Episode 46

“The first thing we do, let’s kill all the lawyers” is a line from William Shakespeare’s Henry VI.

It’s also one of Shakespeare’s most famous lines, but what did he mean?

There are many possible explanations and this has been debated for hundreds of years. My personal view: He was criticizing how lawyers maintain the privilege of the wealthy and the powerful.

But whatever Shakespeare meant, we need to talk about lawyers and we need to talk about law firms.

In Episode 44 of The Angry Clean Energy Guy, I said I was going to focus on the hypocrisy of banks in the fight against climate change. Then I said I was going to focus in the following episode on the hypocrisy of insurance companies. That was Episode 45. I also said at that time that I was going to then focus on the hypocrisy of service providers.

But when I initially started thinking about service providers, I had not included law firms in my universe. That’s because I thought that everyone has a right for legal representation or should have a right for legal representation, and therefore I was going to keep law firms out of it.

I was thinking about accounting firms signing off on fictional financial statements, for example, financial statements, where they still say that these represent an accurate view of a business even though that business is sitting on coal, oil or gas reserves that the accountants should know very well are not going to be extracted or used in just a few years.

I was also thinking about consultants, writing science fiction disguised as authoritative reports and charging a lot of money for these, for example, environmental assessment reports for petrochemical plants which are completely silent about the plastic pollution the very same petrochemical plants’ products leave in their wake in our lungs, in our air, in our water, in our oceans.

I was also thinking about rating agencies, possibly smoking dope in their case, by rating the long-term bonds of companies without regard to the climate risk inherent in their business.

But then I was having a conversation with a friend and he said, “law firms are the worst”.

That made me stop to think, and the conversation became agitated as we discussed the merits of each point of view.

We’re now a few weeks later and I’ve been mulling this over from every angle and looking into it in more details, and the dramatic conclusion is I agree with him: Law firms are the worst. As a matter of fact, I have upgraded them and they are now getting an episode of their own!

Welcome to Episode 46 of The Angry Clean Energy Guy with me, Assaad Razzouk.

I am so happy you’re here. Thank you

CLIMATE LITIGATION

All the way back in Episode 19 of The Angry Clean Energy Guy, I gave my version of a world tour of climate litigation.

The good news is that climate litigation cases are up tremendously in recent years, but that also means that courtrooms and lawyers and law firms are increasingly relevant, make that hugely relevant, to efforts to address climate change around the world.

In 2017, 884 climate change cases were filed in 24 countries. Last year, in 2020, cases nearly doubled to 1,550 cases. These were filed in 38 countries instead of just 24. You can clearly see that climate litigation is going global.

These cases touch on fundamental life and death issues. Some of the key trends, for example, are increasing numbers of cases based on fundamental and human rights being broken; on the non-enforcement of existing climate and environmental laws; on trying to stop fossil fuel extraction and use; on the fact that corporates should be liable for climate harms, but aren’t; and on advocacy for increased climate disclosures.

All of these issues that climate litigation is covering are really critical to our survival as a species, but who’s doing all that legal work? I am sure you are not going to be surprised by the fact that it’s mostly not for profit organizations and volunteers.

It’s certainly not the big powerful law firms.

So that then begs the question, what are the big law firms doing?

Let’s go back on that note to Shakespeare’s line.

What they’re doing is they’re maintaining the privileges of wealthy and powerful corporations, and they’re doing that notwithstanding the fact that they are harming earth, the environment, public health, clean water, and every single one of us.

BIG, BAD LAW FIRMS

As a matter of fact, big law firms around the world are doing broadly three big, bad things.

First, they love to work on cases making climate change worse, and they love to do that by a ratio of 10 to one, compared to cases fighting climate change.

Second, they adore helping the fossil fuel industry, the petrochemicals industry, plastic polluters, and the likes, also by a ratio of 10 to one.

Third and finally, they are very keen, enthusiastic lobbyists for the destruction of the planet, anti-climate action, also by a ratio of 10 to one, if you look at their billings.

So it’s unavoidable really to conclude that one of the strongest weapons in the fight to “not do anything at all” about climate change is litigation carried out by some of the most established law firms in the world. Actually pretty much by all of them.

It’s definitely past time that these law firms reconsidered how they represent one of the most destructive industries in history and what they’re doing about climate inaction.

As a related issue, every law student, every lawyer really must take into account what their firms are up to as they plot their career, because the moral imperative to do so is there for all of them to see. All they have to do is to look under the hood of whichever law firm they’re either thinking about joining or they’re working at.

LAW STUDENTS FOR CLIMATE ACCOUNTABILITY

There’s a wonderful piece of work that was done by a student-led initiative called Law Students for Climate Accountability. In 2020, hey put together a “law firm climate change scorecard”, where they looked at the top 100 law firms in the United States and graded them according to their contribution to save the planet and their contribution to the destruction of the planet.

