Mainstreaming climate change in legal education

ABSTRACT

Climate change is one of the most pressing issues facing society today. Emerging legal professionals need to be equipped with the knowledge and skills required to respond to the challenges posed by climate change. This foundational education needs to commence during law school and be seamlessly integrated into the curriculum of all relevant law courses. The traditional law curriculum aims to educate students in three key areas: substantive law, adjective law and the practice of law. Each of these areas can be reformed to mainstream climate change in legal education. For substantive and adjective law, the inclusion of climate change materials within course curricula raises students’ consciousness of the climate crisis. Climate change litigation has tested the boundaries of both substantive and adjective law, creating valuable educational case studies. For the practice of law, there is a need to teach the craft of lawyering, how to translate substantive and adjective legal knowledge into effective legal practice. I suggest the incorporation of six skills of legal thinking into law school curricula, alongside teaching of effective oral and written communication skills. These tools are essential for lawyers to navigate the legal landscape effectively in the face of the climate crisis.

KEYWORDS:

• Substantive law
• adjective law
• practice of law
• legal thinking
• climate conscious lawyering

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Fisher (2013), pp 347–354.

2 Callon (1998), p 260, as quoted in Fisher (2013), p 350.

3 Fisher (2013), p 350.

4 Fisher (2013), p 351.

5 See, for example, Galloway, Shircore, Corbett-Jarvis and Bradshaw (2012) regarding incorporating sustainability into the first year of the undergraduate law degree offered at James Cook University and Graham (2014) who argues for embedding sustainability in legal education.

6 United Nations, ‘Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting’ https://press.un.org/en/2019/ga12131.doc.htm, 28 March 2019.

7 See Dernbach (2011) p 492, who calls for law schools to play a leading role in the global effort to achieve sustainability.

8 See Bouwer, John, Luke and Rozhan (2023), who argue that ‘climate change education should be compulsory and assessable content across the core law curriculum’ (p 241).

9 See Graham (2020).

10 Ireland-Piper and James (2021), pp 343–349 summarise climate change law subjects and programmes offered at Australian law schools.

11 Levy (2019), pp 516–522.

12 Legal Profession Uniform Admission Rules 2015 (NSW) (‘LPUAR’) r 5 and Schedule 1.

13 LPUAR, cl 5(1)(c).

14 LPUAR, Sch 1.

15 Batros (2021), pp ii-iii.

16 Bleby and Foerster (2023), p 626.

17 For example, the College of Law’s five compulsory subjects include Lawyer’s Skills and the practice of civil litigation, property law and commercial and corporate practice. See College of Law, ‘Coursework’ <https://www.collaw.edu.au/learn-with-us/our-programs/practical-legal-training-programs/coursework>.

18 Llewellyn (1940), p 1392.

19 Schwartz (2013), p 26.

20 Ireland-Piper and James (2021), p 320.

21 Galloway (2011), p 119.

22 Galloway and Graham (2023), p 336.

23 Graham (2014); Graham (2020); Graham (2021).

24 Galloway (2015), p 32.

25 Galloway (2015), p 32.

26 Galloway (2015), p 31.

27 Galloway (2023), p 31.

28 Levy (2019).

29 Graham et al (2024).

30 Dehm and Graham (2024).

31 Galloway (2015).

32 In Australia, judicial review cases include Gray v Minister for Planning (2006) 152 LGERA 258; Walker v Minister for Planning (2007) 157 LGERA 124, overturned in Minister for Planning v Walker (2008) 161 LGERA 423; KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) (2020) 247 LGERA 130; KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc and Another (2021) 250 LGERA 39; Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1 and Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221. In New Zealand, judicial review cases include Thomson v Minister for Climate Change Issues [2018] 2 NZLR 160 and Smith v Fonterra Co-Operative Group Limited [2020] 2 NZLR 394; Smith v Fonterra Co-Operative Group Limited [2022] 2 NZLR 284; Smith v Fonterra Co-Operative Group Limited [2022] NZSC 35; Smith v Fonterra Co-Operative Group Limited [2024] NZSC 5.

