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Weekly take: Lawyers – stop taking fossil fuel money, before it’s too late

Wildfire disaster in tropical forest caused by human

The UK’s politicians want to expand fossil fuel production, so when will the legal sector act?

In February last year, City of London law firms faced demands to cut ties with Russia and shut their offices there.

It was unconscionable, critics argued, that firms could continue to profit from Russian business while Vladimir Putin waged war on Ukraine.

So why should firms continue to profit from fossil fuels?

This is a challenge to the legal sector at large, but there are some obvious questions for intellectual property solicitors too.

It feels naive to make a moral appeal to a UK legal sector that rakes in, according to some estimates, as much as £40 billion ($51.2 billion) a year.

I’m aware that elegant moral arguments are usually no match for the forces of the market.

If they were, then lawyers would be mortified to be in business with fossil fuel giants.

But law is an industry moved by money and fossil fuels provide lots of it – ‘magic circle’ firms facilitated an estimated £285 billion worth of fossil fuel transactions between 2018 and 2022.

In the end, it was sanctions and political pressure that forced top City firms to distance themselves from the Russian market.

A similar reckoning is long overdue for firms that take money from polluting firms that, left unchecked, will take everything from us.

I first wanted to write this piece in April, when the Law Society of England and Wales published its guidance on climate change for solicitors.

That document was hailed by lawyers in favour of a green transition as a “watershed” moment.

It’s an important piece of work and more lawyers should read it.

It gives solicitors a great deal of flexibility on who they act for and underlines that solicitors can freely refuse to take instruction from clients who conflict with their values on climate change.

The guidance seemed to be the ideal basis for a much more frank discussion over the ties between fossil capital and law.

When I asked sources whether it was acceptable for solicitors to continue taking money from fossil fuel companies, the answer was usually that it was “complicated”.

The conventional view among solicitors seems to be something like this: there is a buyer’s market for legal services and, ultimately, we need the right lawyers to advise fossil fuel giants on the green transition.

While there may be some ethical qualms associated with fossil fuel clients, lawyers are in a powerful advisory position, and cutting off oil and gas firms from legal advice will do nothing to help achieve ‘net zero’ emissions, the argument goes.

Oil rush

The problem for any UK solicitor taking this position should have been made clear on Monday, July 31, when UK Prime Minister Rishi Sunak announced more than 100 new oil and gas drilling licences.

Despite what Sunak's government claims, there will be no green transition as long as we're still extracting fossil fuels from the ground.

It’s clear that the biggest oil and gas companies plan to expand fossil fuel production for as long as it is profitable to do so. Lawyers are helping them do it and getting rich in the process.

This has already been clear for some time. An investigation by the US House of Representatives, itself no stranger to oil money, last December was unequivocal.

Documents obtained by the House showed “how the fossil fuel industry ‘greenwashed’ its public image with promises and actions that oil and gas executives knew would not meaningfully reduce emissions, even as the industry moved aggressively to lock in continued fossil fuel production for decades to come – actions that could doom global efforts to prevent catastrophic climate change”.

Monday’s announcement showed this strategy is at work in the UK. The opposition Labour Party has pledged not to revoke any extraction permits granted before it takes power.

With an election due next year, fossil fuel companies are racing to secure enough offshore drilling licences to consign us all to a watery grave in the North Sea.

So, what do solicitors hope to gain from advising them except a cut of the pie?

Plan of action

The key problems with the green transition are not legal, technical, or logistical, they are political.

The legal sector is fulfilling demand from an industry that’s been subsidised and backed to the hilt by governments.

Any change of course on climate change demands an all-of-society transformation that goes well beyond the legal sector.

But that’s not to say there’s nothing lawyers can do.

There is an urgent need to redivert capital investment away from fossil fuels and into renewable energy and climate adaptation.

The oil companies haven’t shown any willingness to do it, so the decision needs to be taken out of their hands.

Indulge me in a bit of utopian thinking: lawyers could, in principle, refuse to work with oil and gas companies until they agreed to immediately halt fossil fuel expansion.

There are already more than 100 barristers in the UK who have said they will refuse to act for the prosecution against peaceful climate protestors.

Unlike criminal barristers, corporate solicitors aren’t subject to the ‘cab rank’ rule that says they should take the next case that comes along.

As the Law Society’s guidance makes clear, they can pick and choose their clients. So shouldn’t solicitors take action too?

Fossil capital relies on legal services to achieve its ends, and IP lawyers play their part.

IP solicitors draft, file, and renew patents that enable monopolies on aspects of oil and gas production.

They manage trademarks that help maintain the value of fossil fuel brands.

Firms with major IP practices execute fossil fuel contracts and advise on transactions with huge associated emissions.

Partners, including IP lawyers, are well rewarded for their roles. But there must be at least a handful who wonder whether it’s all worth it.

Sooner or later, the gravy train will derail. A society powered by oil and gas extraction will inevitably eat itself.

It’s true that well-paid lawyers in rich economies will be able to shield themselves from the worst effects of climate change, at least for a while.

The ‘global south’, on the other hand, is already battling catastrophe.

Solicitors with links to fossil fuels will need to ask themselves if that’s the world they want.

If they continue to do nothing, at least we’ll have our answer.

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