You’re not going to be surprised about what they found.

Of those top 100 law firms, there’s only four, that’s 4%, that received an “A” climate score.  There are 14 that received a “B”.

So, put another way, eighty per cent of these law firms are actively engaged in facilitating the destruction of the planet and received a “C”, “D” or “F” with 67% D’s or F’s and 26% flat “F”’s.

These findings are frankly alarming.

These law firms by a ratio, roughly of 10 to one, love to work on cases making climate change worse, adore helping the fossil fuel industry and are super keen lobbyists for the destruction of the planet. That really must stop.

There is no case for the defense. There really isn’t one.

THE CASE FOR THE PROSECUTION

Let me tell you what the case is for the prosecution. Every coal mine, every oil well, every gas pipeline, every petrochemicals plant is supported by a web of legal contracts. The law firms make all that activity possible, not only because they structure the contract so that for example, you can leak contaminated water and escape liability, but they also help orchestrate the financing of all these businesses, in other words the infrastructure, the acquisitions, the refinancings of fossil fuel and other harmful assets.

To give you a quick example from Asia, Allen & Overy, Milbank, Norton Rose and Sherman and Sterling, all of them advised on the financing of a huge coal plant in Indonesia – a $4.3 billion project – notwithstanding the fact that all these lawyers could see that thousands of people in Jakarta were protesting the project because of its local public health impacts (so all the local pollution it releases) as well as its global impact on climate change.

But what did they do about it? Absolutely nothing. On the contrary, they probably worked into the documentation protections for that central Java coal-fired power plant against future liabilities.

LOBBYING

Law firms also send lobbyists to Washington, D.C., to Brussels, to Tokyo, to advance and push for the fossil fuel industry’s agenda with politicians and with agencies. That’s an expensive activity. Companies pay a lot of money for that lobbying. These guys just take it on enthusiastically. That’s including keeping in place trillions of subsidies for fossil fuels, getting liability shields in place so that the “polluter pays” principle does not apply – in other words, so that their clients can pollute at will and leave that for future generations to clean up – and to block legislation that would limit emissions.

I’ll give you an example of this and how it’s applied in practice. The U.S. government says there are 2 million abandoned, unplugged oil and gas wells. These release methane and pollutants every day. Those who abandoned them did not pay for their clean-up. It’s the communities that live around them that are paying for their clean-up. Why did the oil and gas companies that built these wells, why did they get away with just leaving without cleaning after themselves? A big reason is lawyers diluting liability laws. And we’re talking about hundreds of millions of dollars In fees for these law firms. And obviously all that money is clouding their judgment. They’re only thinking about the money. They’ve dropped their moral compass, their ethics, their responsibilities as citizens, and as members of society. It’s just incredibly disappointing. They should be ashamed of themselves.

DAKOTA ACCESS PIPELINE

The Dakota access pipeline is a perfect case study of the role that law firms play in the development of a destructive fossil fuel infrastructure project which no one needs. All these lawyers know that there has been massive protests against the Dakota access pipeline. I mean that pipeline threatens indigenous heritage, puts tribes’ water supply at risk, it transports half a million barrels of oil per day and it gives a lifeline to so many companies that frankly shouldn’t be around anymore. But at least eight of the top 100 law firms in the U.S. actively supported the developers of the Dakota access every step of the way. They helped secure financing, they lobbied for the oil companies behind the project, they accessed the courts constantly to put people in jail, fight protestors and fight environmental protections. And what they do is they basically buy the fossil fuel industry time.

That’s time that we don’t have, and they know that. But their fees are so blinding them that the lawyers are actually advertising their involvement in these projects.

There’s a partner at Norton Rose who says in his online biography that he also represented a consortium of energy companies that constructed the controversial Dakota access pipeline “successfully defeating attempts in the U.S. District court for the District of Columbia to enjoin the construction of the pipeline”.  That’s in this guy’s bio on the Norton Rose website. What’s that “enjoy” about anyway? I mean, I had to look up that word.  What it means is to stop people from doing something by issuing an injunction. So in other words, this partner is advertising the fact that Norton Rose not only represented the energy companies that are trying to build (but thankfully, now we know that they won’t), the Dakota access pipeline, but he also defeated attempts in court to stop that construction. Now, of course, President Biden thankfully put a stop to that pipeline, which I very much hope is going to be permanent, but Norton Rose for sure collected all its fees. And this particular partner is quite happy, in 2021 and in the middle of both a global pandemic and a climate emergency, to advertise his services on the back of that shameful track record.

Remember that law firms choose their clients. They don’t really have an excuse.

Law firms can also withdraw from representation based on any good cause. They don’t have to take on these mandates.

