12. What do law students do in a climate clinic?

Our research into legal clinics with an environmental purpose across Australia^[1] indicates a plurality of approaches to CLE that can be used for a climate clinic. The programs considered include:

• Australian National University: Environmental Law Clinic with a placement at the Environmental Defenders Office (‘EDO’) (ACT)
• Bond University: Climate Sustainability Clinic
• Monash University: Climate Justice Clinic
• The University of Queensland: Clinical Legal Education with a placement at the EDO (QLD)
• The University of Sydney: Public Interest Law Clinic with a placement at the EDO (NSW)
• The University of Melbourne: Sustainability Business Clinic
• University of New South Wales: Land and Environment Court Clinic with a placement at the Land and Environment Court of NSW

From within this list of clinics we identified three explicit, in-house or non-placement-based climate clinics, at Bond University, Monash University and the University of Melbourne. These three clinics share many similarities, especially with respect to their mission, goals and the CLE pedagogic approach, all described earlier. But each of these climate clinics has been designed and seeks to expose students to different legal skills and career directions. Through this chapter we hope that students can see the potential of CLE for the climate, and for those students enrolled in a climate CLE to understand how and why they are being taught as they are. For students who wish to advocate for a climate clinic subject within their law school, these are models that they could present.

In this section we focus on the unique features of three climate clinics, recognising that there are no hard divisions between the types of clinics that the three featured clinics represent. The details we provide help explain the different ways a climate clinic can do CLE for different types of clients, using different areas of law and legal skills.

Bond’s Climate Sustainability Clinic (a climate policy and advocacy clinic)

A policy and advocacy clinic is a model of CLE where students typically seek to activate for legal change in the public and to governments. These types of CLE have been described as training grounds for social change advocates.^[2] The clients are typically representative groups and public advocates, and rarely do these clinics provide individual legal assistance.^[3] In some instances, there is no traditional client at all. Rather, students do work for the public interest under the name and leveraging the status of the clinic. They might write law reform submissions for the clinic or produce policy briefs in the same way as university research centres or privately funded research institutes. Indeed, for those universities with research centres on the environment or climate, there is scope for law students in a climate clinic to collaborate with the research centre on the development of climate legal material.

This is similar to what has occurred at Bond University. The Bond model involves a small group of students each semester co-designing with their academic supervisors climate policy and advocacy projects, including projects directed at improving the university’s sustainability performance and to educate university staff on climate governance and regulation.

Students work during a nine-week period on a research-based project with self-designed outcomes and a plan for achieving those outcomes. The skills foci of the clinic are legal research, problem framing, policy development, advocacy planning and performance, and strategic thinking. The goal of the clinic is to effect policy change, especially at the university level, with students plying public advocacy skills in a closed and safe space.

Monash’s Climate Justice Clinic (a climate litigation clinic)

Litigation clinics are one of the most familiar types of CLE, very common in the United States, and address disputes about and over the environment.^[4] In the United States, student legal practice rules from state to state generally permit supervised law students to act as lawyers for clients, but this is less common elsewhere. In Australia, students cannot provide legal advice,^[5] and they can only appear in court on behalf of a client with leave of that court.

Within a litigation clinic, law students assist in the preparation of a case headed for a court or tribunal. In some instances, and especially in small courts or tribunals, students act as a client advocate. In a litigation clinic there will be a clear and direct client — the person or group that is a party to a case.

Litigation clinics have been criticised^[6] because they show to students only part of the role of the lawyer, especially because most lawyers will never become litigators and certainly not immediately upon graduation. These clinics also represent only part of the community of legal need, because many members of the community will not want, and even with pro bono legal support find it too difficult, to litigate their legal problem. Yet strategic climate litigation can achieve a high level of public awareness and is an established part of the toolkit of climate justice actions.

Monash University’s climate clinic was conceived as a climate litigation clinic. In its first iteration, it was run in partnership with Environmental Justice Australia and students worked on climate litigation cases for that CLC.

This initial focus on litigation has broadened to refer to students engaging in a wide range of commercial legal work over a 14-week clinical period alongside environmental organisations, barristers and community groups.^[7] The clinic has also sought philanthropic support to employ an in-house climate litigator, which would be novel for Australian CLE programs.^[8]

In the absence of a permanent in-house lawyer, students are supervised by external lawyers seconded from firms. They are supported by a seminar program delivered by university lecturers and speakers representing non-government organisations involved in climate justice and climate litigation topics. The work completed by students is more varied than litigation preparation. Students write legal memorandums and letters of advice, and complete legal research and prepare reports^[9] for community clients in the areas of public law, administrative law, human rights, environmental law and planning law.

Melbourne’s Sustainability Business Clinic (a transactional climate clinic)

A transactional legal clinic is often presented as the other side to the litigation clinic. Transactional clinics provide legal assistance to individuals and enterprises, generally for the greater good of the community or to advance local economic development. Their clients are typically small and use business approaches as a way to achieve their goals. The earliest forms of transactional legal clinics were designed to help people use the law to have secure housing.^[10] While some transactional clinics are now supporting startups and entrepreneurs, most maintain their original community development focus.^[11]

Within a transactional legal clinic, the clients will be varied, as will the legal issues and legal doctrine that they and the students encounter. Students will perform legal research and advice work, engage regularly with a client, and sometimes prepare documents for their clients under the supervision of experienced lawyers. A transactional legal clinic is less likely to send students to an organisation on an externship or placement, rather to be run in-house.

The University of Melbourne’s Sustainability Business Clinic was set up with the objective of providing legal assistance to the community renewable energy sector and clients within the new (carbon neutral, circular) economy as they set up, grow and encounter regulation.^[12] Its most frequent client has been Hepburn Energy, where students have worked on matters as varied as share arrangements, energy market access rules, property transfers, carbon farming and planning laws for solar farms.^[13] The Sustainability Business Clinic supports clients trying to achieve a positive community climate or environmental outcome by using the law without going to the courts.

The students’ 12 weeks of clinical work are supported by a 10-week teaching program on ‘new’ or ‘fourth generation’ environmental laws’,^[14] the ethics of climate lawyering and the laws of the ‘green economy’. Students are supervised by lawyers from a dedicated firm^[15] and mentored in-house by a university staff member.