The way that both private and public practitioners are approaching environmental law today reflects the collective shift that has taken place in the community about the responsibility we shoulder for the future of our world.
When the Paris climate agreement came into force last year, it heralded what many hope is a collective turning point. The long-term goal of the agreement is to keep global temperature increases below 2°C. More than 130 countries responsible for 56 per cent of the world’s greenhouse gas emissions have ratified the agreement so far.
While Australian legislators are still trying to work out how to harmonise our domestic policies with the urgency that the world’s climate change mandate demands, lawyers are drawing on collaborative efforts to ensure the impact of their advice for clients and the environment.
The change in strategy is what legal practitioners working in the environment and planning law space attribute to a trend away from litigation and an increase in the number of negotiated resolutions.
A new perspective
Brisbane lawyer Mark Baker-Jones attests that his clients are steering a new way of doing things. The DibbsBarker environment and planning law principal says that in the last five years alone, clients from both private sector and government have sought out a more collaborative approach to business.
No more so has the appetite for collaboration been as it relates to mitigating the legal risks posed by climate change.
“The knowledge that we are able to work collaboratively with both the private sector and government is very attractive to clients because it means we are able take a conflict resolution based approach rather than being forced into litigation. The results are often achieved faster and more cost effectively when we achieve them through a negotiated resolution,” Mr Baker-Jones says.
“In the climate change space in particular, none of these issues, like climate legal risk, were being considered five years ago. This has largely been driven, not by government, but by the private sector and often by shareholders, investors and insurers,” he says.
The type of climate change risks that Mr Baker-Jones’ clients may attract is indicative of the kind of businesses and projects, led by typical top and mid-tier clients: owners of expansive properties or multibillion-dollar development sites, national and international commercial companies, local councils and state governments – all concerned with things ranging from prudential risk and disclosure, as well as concerns about environmental impact and sustainability.
“There is a lot of interest, including those from government and business, and in cases concerned about environmental issues and responsibilities, and climate change,” Mr Baker-Jones says.
“From a planning and development perspective, there is an increasing focus on environmental sustainability, energy ratings, green buildings, environmental impacts, how things need to be planned for, located, and built in light of this increased scrutiny.
“We also see pressure on market share and competition in the real estate and development marketplace, driving companies to push hard on innovative building design and land use in general.”
Finding synergies and solutions
Originally from New Zealand, Mr Baker-Jones has been practising for more than 15 years. He describes the relationship between environment and planning law as being intrinsically linked because change to the legal regime in one area affects the other.
“We can’t look at them as having separate or discrete functions. Together, they comprise the legal regime that governs the management of the environment and its natural resources. That is, planning for use of those natural resources, the allocation of those resources, and the protection and conservation of those natural resources,” Mr Baker-Jones says.
Just as the two areas of law are interconnected, Mr Baker-Jones notes that the coming together of key stakeholders to address environment and planning matters is a reality of the times. He identifies the collaborative dynamic in this area of law as starting to firmly establish itself 10 years ago.
With respect to climate change, he adds that the opportunity to collaborate with stakeholders is a core motivation for the practice at DibbsBarker.
“Whereas much of our practice is based around the provision of more conventional environmental and planning legal services, one of the major innovations that we have taken on is to recognise the risks that climate change is presenting to clients. For a number of years now we have been working with clients to help them manage climate legal risk,” Mr Baker-Jones says.
“We have taken a very proactive approach, working with government at all levels and the private sector to develop solutions to the legal risks that climate change brings. This has meant working with government, academic institutions and commercial clients to develop mechanisms for managing climate legal risk.”
Adopting the same approach in his career, Mr Baker-Jones is a research fellow at Queensland University of Technology and has been appointed to an advisory board with Griffith University’s Law Futures Centre. His involvement in the field has also taken him to South Korea, where Mr BakerJones spoke about decision-making to minimise legal risk before the United Nations Environment Programme.
That work later led to a project with lawyers, academics and legal advisors about dealing with climate change risk in the Pacific.
An appetite for strategy
While his client-base has remained the same in this time, Mr Baker-Jones says that what today’s clients expect and how environment and planning lawyers work with them has evolved.
According to the lawyer, practitioners are no longer called upon to merely interpret the law or offer advice to clients when they come up against a problem. The emphasis in law firms is now squarely focused on sharing of information about changes to legal regimes and forecasting the effect those changes may have on the broader market and community.
“Lawyers need to be looking ahead and keeping clients updated on emerging trends, helping clients manage the future risks, and helping clients position themselves so that they can take best advantage of these trends,” Mr Baker-Jones says.
“Lawyers and clients should be working strategically in anticipation of new issues and managing them early. Not all clients are able to work this way, and it may take some time for trust to build sufficiently that the client is willing to allow the lawyer to become part of the strategic team, but it does pay off,” he says.
Beyond the need to deliver better value legal services quicker than ever before, a common theme across sectors and practice areas, DibbsBarker views its ability to provide strategic business advice as an important part of its value proposition to clients. Mr Baker-Jones points to the firm’s relationship with various academic institutes, government, peak bodies and interventionist groups to not only help anticipate incoming change, but often be a part of it.
“Environmental law is a complex area, and lawyers need to keep up with change and what is causing that change, and to work with the regulators and government to ensure the best outcomes for everyone,” Mr Baker-Jones says.
“Five or 10 years ago, we saw ourselves as external advisers to our clients; but now we think much more as being a part of our clients’ business, so that we share the gains and setbacks with them.”