33 In Australia, merits review cases include Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257 and Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

34 For administrative law cases elsewhere, see Preston (2009), pp 178–183; Preston (2011), pp 244–256 and Preston (2018a), pp 782–787.

35 Air pollution cases considering constitutional rights include M.C. Mehta v Union of India and Others 1987 SCR (1) 819; M.C. Mehta v Union of India and Others (1997) 2 SCC 35; Farooque v Government of Bangladesh WP 891 of 1994; Prakash Mani Sharma v His Majesty's Government Cabinet Secretariat WP 3440 of 2053 and Mansoor Ali Shah v Government of Punjab (2007) CLD 533.

36 Climate change cases considering human rights include Asghar Leghari v Federation of Pakistan WP 25501 of 2015; Juliana v United States 217 F Supp 3d 1224 (D Or, 2016); The State of the Netherlands v Urgenda Foundation (ECLI:NL:GHDHA: 2018:2610);The State of the Netherlands v Urgenda Foundation (ECLI:NL:HR:2019:2007) and Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33; Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

37 For environmental rights cases, Preston (2018b), p 131; Pau de Vilchez and Savaresi (2021), p 3; Preston (2024a); Preston (2024b) Warnock and Preston (2023), p 47 and Preston and Silbert (2023). For a comparative analysis of judicial application of constitutional environmental provisions in European climate cases, see Hellner and Epstein (2023), p 207.

38 Cases involving corporations’ duties include People of the State of New York by James v Exxon Mobil Corporation 65 Misc. 3d 1233(A) and Milieudefensie et al v Royal Dutch Shell plc (ECLI:NL:RBDHA:2021:5337). For a further discussion of corporations’ duties and cases elsewhere, see Hutley and Hartford-Davis (2016); Hutley and Hartford-Davis (2019); Hutley and Hartford-Davis (2021); Preston (2018c), pp 780–781 and Preston (2021a), pp 239–247.

39 See, for example, Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021 (NZ) which mandates climate-related disclosures from January 2024; the United States’ SEC rule issued in March 2024 which requires registrants to provide climate-related disclosures; and the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 introduced to the Australian federal Parliament by the Government in March 2024 which, if passed, will mandate certain companies to disclose their material financial risks and opportunities, amongst other requirements.

40 See, for example, State of Connecticut et al v American Electric Power Company et al 406 F.Supp.2d 265 (S.D.N.Y, 2005), overturned in State of Connecticut et al v American Electric Power Company et al 582 F.3d 309 (2nd Cir, 2009) and again in American Electric Power Company et al v Connecticut et al 564 U.S. 410 (2011). See further cases discussed in Preston (2018a), pp 774–777.

41 Sharma v Minister for the Environment (2021) 248 LGERA 330 (Federal Court of Australia), overturned in Minister for the Environment v Sharma (2022) 291 FCR 311 (Full Federal Court of Australia).

42 Unsuccessful in Smith v Fonterra Co-Operative Group Limited [2020] 2 NZLR 394 (NZHC) and Smith v Fonterra Co-Operative Group Limited [2022] 2 NZLR 284 (NZCA); but successful in Smith v Fonterra Co-Operative Group Limited [2024] NZSC 5, in which the Supreme Court overturned the Court of Appeal’s decision and allowed the trial to proceed.

43 See generally on the influence of climate change litigation, Osofsky (2010), pp 3–29; Preston (2011b), pp 485–513; Preston (2021b), pp 1–32; Preston (2021c), pp 227–256; and Preston (2023b), pp 1–7.

44 See, for example, Feldman (1989), p 498; Edwards (1992), p 34; Burrows (2017), pp 29–46; Burrows (2021) and Stapleton (2021) Ch 1.

