A leading industry commentator recently asked me what role lawyers could possibly play in combating climate change, which really set me thinking.
First and foremost, of course, there’s an element of self-interest to be declared. Many commercial law firms such as my own have specialist energy, environmental and regulatory practices, and we benefit a great deal from increased environment compliance activity.
But, to be honest, that’s eclipsed by the business to be had working with developers and financiers to help get renewable energy schemes off the drawing board and up and running, which is where experienced and pragmatic lawyers can really make a crucial contribution.
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Declaration of interest out the way, and turning back to the question I was asked, the context was the run up to the next round of global climate talks in Peru in December, and the EU’s recent announcement of its 2030 climate and energy package.
We’re in the heady world of political maneuvering and fudge here (never an easy place for anyone with legal training, whose natural comfort zone is a place of logic, precedent and neatly drawn agreements) and let’s face it the EU is never short of either.
The 2030 package announced last week is a classic, and you need a lawyer to work out exactly what’s been agreed. The centrepiece is a legally binding commitment to reduce EU domestic GHG emissions by at least 40% (on 2010 levels) by 2030, but with some complicated concessions thrown in for coal-dependent countries, notably Poland, in the form of a chunk of free ETS carbon permits and funding. These concessions are ostensibly to promote and support power sector modernization, but the fear is they will be used to invest in new coal generation.
There is also a minimum 27% target for renewable energy by 2030, but binding on the EU only and not on its member states (no, I don’t know either, but everyone is looking at Germany for this one). And finally, there is a 27% target for improved energy efficiency (i.e., energy consumption savings), but “indicative” and so not actually binding on anyone, and reviewable in 2020 “having in mind” a 30% target.
Crystal clear, then.
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And it’s not hard to see the hand of the 海角视频 government in all of this. The 2030 40% carbon reduction target will see some leveling of the playing field, given the 海角视频 has been faced with its own self-inflicted binding targets in the Climate Change Act 2008. And by countering pressure from Germany in particular for a binding renewables target, Ed Davey has been quick to point to the flexibility now available for the 海角视频 to meet its long-range carbon targets without going hell for leather to build up the 海角视频’s renewable power generation portfolio.
But this is just a precursor to what is happening on the global stage.
The EU is looking to regain its mantle of ‘global leader’ when it comes to climate action, and sees the 40% carbon reduction target as its weapon of choice when it enters talks with the likes of China, the US, India and Brazil at Lima. However, it has to be said that the 40% target is not especially ambitious, and may lack the firepower to prevent a repeat of the Copenhagen talks in 2009 when the EU was effectively sidelined. Critically, the EU text uses the words “at least”, and so the EU negotiators may well come to the table with one or two cards up their sleeve.
This latest round of talks in Peru is merely a warm up for the key meeting next year in Paris when expectations are high for a new global climate deal. From a personal perspective, I believe a new climate deal incorporating some credible emission reduction targets on the world’s largest emitters would be a good thing. It’s needed to give a much-needed boost to carbon prices; implemented through tax or emissions trading schemes. A strong and rising carbon price will create the long term signals needed to encourage investors (with help from their lawyers, of course) to put private capital into a range of low carbon infrastructure projects.
But it’s not just about carbon reduction targets and getting the big emitting countries to play their part. There will also be an increased focus in Lima on climate change adaptation, with the hope that this will culminate next year with agreement on an international mechanism to better protect vulnerable populations against extreme weather events and rising sea levels.
Here again, the debate has introduced new issues for lawyers to grapple with, not least around the potential for legal liability for climate change impacts to attach to large carbon emitters, and the trend towards litigation as a means of cost recovery.
Having set the scene globally, I’ll look closer to home in part two of this blog and examine the role played by lawyers and the law firms for which they work in tackling climate change.
Andrew Whitehead is the Senior Partner at Birmingham and London law firm SGH Martineau LLP.