30
the stock of existing legislation (Eskander and Fankhauser, 2023), and there is no reason to
believe legislation arising as a result of litigation would be any different.
Indirect impacts of litigation
If we look beyond the outcomes, we see an even
more complex picture emerging. Below we discuss
three areas where there appears to be growing
evidence of the ‘indirect’ impacts of the types of
litigation discussed above.
Amplifying ‘climate risk’
Finance is one sector that is starting to take
considerable interest in the issue of climate change
litigation. In last year’s report we noted the
increasing volume of evidence to show that actors
external to the core community of climate litigation
practitioners were starting to take the phenomenon
of climate change litigation seriously. We suggested
this evidence could be used as a proxy to
understand where litigation risk might be influencing
decision-making, citing references to climate
litigation in the Bank of England’s climate stress
testing exercise and a paper on climate litigation
produced by the Network for Greening the Financial
System (Higham and Setzer, 2022).
New stakeholders have been engaging with climate
litigation in the last 12 months, including the
Climate Financial Risk Forum (CFRF), a joint
initiative by the Prudential Regulatory Authority
(PRA) and the Financial Conduct Authority (FCA) in
the UK that brings together senior financial sector
representatives to share their experiences in
managing climate-related risks and opportunities.
The CFRF published a report in December 2022 to
guide the thinking of insurers and related
stakeholders in their approach to managing and
mitigating climate litigation risk. The report notes
“climate litigation risk is emerging as a significant
challenge for the insurance industry and one which
will crystallise far ahead of the impact of climate
change on physical insurance perils”. Additionally,
the World Economic Forum held a panel on the topic
for the first time earlier this year, in Davos.
Increasingly, international and regional bodies are
also taking climate change litigation into account in
their work. In 2021, the Parliamentary Assembly of
the Council of Europe recommended that the
Committee of Ministers commission a study on
“national climate litigation cases” as part of its
broader work to address “issues of civil and criminal
liability in the context of climate change”. This
recommendation was subsequently taken up by the
Committee of Ministers, which invited the European
Committee on Legal Co-operation to consider
Box 1.3. Climate change and the
legal profession: has climate-
conscious lawyering entered the
mainstream?
The rise in climate change litigation
and changing perceptions of the risk
such litigation carries, along with the
increasingly urgent warnings from the
scientific community on the need for
all sectors of society to engage in the
climate challenge, have led to
increasing interest in the topic of
climate change from the broader legal
community. All but one of the world’s
top 10 law firms by revenue have
recently published reports or
commentaries on climate litigation,
while bar associations and other
membership organisations, including
judges’ associations, are becoming
increasingly engaged (see Dernback
et al., 2023; ELF and CCBE, 2023;
EUFJE, 2022).
Law societies, professional bodies that
represent lawyers qualified in a certain
jurisdiction, are also starting to issue
guidance on the impact of climate
change on the profession. For
example, the Law Society of England
and Wales published guidance in April
2023 noting that for lawyers, the most
significant greenhouse gas emissions
are likely to be emissions associated
with the matters upon which they
advise. Much of the conversation
among legal practitioners is framed
around the concept of ‘climate-
conscious lawyering’, an idea
popularised by Brian Preston, Chief
Justice of the
Land and Environment Court of New
South Wales (Preston, 2021), after it
was first developed by Bouwer (2015).
The concept requires lawyers to
incorporate an active awareness of the
reality of climate change and how it
interacts with legal problems into their
daily practice.