45 Burrows (2017), p 5.

46 Stapleton (2021), p 2.

47 Edwards (1992), pp 42–43.

48 Hutley and Hartford-Davis (2016); Hutley and Hartford-Davis (2019); and Hutley and Hartford-Davis (2021). For a discussion of directors’ duties in relation to climate change in Asian jurisdictions, see Lim and Varotill (2022).

49 LPUAR, Sch 1, 8. See also Sellick and Lowther (2009), who contend that ‘[i]ncorporating sustainability into the company law syllabus, specifically in relation to corporate governance, enables greater consideration of the social and economic facets of sustainability’. The same can be said for climate change.

50 Boyd (2022), para 43.

51 Bedford, McAvoy and Stevenson-Graf (2021), 395.

52 ‘Understanding Human Rights and Climate Change’ Office of the High Commissioner for Human Rights (submission to the 21st COP, 27 November 2015), p 2.

53 The World Bank, ‘Social Dimensions of Climate Change’ https://www.worldbank.org/en/topic/social-dimensions-of-climate-change.

54 For discussion on the broader impacts of climate change on human rights law, and other areas of law, see Ireland-Piper and James (2021), pp 339–342.

55 Llewellyn (1960), p 7.

56 Llewellyn (1960), p 7.

57 Llewellyn (1962), p 10.

58 Llewellyn (1960), p 7.

59 Llewellyn (1960), p 7.

60 Juliana v United States 947 F.3d 1159 (9th Cir. 2020).

61 Minister for the Environment v Sharma and Others (2022) 291 FCR 311 (Full Federal Court of Australia).

62 New Zealand case of Smith v Fonterra Co-operative Group Limited [2022] 2 NZLR 284 (NZCA) affirming New Zealand case of Smith v Fonterra Co-operative Group Limited [2020] 2 NZLR 394 (NZHC). This was overturned in Smith v Fonterra Co-operative Group Limited [2024] NZSC 5, allowing the trial to proceed.

63 Massachusetts v Environmental Protection Agency 549 U.S. 497 (2007).

64 Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257.

65 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

66 Minnerop and Otto (2020), p 49 and Marjanac and Patton (2018), p 265.

67 Neubauer et al v Germany, Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2656/18.

68 Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1.

69 Asghar Leghari v Federation of Pakistan PLD 2018 Lahore 364 (Lahore High Court Green Bench, WP No 25501/2015, 14 September 2015).

70 LPUAR, cl 11(m).

71 Llewellyn (1962), p 318.

72 Llewellyn (1962), p 318.

73 Llewellyn (1940), p 1392.

74 Llewellyn (1950), p 563.

75 Llewellyn (1950), pp 566–567.

76 Ireland-Piper and James (2021), p 327.

77 See, for example, University of Sydney’s LAWS1006: Foundations of Law 2024 unit information https://www.sydney.edu.au/units/LAWS1006; Australian National University’s LAWS1201 Foundations of Australian Law (2024) https://programsandcourses.anu.edu.au/course/laws1201; Macquarie University’s LAWS1000 Foundations of Law (2024) https://unitguides.mq.edu.au/unit_offerings/163904/unit_guide,

78 See James (2012), which seeks to provide assistance to law schools and legal academics in teaching ‘thinking skills’, including legal reasoning.

79 Fuller (1978), pp 364, 367 and 369 and Fuller (1960), pp 1–3, 5.

80 See, for example, Brewer (2022), pp 281–339. See also Aldisert, Clowney and Peterson (2007) in which the authors argue that ‘thinking like a lawyer’ means employing logic to construct arguments (cited in James (2012) p 77) and discusses deductive, inductive and analogous reasoning skills which should be taught to law students.

