CLIMATE CHANGE law, once considered by some in the legal world to be a passing fad, is now being taken very seriously by an increasing number of law firms.
Browse the websites of the big law firms and you’ll see that most now claim to have expertise in the field of climate change, but they haven’t all taken the same approach to setting up climate change practice groups.
Baker & McKenzie, generally considered to be at the forefront of climate change practice in Australia, has had a dedicated climate change practice group in Sydney since 2000. Partner Martijn Wilder heads up a team of 12 lawyers, who are dedicated climate change specialists.
“Lawyers who come to Baker & McKenzie to be a climate change lawyer have expertise in climate change or renewable energy law. They’re not an environment lawyer doing it, they’re not a financial lawyer doing it, they do [climate change law] full-time,” he said.
Andrew Beatty, also a partner at Bakers, believes that the group benefits from the breadth of experience of its lawyers.
“The lawyers that we’ve got in the group have not only got legal experience in the area of climate change, but some of them also come from a policy background concerned exclusively with climate change.
As examples, he used partner Paul Curnow who
held a very senior position at the Australian
Greenhouse Office in Canberra prior to joining the team, and Wilder himself, who is on the premier’s advisory panel on climate change.
Wilder also believes the firm’s international presence is a big advantage for Bakers’ group.
“We often have deals that involve five or six jurisdictions and our global team just kicks in. We have virtual teams that do that all the time. And it works for us. It’s an ideal practice area for a firm like Bakers, which is very international,” he said.
Other big firms, such as Freehills, Minter Ellison and Allens Arthur Robinson, have gone down a different route, taking what Freehills partner John Taberner describes as a “cross disciplinary” approach. All three firms have drawn together teams of lawyers from across a number of practice areas to form what could be described as “virtual” climate change teams. Though it varies from firm to firm, the lawyers primarily come from the firms’ environment, corporate and energy and resources groups, but also from litigation, finance, tax and infrastructure.
According to Tabener: “It makes sense because the issues here are out of the box. They’re not traditional so you need to have an innovative and non-traditional approach. But not just one that’s reactive — it has to be positively designed to address this new combination of issues.”
Duncan McGregor, partner in Minter Ellison’s environment and planning group, agrees with this approach. “Although I do a significant amount of climate change work, I wouldn’t profess to have to appropriate tax experience so we’ll bring in tax advice as appropriate to any particular deal or advice,” he said.
There are 14 partners in Minter Ellison’s climate change team which was officially established in 2006. However, according to McGregor a number of the partners have been working in the area for the last decade. “Certainly some of the work we’ve been doing in projects and advice goes back to 1997—98,” he said.
Similarly at Allens Arthur Robinson, the 10-partner team has been drawn from various other practice groups from across the firm’s Australian and Asian offices.
Grant Anderson, a partner in the firm’s energy and resources group, said: “The people who do that work are not dedicated to climate change, but we have a focus. We’re developing a group with expertise in the climate change area, so that if there are issues then we know who to deal with.”
While the group was only formally put together quite recently, Anderson explained that like Minters, some of the lawyers involved have been practising in the field for much longer. “For example in renewable energy projects I’ve certainly been involved in establishing and drafting the contracts. And to do that you need to understand the clean energy regimes like VRET and the NSW greenhouse gas abatement scheme. That’s just part and parcel of advising on and drafting the contracts for these types of projects,” he said.
Like Wilder, Anderson believes that a firm’s international connection are advantageous for climate change practice groups — climate change being a global issue which is governed to a considerable extent by international rules, particularly those under the Kyoto Protocol.
“That’s why we have our international offices involved. Our Chinese offices have already been involved in advising on a couple of potential clean development mechanism (CDM) projects, and that was even prior to ratification [of the Kyoto protocol],” Anderson said. “I expect that sort of work will increase, particularly in China which is a major generator of projects under the CDM. That’s certainly an area that I would like to see grow.”
McGregror agreed: “We’re very well placed to assist clients who are interested in CDM because of our offices in Hong Kong and China. Our ability to link to china is a real advantage.”