| Climate Change and Carbon Markets |
Climate change developments affect companies at many different levels, requiring firms providing effective climate change legal advice to have broad, relevant experience and up-to-date knowledge. WilmerHale has seasoned lawyers that can offer a range of experience to companies facing these and other climate change issues as the United States and other countries begin to define the structure of the new, carbon-constrained future. Our clients rely on us for strategic regulatory guidance with respect to the challenges and opportunities presented by climate change, including multidimensional advice that addresses the legal, public policy, political and media aspects presented by those issues. WilmerHale lawyers with expertise in climate change are located across our 12 offices in the United States, European Union (EU) and Asia.
Environmental Expertise
In addition to strategic regulatory advice, we counsel our clients with respect to significant day-to-day legal issues that arise in managing climate change issues. These issues range from participation in traditional and emerging emission trading markets, planning for and implementing programs for the timely manufacture of climate change-based products, and assisting in the pricing of potential acquisitions/divestitures or significant internal activities such as facility expansions or new construction in light of current and future carbon regulation. Our lawyers closely monitor developments—and their likely implications—here and abroad. We provide real time assessments of what is happening at the local, state and regional levels as well as on Capitol Hill, among key constituencies, in the campaigns, and internationally. We help management predict where things are likely to go and in what time frame. We also assist in formulating legislative and regulatory strategy, analyzing the international impacts of various legislative approaches, helping to shape legislation and regulation, and interacting with key Members of Congress, their staff and key staff in the Executive Branch agencies.
There are both well-established and nascent carbon trading markets, and early movers can take advantage of opportunities presented by participation in these markets. However, there continues to be major challenges for companies that are or would like to participate in these systems. Our lawyers are experienced in emissions trading and can help companies navigate the new universe of carbon markets and submarkets. They also assist public companies facing increased pressure to evaluate and disclose potential risks from climate change in their corporate reporting, including the impacts of new carbon regulation, climate-related physical events, and growing demand for low-carbon technologies and products.
In recent matters we have:
- Advised domestic companies on carbon sequestration strategies and ways to develop and implement climate change action plans to maximize the ability to participate in emerging global carbon markets, including voluntary systems as well as international systems tailored to the Kyoto Protocol. This has included participation in finalizing Carbon Sequestration Reports to verify carbon certified emission reductions pursuant to the Kyoto Protocol.
- Advised clients in service sectors on issues arising in connection with developing climate change based products and services.
- Assisted clients across a broad range of industries in evaluating the potential impacts of federal, regional and state/local carbon programs on current and future operations, and in designing proactive strategies to minimize risk exposure. Our lawyers assist in identifying business opportunities presented by the interplay of domestic and international climate change programs, and in working to ensure that domestic programs are developed in a manner that preserves and enhances incentives for carbon reduction.
- Assessed potential Clean Development Mechanism projects to sequester carbon or develop alternative energy sources in developing countries, including evaluating project finance options and partnerships with local capacity building organizations.
- Advised clients on the development, registration and marketing of alternative fuels, and the financial opportunities presented in the carbon markets relating to these products.
- Worked with companies to address developments in the area of corporate financial accounting for and reporting of risks associated with climate change, including advice to companies participating in the Carbon Disclosure Project and ongoing efforts by NGOs to encourage more expansive corporate financial reporting of risks associated with climate change.
- Assisted companies and financial institutions with respect to emission trading in the mature SO2 and NOx emission markets, and we have advised financial institutions and private equity investors on issues relating to the emerging global carbon market and carbon emission trading pursuant to the European Union Emissions Trading Scheme and elsewhere.
Energy and Clean Technology Expertise
Developments in national and international climate change regimes are influencing the energy and clean technology sectors every day. Our lawyers are well positioned to advise a broad universe of interests in these sectors. We are experienced in all aspects of the development and operation of complex energy projects, and have advised clients on traditional and alternative energy projects located in the United States, Europe, South America, the Middle East, Africa, China and Asia.
In recent matters we have:
- Negotiated project financing agreements, environmental permits, engineering, procurement and construction contracts, electrical interconnection agreements, operating and maintenance agreements, fuel supply agreements, and power sales agreements for a wide variety of alternative energy facilities, including cogeneration, hydroelectric, biomass, landfill gas to energy, landfill waste to fuel, solar, and wind power production facilities.
- Advised energy companies and private equity clients on matters relating to the trading of emission credits, the potential for generating CO2 certified emission reductions under the Kyoto Protocol for carbon sequestration projects, and the registration and trading of renewable energy certificates.
- Represented early-stage and venture-backed companies developing and commercializing energy-related or other clean technologies, including solar technologies, biofuels, fuel cells, batteries, and ethanol and other biofuels, as well as venture capital firms and larger corporations that are making strategic investments in alternative energy technologies. Our expertise to address this portion of the market draws on our traditional corporate, technologies, and transactions practices, coupled with our knowledge of energy regulatory issues and our ability to provide meaningful public policy strategic advice.
International
Lawyers in WilmerHale’s offices in the EU work closely with clients, including various governmental entities, on issues relating to climate change, implementation of the provisions of the Kyoto Protocol, and related EU environmental initiatives. We have lawyers that have been involved in the analysis and development of incentives to stimulate the use of biofuels as an alternative fuel for road transport and electricity generation, and in analyzing issues related to differentiating between various forms of biofuels, including the potential use of “sustainability criteria” to distinguish between forms of biofuels for this purpose.
Our lawyers are also very familiar with the various proposals of EU Member States and the European Commission to impose restrictions on imported products from countries do not have equivalent climate change regulatory programs or GHG emission standards, including the potential imposition of carbon taxes on imports or obliging importers to buy carbon credits in the revised European emissions trading system.
In recent matters we have:
- Advised regarding efforts by various governmental entities to enter into agreements that would seek to promote the use of products that comply with a non-binding ELC standards as a component of member countries’ efforts achieve Kyoto and other future climate change goals. Among the issues that our lawyers have addressed in this context are the potential ramifications with respect to the prohibition on anticompetitive agreements of Article 81 EC.
- Appeared before the European Courts in connection with the Commission's approval of the first German national allocation plan for greenhouse gas emission trading certificates that was developed pursuant to the Kyoto Protocol.
- Provided in-depth strategic advice on the evolving German legislation in the field of renewable energies.
- Assisted a foreign investor specifically with regard to the current revision of the German Renewable Energy Sources Act, including detailed discussions with government officials on the upcoming legal framework.