Lawyers Rebel Against 'Abject Failure' of Legal System to Prevent Climate Crisis

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Climate activists have very visibly taken over central London once again, climbing onto planes and spraying government ministries with red paint. But some are taking a quieter, more legal, approach that looks at the problem from a differentย slant.ย 

On 9 October, during another week of protests across the world, a group of legal professionals and law students allied to Extinction Rebellion sounded the climate alarm on behalf of their profession by making a formal โ€˜declarationโ€™ of climate emergency outside the Royal Courts ofย Justice.ย 

โ€˜Lawyers Declareโ€™ want to highlight how the legal profession and system are key contributors to the climate crisis. The group is calling for climate justice for all people on earth – especially those in the Global South – intergenerational justice and ecological justice for the naturalย world.


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Lawyersย Declare

The group had also hoped to make the declaration inside the Inns of Court – the privatised streets in central London that house professional associations for barristers in England and Wales – but was barred from doingย so.

Inspired by XR Medics and other professional sub-groups of Extinction Rebellion, Lawyers Declare is challenging prime minister Boris Johnsonโ€™s dismissive comments that the campaigners are just โ€œuncooperativeย crustiesโ€.

One of the groupโ€™s founders is Natalie Barbosa, whose journey into climate campaigning began with animal rights activism. She grew up in the โ€œbeautifulโ€ Ribble Valley, surrounded by meadows and inspired by the conservation story of Diane Fosseyโ€™s Gorillas in the Mist.ย 

But she realised that climate change threatened other efforts to protect the planet: โ€œThe stuff that Diane Fossey was doing is not going to be enough in the face of the behemoth that is climate change,โ€ she tellsย DeSmog.

Barbosa, who has worked as a lawyer for 15 years and was recently listed in the industryโ€™s prestigious Legal 500, describes the legal profession as very conservative and says it hasnโ€™t played as positive a role in tackling the climate crisis as it could. โ€œI was one of those lawyers that when they joined law school I really believed it would make a difference,โ€ she explains. Unfortunately, โ€œUK law has a tradition of looking to the past, not theย future.โ€

The XR Lawyers declaration states that lawyers are โ€œdeceivingโ€ themselves that they must wait for others to make law which they will merely interpret. โ€œFrom the invention of the tort of negligence to the circumstances in which judicial review can challenge executive power, lawyers and judges have historically been innovative in interpreting, developing and even creating whole new areas of law,โ€ itย states.ย 

Breaking the lawย 

Farhana Yamin, a well-respected environmental lawyer and consultant who has provided legal and policy advice to many different countries and constituencies, is another signatory of Lawyersย Declare.

Yamin told the group assembled outside the Royal Courts of Justice that she had thought she was working with other people to create a system that would prevent climate chaos. But she was disappointed, saying all national laws are wholly inadequate to deal with theย problem.ย 

In 2009, Yamin was involved in climate talks in Copenhagen, advising the Alliance of Small Island States to push for a 1.5ยฐC warming target. But it took more than ten years for the Intergovernmental Panel on Climate Change (IPCC) took to stress the dangers of exceeding 1.5ยฐC. When it finally did, in October last year, she had had enough and became involved in Extinctionย Rebellion.ย 

In April, she was arrested after gluing herself to Shellโ€™s headquarters. โ€œSometimes breaking the law is more important in raising the alarm about how out of kilter the legal system is,โ€ sheย said.

Although her law firm has been supportive of her interests and activism, Barbosa is aware of the risks to her career of getting arrested – a key Extinction Rebellion tactic. She says prosecution would not automatically result in being struck off but the Solicitors Regulatory Authority is investigating at least one other lawyer involved in Extinction Rebellion after their secondย arrest.

But Barbosa is more optimistic about the lawโ€™s ability to leverage action on climate: โ€œIโ€™m really hopeful that if XR Lawyers and public law projects and other things like that, if we all get our heads together then we might be able to do some really greatย things.โ€

Richard Lord QC, a barrister with Brick Court Chambers and another signatory of Lawyers Declare, agrees, saying that across the world progress is being made in the areas of tort law, human rights, administrative law, judicial review and public trust. โ€œWhen I started writing and speaking about climate change litigation in 2003, it was seen as some far-fetched and fantastical notion. A great deal hasย changed.โ€ย 

Lawsuits

Climate litigation has become a hot topic over the past five years. The Urgenda Foundationโ€™s win against the Dutch government in 2015, where a court ordered the state to do more to meet 2020 emission targets, was a pivotal moment for the movement. Although the decision is still under appeal (a final decision by The Netherlandsโ€™ highest court is expected soon) it inspired similar cases across the world including in Ireland, Switzerland, Pakistan and Newย Zealand.ย 

The US has seen the biggest swell of cases brought against governments and corporations, but there have been over 50 in the UKย too.

