the charge as well.

This transition is required to avoid the worst impacts of a changing climate but, even if successful, it will not come in time to avoid some locked-in physical risks. As summarized in a recent government of Canada report, “Many aspects of climate change are irreversible on multi-century timescales … and global temperature will remain elevated even after emissions cease.” The report concludes #6: “In the future, anthropogenic climate change will continue to affect aspects of climate important for agriculture, forestry, engineering, urban planning, public health, and water management, and the preparation of guidance and standards.”

3. Legal ethics, law reform

Climate change has implications for the justice system as a whole that we are only beginning to grapple with. For example: the demonstrated relationship between temperature rise and the incidence of violent crime and the practice of criminal law; climate change implications for occupational health and safety and the practice of employment law; and the increase in climate-induced migration and the practice of immigration and refugee law.

Climate change also disproportionately impacts the same vulnerable communities that already struggle with inequities and meaningful access to justice. Thus, climate change will increasingly amplify existing justice challenges and must inform ongoing conversations about meaningful justice reform.

In meeting the threat of the fast-changing climate, it is essential that we also turn our minds to the particular challenges posed to human rights. As justice actors, lawyers have an essential role to play in heeding calls by the UN Office of the High Commissioner for Human Rights and others to ensure that climate action safeguards human rights and enhances their meaningful exercise.

Takeaways

These three reasons show why the Climate Leadership Resolution is necessary to encourage and support lawyers to develop the awareness, competencies and legal tools required for their clients and the justice system to respond to the climate crisis. The COVID-19 pandemic underscores the importance of being proactive and prepared. In contrast to a sudden pandemic, we have received ample warning that the impacts of climate change will be widespread and severe. We have a duty as a profession to consider how to respond.

Meredith James is a lawyer with Woodward & Company Lawyers LLP in Victoria, B.C., where she provides legal services to First Nations. She previously practised environmental and municipal law in Toronto in both the private and public sector and has a background as an environmental biologist. Aladdin Diakun is a 2020 call and a candidate for the Global Association of Risk Professionals’ Climate and Sustainability Risk program. He has nearly two decades of experience in climate and sustainability issues spanning the think tank, NGO, and academic communities.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.