World Environment Day Q&A with Richard Lord KC

10/06/26

You were involved in Climate Change Liability (Transnational Law and Practice) back in 2011, what drew you to that project initially, and what has surprised you most about how climate litigation has developed over the past decade?

I had been concerned by the potential impacts of climate change, in a purely personal capacity, since the late 1980s. One of my oldest friends is James Cameron who pioneered the approaches that led to the 1992 United Nations Framework Convention on Climate Change. But my training and experience as a lawyer from my earliest days at Brick Court was as a tort lawyer (and specifically in a shipping law context). It was a case called Fairchild v Glenhaven which first set me thinking about the potential application of tort law to liability for damage caused by climate change. That case was about something completely different which is the approach when a sufferer from mesothelioma had been exposed to asbestos from multiple different employers. It was a case in which Sydney Kentridge appeared as advocate. He is someone I did and still do admire and respect, as a person and as an advocate, more than anyone else I can think of, and one of the many good things about joining Brick Court was that he was a member of it.   It made me think about one of the principal issues in liability for climate change, which is how to attribute liability as a matter of causation when climate change is caused by a very large number of separate actors, some with relatively large contributions and others with very small contributions. That thinking led to me holding my first seminar here at Brick Court on the possibility of such liability, in February 2004. The audience of mainly city solicitors listened politely, but I think they thought that I was completely barking suggesting the possibility of such liability. Of course in the 20 odd years since, climate change litigation has become enormously significant and that same issue considered then remains highly relevant now. I would not be so bold as to say that I was the first person to think along these lines, but there were few doing so in 2003. I found that by speaking quite a lot about a subject which not many other people knew about made me appear an expert. When I volunteered my services in an entirely general way to Oxfam, thinking that they might ask me to make the tea or lick envelopes, I started a wonderful working relationship with their general counsel Joss Saunders, who remains a close friend and colleague to this day. He, together with his counterparts at Greenpeace and WWF, suggested that an objective textbook on comparative laws relevant to climate change liability might be useful.  I was one editor; another was a solicitor at what was then Herbert Smith. This became the book that was launched at the Durban COP in 2011. It is contents were and are available free of charge, but it has become very out of date due to the huge increase in volume and different types of climate change litigation since.

You recently co‑authored Lexis’ updated practical guide on climate change litigation, launched alongside COP30—what were the key developments or trends you felt most important to capture in this latest edition?

This is such a vast subject that it is difficult to summarise what I think of as most important. Initially the law on climate change was seen as basically a branch of regulatory law or judicial review with public law challenges to laws or policies. These were sometimes made by civil society and sometimes by industry. Quite quickly the notion of liability in tort also developed. By about 15 years ago the concept of framing rights and obligations in terms of human rights also became prevalent. For me the most important though developments have been the weaving together of these different types of laws to apply in different circumstances and under different systems of national laws, as well as developments under international treaty law and customary international law. Also of interest is the emergence of important cases from what is seen as global South nations such as Colombia as well as those seen as northern jurisdictions, whether under common law systems such as in England or New Zealand, or civil law systems such as in the Netherlands and Germany. There have also been developments in all of climate change itself, the science of attribution, and revise thinking in the law, to suggest that the problem of causation is not as big an issue as was once thought, even though it remains alive issue, in different senses, in different types of case.

Action4Justice, whom you work very closely with, places a strong emphasis on supporting vulnerable and marginalised communities—why is this focus so critical in environmental litigation?

Action4justice is a not-for-profit registered in the Netherlands supported by an English registered charity. I am currently chair. It seeks to provide resources to vulnerable and marginalised communities to enable them to make legal intervention in relation to issues on environmental damage,  human rights violations and climate change damage. This aligns with some of my current caseload which are for such communities and against UK based companies with subsidiaries operating in the extractive sector overseas. The question is really one of my personal philosophy rather than legal analysis, and there is plenty of environmental litigation which does not involve these communities. But for me it is important for a number of reasons. First, these sort of communities are those who typically suffer the most as a result of activities such as mining, oil and gas production, logging, and large infrastructure projects. These projects tend to occur in poorer areas rather than wealthier ones. Secondly, these groups are the least able to access justice themselves. There are many extremely brave, competent and determined lawyers acting pro bono for these communities, but often this type of case needs transnational solutions as the issues are transnational in nature. Thus in terms of knowledge and financial resources, support is particularly needed. There is  a third reason which is that in general indigenous communities and rural subsistence farmers have been much better guardians of the environment and the land they have occupied for hundred of years than those who seek to extract resources and profit from it. Given the inequality of arms in most legal processes, I think that support for the rights of such people and communities is essential