In addition, their own legal ethics require them to disclose when a client’s actions may result in reasonably certain death or substantial bodily harm. Now surely they can put one and one together and understand that by promoting the expansion of fossil fuels, they are promoting client’s actions that may result in reasonably certain death? Surely they can see that?

ABOUT THE RIGHT TO HAVE LEGAL REPRESENTATION

To be clear, I’m not objecting to the concept of the right to have legal representation. The fossil fuel companies can always find a lawyer, and in any case they have big in-house legal teams. Law firms representing them isn’t actually advancing anyone’s access to legal representation. That’s not what the law firms are doing. What they’re doing is they are closing their eyes, collecting the checks and clean water, the environment, the climate and public health be damned.

WHAT SHOULD BE DONE

Here are some of the general rules that should be put in place.

First, just like the banks, just like the insurance companies, no more hypocrisy please. All these law firms advertise how responsible they are, their sustainability credentials and the bla, bla, bla, is endless.

I’ll give you an example. Slaughter and May, the global law firm, announced that it has ambitious new targets to reduce the impact of climate change and committed to set science-based targets aligned with the requirements of the Paris agreement. Then it put out a press release about that, and this features prominently in how it presents itself.

This is complete greenwashing: Who cares about the carbon footprint of a law firm that doesn’t manufacture anything? It’s not material in any way whatsoever compared to its lawyers working on just one transaction to expand oil and gas production. So the very same firm is doing all it can to live up to its name and slaughter the planet.

That hypocrisy has got to stop.

People have to be consistent about their climate action.

Second, the law firms can commit to rejecting new fossil fuel industry clients, new petrochemical clients, polluters of plastic that are not hiding any of it. I mean all that data is public. Law firms should phase out current fossil fuel clients, as they can. They have an obligation to disagree with business models that condemn future generations to endless disaster and displacement.

At the moment, there’s only four law firms out of the top 100 that do that. So in other words, 96% don’t.

Frankly enough is enough.

Importantly, law firms rely on talent and I have a message for that talent: Ask who your law firm’s clients are. Be inquisitive. Be cynical. Don’t go to work for law firms that have zero morality and no moral compass, even if you think everyone is entitled to be represented by a lawyer.

For those currently employed by these law firms, make an effort from inside your law firm to change your employer. In any case, I think you’re going to have to, because legal firms that refuse to drop fossil fuel clients are going to face recruitment challenges, just read the tea leaves.

Don’t let the law firms, or for that matter banks, insurance companies, accounting firms, and other service and finance providers change you into a robot thinking only about billable hours, even if it’s the devil you’re sending an invoice to.

To everyone else, including the companies making net zero commitments; the countries making net zero commitments; the development finance agencies; the multi-lateral agencies: You should scrutinize your lawyers’ credentials before hiring them. If they are advising on the destruction of the planet, you should just take them off your approved lists because otherwise you are not being consistent in your approach to fighting climate change.

That is probably the biggest lever we have to change these law firms’ behavior and remind them of their own codes of conduct.

CHANGING MY MIND

As you can see, I changed my mind.

Initially this episode was going to be about service providers like accounting firms, consultancy firms and rating agencies.

I thought initially law firms would not be included. I changed my mind so completely that almost the entire episode is about law firms, and very little is about accounting firms, consultancy firms and rating agencies.

The reason for that is law firms are pervasive.

They are everywhere.

They write everything for everything.

And that’s why they need to dig deep, get that moral compass out, and start using it again.

The others of course also have their responsibilities.

Accountants, for example, should stop signing off on fictional financial statements that are not a reflection of the financial condition of their clients because climate risk has been forgotten.

Similarly, rating agencies cannot keep rating bonds as if we’re still in the 1960s.

There is a climate emergency out there, and I’m not sure they’ve noticed.

Finally consultants must undertake a very broad analysis of the environmental risks and climate risks associated with the reports that they write.

Things are changing.

Things have to change.

Things need to change faster.

Law firms in particular, not only have enormous responsibility, but also carry the critical tools that are needed to solve the climate change problem and fight back in a climate emergency.

I hope they’re listening and I hope they’ll take action.

If they aren’t, then I hope new law students, graduates and existing lawyers will engineer a change from within.

So much is at stake and lawyers and law firms can do so much better.

But we can’t just count on the lawyers changing the law firms. We have to push in that direction as well. Companies hiring law firms, governments hiring law firms, development finance institutions, hiring law firms, lenders hiring law firms, banks and insurance companies that mean it hiring law firms, consultants that mean it hiring law firms, everybody should scrutinize their credentials, everybody should stop hiring law firms that contribute to the destruction of the planet.

Thank you so much for listening to this Episode 46 of the particularly Angry Clean Energy Guy and have a wonderful couple of weeks.