Climate Change: Is It A Legal Issue?

• Published date: 27 July 2022
• Subject Matter: Environment, Real Estate and Construction, Environmental Law, Real Estate, Climate Change
• Law Firm: Herbert Smith Freehills
• Author: Julie Vaughan

Climate change: Is it a legal issue?

Climate change regularly grabs the headlines, but are solicitors obliged to consider its impacts for property ownership as part of their advice to buyers and lenders? Julie Vaughan considers what sort of advice might a solicitor be expected to offer

Some respected voices at the environmental law Bar now believe there is a decent prospect that a judge presiding over a professional negligence action might decide that a solicitor who has failed to point out the climate change risks involved is negligent.

The Law Society for England & Wales is soon expected to issue guidance to its solicitor members on how they should deal with climate change. It comes at a time when environmental search providers are beginning to extend their offering from contamination and flood risk reports to also include risk rankings for certain types of climate change impacts, and solicitors ordering them on behalf of clients will have to decide what to do with the new information they include. It follows a resolution on climate change already adopted by the Law Society that urges solicitors to engage in 'climate conscious legal practice'. But what does it all mean?

The expected practice note

Solicitors routinely obtain 'desktop' environmental and flood risk reports to indicate the potential for soil and groundwater contamination and for the property to be prone to flooding. These data sets form an optional part of the due diligence exercise. However, they help solicitors to identify risks and then to offer clients advice on the available protections, such as the possibility of obtaining insurance or making additional enquiries. The Law Society's expectations of solicitors in that regard are spelt out by existing practice notes of the kind that the Law Society is now understood to be considering issuing with regard to climate change. No date has been given for issue of the new practice note, nor any indication of whether it will first be made available as a draft for consultation, which it is to be hoped it will.

However, climate change is a rather unusual animal in this context:

• the impacts are widely predicted to occur unless radical action is taken to avert it, and this may affect the continued ability to insure against property damage at an affordable premium;
• the seller of a property can't rationally be expected to offer protection in the sale contract against an issue which is of a future nature affecting property generally and hence not their fault; and
• there is no related legal regime allocating responsibility with regard to climate change impacts...