81 Warnock (2020), p 5.

82 See, for example, Preston (2023b).

83 Fisher (2021a), p 852.

84 Fisher (2021b), p 235–236.

85 Fisher (2021a), p 852.

86 Del Mar (2017), p 174.

87 Galloway, Shircore, Corbett-Jarvis and Bradshaw (2012) p 8.

88 Graham (2014), pp 409–413 and 417–419.

89 Fisher (2012), p 50.

90 Galloway and Graham (2023), p 337.

91 Fisher (2009), p 239.

92 See Dernbach (2011) pp 502–503 who similarly argues that one of the skills lawyers need for sustainable development is to be able to work across a range of legal systems (local, state, national and international).

93 Preston and Hanson (2013).

94 See Preston (2021a), pp 247–255; Preston (2023b) and Affolder (2019), pp 187–212.

95 Galloway (2023), p 29.

96 LPUAR, cl 13.

97 Preston (2018c), p 257.

98 Preston (2021a), p 51.

99 Preston (2021a).

100 Preston (2021a), pp 52–54.

101 The Law Society ‘The impact of climate change on solicitors’, https://www.lawsociety.org.uk/topics/climate-change/impact-of-climate-change-on-solicitors; NSW Law Society ‘Climate Change Practitioner Guidance’, https://www.lawsociety.com.au/sites/default/files/2024-02/LS4037_PAP_ClimateChng-PracGuide2024-Publication-Only_2024-02-23.pdf.

102 Preston (2021a), pp 54–59.

103 Preston (2021a), pp 59–61.

104 Vaughan (2023), pp 6–27.

105 Vaughan (2023), pp 28–32.

106 Bathurst (2019).

107 Parker (2004), p 61.

108 Preston (2021a), pp 61–63.

109 Preston (2021a), pp 63–66.

110 Baron and Corbin (2012), p 52.

111 Baron and Corbin (2012), p 52.

112 Hutchinson (1999), p 48.

113 See, for example, in the United Kingdom the ‘Declaration of Conscience’ by Lawyers Are Responsible and signed by more than 120 solicitors and barristers, https://www.lar.earth/sign/. Some of the barristers have self-reported to the Bar Standards Board for breaching the cab-rank rule: Michael J Beloff KC (2023).

114 Edwards (1992), p 38.

115 See UNESCO (2006), which lists oral and written communication in the list of skills which are essential for sustainable development.

116 Llewellyn (1960), p 112.

117 Ireland-Piper and James (2021), p 327.

118 Fisher (2021a), pp 148–149.

119 Fisher (2021a), pp 148–149.

Additional information

Notes on contributors

Brian Preston

Brian Preston is the Chief Judge of the Land and Environment Court of New South Wales. Prior to being appointed in November 2005, he was a senior counsel practising primarily in New South Wales in environmental, planning, administrative and property law. He has lectured in post-graduate environmental law for over 30 years. He is the author of Australia’s first book on environmental litigation and over 150 articles, book chapters and reviews on environmental law, administrative and criminal law. He holds numerous editorial positions in environmental law publications and has been involved in a number of international environmental consultancies and capacity-building programs, including for judiciaries throughout Asia, Africa and the European Union.

Brian Preston is an Official Member of the Judicial Commission of NSW, Fellow of the Australian Academy of Law, Fellow of the Royal Society of NSW and Honorary Fellow of the Environment Institute of Australia and New Zealand. He was awarded a Doctor of Letters (honoris causa) by Macquarie University in 2018 and a Doctor of Laws (honoris causa) by Western Sydney University in 2022. He is a member of various international environmental law committees and advisory boards, including serving on the Governing Council and as Vice President for Oceania of the Global Judicial Institute on the Environment and Chair of the Environmental Law Committee of the Law Association for Asia and the Pacific (LAWASIA).

Brian Preston is currently a Visiting Professor at Durham University (UK), an Adjunct Professor at three Australian universities, the University of Sydney, Western Sydney University and Southern Cross University, and a former Visiting Fellow at Corpus Christi College and Magdalen College at Oxford University (UK).