Perspective: Climate change is stressing existing legal frameworks
Partners in Miami Doug Halsey and Neal McAliley, who lead the White & Case Environmental Law and Climate Change practices, share their perspectives on the intersection of the law and our changing climate.
How do you see the challenges posed by climate change?
NM: Climate change poses a complex challenge for lawyers. The underlying problem is pervasive—climate change affects virtually all facets of society—and there is pressure from stakeholders all over the world to do something about it. On the other hand, many potential responses to the problem could cause real economic dislocation, and there is no political consensus in many countries on how best to proceed. The result is a fragmented legal and policy regime, which can be challenging to navigate for lawyers and businesses.
One of the biggest challenges is how to address real environmental problems while at the same time treating everyone fairly. Finding win-win situations is not easy, but it is necessary.
Neal Mcaliley, Partner,
Disputes and Environmental practices
How urgent is the situation? Are you seeing the effects of climate change in your work now?
DH: One of the aspects of climate change that is undeniable is the impact of sea level rise. We are seeing it firsthand in low-lying areas of the world. For instance, on Miami Beach, which is an island only a few feet above sea level, seawater comes out of the storm drains and floods the streets during seasonal high tides. Climate change also is having a tremendous ecological impact in some parts of the world, evidenced, for instance, by changing migration patterns.
What types of implications does climate change have for the law?
DH: Perhaps most importantly there is the question of how to deal with the real impacts on people, which often relate to development issues that range from local code changes to significant investment needs. Using the sea level rise in South Florida as an example, in the Florida Keys there is a building height restriction to protect the natural beauty of the landscape, but now changes in the insurance requirements and building codes are allowing people to build higher to deal with the intrusion of tidal waters. In low-lying cities, hundreds of millions of dollars must be invested to renovate the infrastructure to manage storm water and withstand tidal changes. In some places in the world, there may not be the resources to implement these types of measures, and some populations will have to migrate. All of these types of situations create complicated and novel legal issues.
has been provided to protect and restore tropical forests, watersheds and critical ecosystems
What are the challenges in today's environmental law? How does it need to develop?
DH: One of the biggest challenges is that we don't have a single legal regime to address all of these issues. At the international level, efforts at harmonization have stalled. In some countries like the United States, there is no single policy response to climate change. Yet, the laws on this topic are evolving very rapidly, and probably will continue to do so for the foreseeable future. The result is that environmental lawyers need to be ready to deal with a patchwork of legal systems depending on where a project or dispute is located, ranging from cap-and-trade systems to carbon taxes to renewable energy mandates.
One also needs to think about how actions today may affect legal compliance tomorrow if more stringent regulations of greenhouse gas emissions are adopted in the future. This poses serious challenges to companies doing business around the world.
NM: One of the biggest challenges is how to address real environmental problems while at the same time treating everyone fairly. Protection of the environment usually requires some type of governmental action. But advocates for greater environmental regulation sometimes forget that those regulations can really harm those being regulated. We should be looking for solutions that reduce environmental harm while at the same time avoiding unnecessary adverse effects on individuals, businesses and the economy. Finding win-win situations is not easy, but it is necessary.
Swapping debt for investment in nature
Since 2006, White & Case has assisted environmental groups including Conservation International, The Nature Conservancy and World Wildlife Fund (WWF) to negotiate a total of seven debt-for-nature swaps that have provided nearly US$200 million to protect and restore carbon-rich tropical forests, watersheds and critical ecosystems under threat from unsustainable development, provide livelihoods for local populations and combat wildlife trafficking—all with an emphasis on the survival of some of the world's most endangered species.
Any way you look at it, this is a winning situation for Indonesia—enabling it to use these funds to protect globally spectacular biodiversity, provide economic security for the millions who depend on these forests and fight climate change.
Tom Dillon, Senior Vice President for Field Programs,WWF
These agreements have been negotiated between the US government and the governments of Costa Rica, Guatemala, Indonesia and Jamaica. They are authorized under the US Tropical Forest Conservation Act of 1998 (TFCA), which allows countries to redirect debt owed to the United States for forest conservation purposes.
As transaction counsel, White & Case drafts the main transaction documents, typically including a forest conservation agreement, which establish how the funds will be used over the relevant time frame. One of the greatest challenges in drafting these agreements is to satisfy the various interests of the governmental and non-governmental participants.
HELPING TO DRAFT ENVIRONMENTAL POLICY IN MYANMAR/BURMA
Lawyers from Miami, New York, Singapore and Tokyo helped the International Senior Lawyers Project and The Karen Environmental and Social Action Network (KESAN) draft an environmental policy to govern areas of Myanmar/Burma populated by the Karen, an ethnic minority. Our lawyers analyzed environmental regulation in selected countries, international best practices for environmental impact statements, and procedural and substantive requirements used in the provision of compensation to people displaced due to governmentally sanctioned natural resource development projects. The memos will aid in negotiations with Myanmar's Union government regarding environmental policy for areas of the Karen State under separate administrative control.
VICTORY IN NEW ENGLAND CLEAN WATER ACT SUIT
New York associates Seth Kerschner and Matthew Wisnieff represented the Conservation Law Foundation in litigation at the Massachusetts federal court. They secured a victory in a Clean Water Act citizen suit against a large metal scrapyard that discharged toxic metals and other hazardous materials into Massachusetts rivers. The scrapyard agreed to come into compliance with the Clean Water Act, obtain a required permit and pay environmental groups more than US$200,000.
A ROADMAP FOR CARBON CREDITS IN INDONESIA
Lawyers at our affiliate in Jakarta provided the Indonesian government with a white paper outlining a roadmap for using carbon credits to fund the acquisition of high-quality data on undeveloped geothermal fields, with the goal of encouraging greater investment in renewable energy sources.