As political leaders converge in Paris this month to draft a global climate change pact, large U.S. law firms are also in the mix, hoping to influence the debate and drum up new business.
It marks the 21st annual meeting of the “Conference of the Parties” to the 1992 United Nations Framework Convention on Climate Change, or for short — COP 21.
The conference , which runs from November 30 to December 11, is expected to attract 45,000 participants.
Many of these will be current and potential Big Law clients. “Outside of a formal negotiating process, there’s a huge global gathering of the business community, academia, environmental NGO’s, and investors all doing their own events,” said Rick Saines, who heads Baker & McKenzie’s North America Climate Change and Environmental Markets Practice. “It’s a great opportunity for law firms to be right in the thick of it.”
Saines, based in Chicago, is leading a contingent of six Baker & McKenzie attorneys to Paris: “We have dozens and dozens of clients that are going to be there,” he said. “This is one of our major global gatherings every year.”
Law firm leaders said the climate change debate has moved slowly since early COPs in the mid 1990s — including a couple of agreements, in Kyoto and Copenhagen, once hailed as groundbreaking but now seen as failures — and much work will remain to be done after Paris.
But they also agreed the discussion seems to have reached a tipping point: “It’s unusual that 140 world leaders would attend at the outset of this meeting,” Saines said. “They don’t do that every year. It signals this is a significant COP, compared with others.”
A Changing Mindset for Clients
Lawyers said that as political consensus around the need to combat climate change has strengthened, the business community is transitioning from a defensive to an opportunistic mindset.
“Until recently private sector involvement with COPs has focused on, ‘How might this damage my business?’ and ‘How can I make money out of the carbon markets?’” said London-based Tim Baines, Of Counsel at Norton Rose Fulbright who is attending the conference.
“This now appears to be changing dramatically, with a great deal of interest and enthusiasm about renewables in particular, how they can be rolled out and how they can best be financed,” Baines said.
Aside from new opportunities, the business community has also grown tired of the legal uncertainty created by the international community’s drawn-out debate over climate change, according to Saines.
“The business community likes certainty,” he said. “We’re moving towards a low carbon economy in all corners of the global economy. Doing that with clarity will be helpful to businesses around the world.”
[caption id="attachment_6035" align="aligncenter” width="469"][Image “A hashtag sign stands at the COP21 United Nations climate conference at La Bourget airfield in Paris, France, on Thursday, Dec. 3, 2015. The two-week event, more than a year in the making, will draw about 137 heads of government and state, some 40,000 delegates including businessmen and celebrities. Photographer: Christophe Morin/Bloomberg” (src=https://bol.bna.com/wp-content/uploads/2015/12/244861568_3-e1449185858256.jpg)]A hashtag sign stands at the COP21 United Nations climate conference at La Bourget airfield in Paris, France, on Thursday, Dec. 3, 2015. Photographer: Christophe Morin/Bloomberg[/caption]
Most lawyers do not have access to the area where where actual negotiations are taking place, called the “Blue Zone.” Instead, they’re spending time in the “Green Zone,” where countries and non-governmental organizations are hosting a number of “side events” featuring speeches, panels, and discussion groups.
The side events — which cover a wide range of scientific, economic, human rights, and business topics related to climate change— provide a space for lawyers to find new clients, and clients find new business opportunities.
When the Big Wigs Leave
In addition to business development, some Big Law attorneys are playing a role in the actual negotiations. James Bacchus, Chair of Greenberg Traurig’s global practice, is serving as an expert advisor to negotiators, and a delegate for the International Chamber of Commerce.
Bacchus said the key difference in this year’s COP, and the reason so many are optimistic, is a change in approach: While past agreements at Kyoto and Copenhagen have imposed “top-down” targets for emissions reductions, which put caps on the amount of carbon emissions produced by each country, countries are now asked to make reduction “pledges.”
According to Bacchus, there is no official compliance mechanism: the negotiations at COP 21 are about how to “promote transparency, monitoring, reporting, verification, and other ways of making certain that we know what countries have promised they will do.”
“Politically, we’ve reached a decision,” Bacchus said. “We’re not going to be able to come together as a world and agree that every country should cut their emissions by 5 percent next Tuesday, and others by 10 percent by next Wednesday. We’re not going to have that kind of top-down global agreement.”
“They’re trying to create long term enduring agreement that can be a bit flexible with need to revisit targets,” Saines said. “It’s all bottom-up. There’s a new paradigm being forged here.”
As heads of state wrap up their speeches this week, government negotiators will, with the help of advisers like Bacchus, spend the next week hammering out specific details of a new, “bottom-up” agreement."The real work doesn’t happen until big wigs leave town,” Bacchus said.
Legal Hurdles at Home
While some Big Law attorneys are in Paris looking for new opportunities, others have been busy at home trying to punch holes in President Obama’s “Clean Power Plan” (CPP), which is central to the U.S. pledge to reduce carbon emissions.
A new set of EPA regulations, the CPP is aimed primarily at coal-fired power plants and designed to cut greenhouse gas emissions by nearly a third within 15 years. The CPP is currently being challenged in federal court in Washington, D.C. by a number of business interests, including the U.S. Chamber of Commerce.
Lawyers said that if the courts strike down the CPP — litigation may drag on for years — it could put the U.S. in an awkward position, in light of any pledges made in Paris to reduce emissions.
“I think it’s more likely than not that courts will uphold CPP,” Saines said. “If it’s struck down, it may force the government to look elsewhere for carbon reductions. It may cause us to jump from the frying pan into the fire.”