Climate Law in Practice Fireside Chats: Wendy Miles

07 Mar 2022

On 24 February, the Centre for International Sustainable Development Law, Net Zero Lawyers Alliance, and Centre for Climate Engagement hosted the second ‘fireside chat’ in a series focussed on climate law in practice. In this chat, Professor Marie-Claire Cordonier Segger was joined by Wendy Miles QC. Wendy helped set up the Net Zero Lawyers Alliance, an initiative that mobilises commercial lawyers, law firms and commercial law to help achieve climate mitigation and adaptation goals. She is an expert in international arbitration and dispute resolution with a focus on public and private international law. 

How did you start your career in climate law?

After finishing her law degree in New Zealand, Wendy went into private practice focussing on commercial litigation. Although she enjoyed commercial law, Wendy had a strong interest in public international law and travelled to India to work with an NGO on intrastate peace building. Wendy later went back to private practice and moved to London to develop her expertise in international arbitration at WilmerHale.

Despite Wendy’s significant experience in public and private law, climate change only became a key focus of her work in 2014. After attending a climate-related session at an International Bar Association conference, Wendy realised that climate change was highly relevant to her day-to-day practice in disputes arising out of investment, as investment is integral to international climate ambitions. Wendy also saw links with her experience in public law, including the importance of protecting the rights of indigenous peoples when implementing climate policy.

Image of Professor Marie-Claire Cordonier Segger and Wendy Miles QC

“Great career steps often happen by accident … but they always happen through relationships.”

 Which areas of climate law are likely to be important in the future and what skills should law students develop if they wish to work in this field?

Climate change impacts many areas of law, which will present legal challenges and opportunities for future climate lawyers. The intersection between climate change, commercial law, and public law will be particularly important for lawyers looking to help shape the transition to a net zero economy and supporting legal system.

Interdisciplinary skills are highly valuable for entering a career in climate law. Law students could seek out opportunities to learn from other fields including economics, science, and politics. One specific concept that Wendy suggested understanding is systems thinking. Though lawyers tend to drill down into finer details, tackling climate change requires big-picture changes to interconnected systems. Interdisciplinary knowledge and experience can help climate lawyers understand this bigger picture and consider the range of costs and benefits associated with different climate policies.

How might international investment law change in response to the climate crisis?

Investment treaties have historically protected economic interests above other interests, but there has been a shift towards including climate-related provisions in recent agreements. Treaties are being rewritten to amplify environmental and broader non-economic protections, but existing instruments often contain sunset provisions that can delay this process. The Net Zero Lawyers’ Alliance is examining awards under the Energy Charter Treaty and have found that only a handful mention climate change and have not found any that use climate change to inform the scope, extent, or application of investment protection. 

How do philosophy and ethics inform legal decisions in relation to climate change?

Moral judgements are inherent in legal frameworks and decisions. The law must decide how to balance competing concerns when climate action could impact environmental integrity, social wellbeing, or other key considerations. It is important that instead of narrowly focussing on emissions reductions, these other social and environmental factors are at the heart of addressing climate change.  The law plays a key role in ensuring that these rights and interests are protected – one example of this is the recognition of indigenous peoples’ rights in the Paris Agreement and Glasgow Pact, as well as the Article 6 Paris Rulebook language.

“If you just let carbon accounting replace cash accounting, you’re going to create a whole new problem.”

What can in-house lawyers do to address climate change?

 In-house lawyers should ensure that they understand the scale and complexity of the climate crisis and how it will impact their company and risk. They should consider how changing legal frameworks will impact their work in managing risk and get involved in conversations and initiatives focussed on the role of law in tackling climate change.