Maya Campbell got involved several years ago when she was a politics student at Newcastle University. โ€œI wasnโ€™t that well aware of issues pertaining to climate change at the time. I picked up a book that I thought was sci-fi and it turned out to be Six Degrees by Mark Lynas. That was quite a big adjustment for me in terms of myย thinking.โ€

In 2017, she was asked by environmental charity Plan B to be a claimant in a case against the UK government alongside ten other people – one of them a nine-year-old child. They were trying to force the government to strengthen its emissions reduction targets in line with the Paris Agreement. โ€œI thought it was the perfect opportunity to utilise the courts for something powerful and important because the politicians werenโ€™t picking up the slack,โ€ sheย says.

Campbell was particularly motivated by the idea of delivering justice for a problem that has disproportionate impacts around the world. Sheย says:

โ€œAs somebody that has family in the Caribbean, you hold your breath every hurricane season because you donโ€™t know whatโ€™s going toย happen.โ€

โ€œSo I liked the way that we did it in terms of a class action, speaking for people that didnโ€™t necessarily have the voice or opportunity to leverage the courts in the way that we attemptedย to.โ€

Although the Plan B case was ultimately unsuccessful in court, Campbell feels it succeeded in influencing domestic climate policy. โ€œBy the end of the case the government basically had to say โ€˜Weโ€™re going to seek advice on amending our climate change targetsโ€™. We shone a light and showed that people are actually watching and actuallyย care.โ€ย 

After the case Campbell completed a masters degree in law and now works as a legal researcher. She is still a climate campaigner with Plan B and other localย organisations.

She says that while climate change litigation is still a niche area of climate activism โ€œit feels like every case, every piece of evidence is a step towards having the right people have those kinds of conversation. I think it will go hand in hand with the unrelenting wave of climateย activism.โ€

And as a young woman of colour, she wants to challenge the image of who can get involved. โ€œWhen Boris Johnson talks about uncooperative crusties I imagine heโ€™s thinking about a white man with dreadlocks. But I think climate activism is forย everyone.โ€

Ecocide

Many people involved in legal climate activism were inspired by the work of environmental lawyer Polly Higgins, who long campaigned to have ecocide made a crime against humanity. Rather than stalling her efforts, Higginsโ€™ death earlier this year seems to have given them freshย life.ย 

The Stop Ecocide campaign is headed by Jojo Mehta, who worked closely with Higgins for the past four years. โ€œMy wake-up moment from armchair activism and signing petitions to actually being on the street was fracking,โ€ sheย says.ย 


Image: Farhana Yamin speaks to protestors outside the Royal Courts of Justice in London. ยฉ John Paulย Brownย 

When she met Higgins in 2014 they really clicked and Mehta was inspired by the โ€œelegant simplicityโ€ of her idea. She is now working with criminal lawyers, campaigners and diplomats to try to get ecocide formally recognised as a crime at the International Criminalย Court.ย 

โ€œWe do sometimes encounter resistance from people who are in the legal arena, because your average lawyer is trained to approach the law in a certain way. We get lawyers coming up to us saying โ€˜you canโ€™t do that because itโ€™s never been doneโ€™. But laws change because someone makes thoseย changes.โ€ย 

Since April, the campaign has really taken off. โ€œWe had these crazy two weeks where we redid the website and branding and during that, what turned out to be Pollyโ€™s last week, what she was seeing on the internet was actually our messaging getting out properly on the streets for the first time. That was reallyย exciting.โ€ย 

The organisation has now grown from a handful of volunteers to a campaign team of around 16, an international diplomatic team of seven or eight, and thousands of signed-up members. โ€œWhen people say how they got involved it was always because they were inspired by a specific conversation, a meeting, the overall purpose of the thing. People feel so passionately about an issue that they want to dedicate their time, energy and activity to that,โ€ saysย Mehta.ย 

โ€œTheyโ€™re not necessarily someone that goes out on the streets – Polly wasnโ€™t an activist in the classic boots-on-the-ground sense – but in terms of what she was doing it was fundamentally activist. It aimed to effectively change the world for theย better.โ€

Main image:ย ยฉ John Paul Brown. Updated 15/10/29: It was clarified that Barbosa has been a lawyer for 15 years, not specifically aย solicitor.

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Isabella Kaminski is a UK-based freelance journalist specialising in the environment and climate change.

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