Legal teams clean up on emissions trading

Requires expertise in securities, the environment and tax law, writes BEPPI CROSARIOL

Beppi Crosariol

BEPPI CROSARIOL

It's not what most of us would call a fun weekend getaway, but then Sergey Brin isn't your typical sort of guy.

The 32-year-old billionaire co-founder of Google Inc. took time off from his Internet day job in December to visit Montreal and wander the cavernous halls of the Palais des congrès for the United Nations Climate Change Conference. An avid environmentalist, Mr. Brin was accompanied at several of the group sessions by Dirk Forrister, a lawyer turned environmental executive, to show support for greenhouse gas emissions trading, a burgeoning business made possible by the Kyoto Protocol on global warming.

Analogous to the rise of commodities markets early in the 20th century, the development of emissions trading has become fertile ground not just for scientists and policy gnomes but also for corporate legal teams that combine expertise in such areas as securities, the environment, tax, regulatory law and international arbitration.

"There's lots of work for lawyers all around it," said Mr. Forrister, managing partner of Natsource Europe, a unit of New York-based Natsource Asset Management Corp., the largest private buyer in the greenhouse gas emissions market.

While the drafting stages of Kyoto provided ample work in the 1990s for lawyers versed in international law, its implementation is generating a boom in nitty-gritty corporate work to assist businesses in preparing for compliance as individual countries set specific emissions targets for their industries.

"You need the same kind of financial wheel-greasing that you would in a mergers and acquisitions transaction or a securities transaction," said Gray Taylor, a Toronto-based partner at Bennett Jones LLP and chief outside counsel to Natsource. Mr. Taylor, who combines decades of corporate-commercial experience with a chemistry degree and a more recent passion for environmental law, adds that emissions trading is rapidly becoming more sophisticated and spawning new financial mechanisms such as derivatives.

"The big law firms, even in the U.S., are being drawn into this now."

Indeed, legal giants such as Chicago-based Baker & McKenzie, London-based Clifford Chance LLP and Amsterdam-based De Brauw Blackstone Westbroek are leading the way. Two weeks ago, Brown Rudnick Berlack Israels LLP, a 200-lawyer Boston firm, announced it was establishing a climate and energy group aimed at helping hedge funds capitalize on the trend. And in Canada, the field includes such Calgary-based players as Bennett Jones, Macleod Dixon LLP and Thackray Burgess, as well as national firms Fasken Martineau DuMoulin LLP and McCarthy Tétrault LLP.

Natsource is a group of 26 heavy emitters of carbon dioxide, the chief culprit in global warming, including oil refineries and electricity generators. The so-called carbon pool was formed with the help of Mr. Taylor to buy "credits" to ease the burden of complying with reductions mandated by Kyoto, which calls for participating countries to reduce greenhouse emissions to below 1990 levels by 2012. Those credits -- in effect, licences to overpollute -- will come from clean companies that profit by coming in below their own emissions targets. Natsource has so far set aside about $600-million (U.S.) to spend on credits for its members.

Mr. Brin's interest in emissions trading isn't purely academic. His pilgrimage to Montreal was in fact sparked by a very practical issue: a 180-seat Boeing 767 wide-body airliner he and Google co-founder Larry Page had just bought themselves. Faced with the moral quandary of owning one of the biggest and most ecologically compromising personal vehicles on the planet, Mr. Brin -- known for driving a Toyota Prius hybrid when he's on terra firma -- joined Natsource last year and pitched in an undisclosed amount toward its $600-million fund.

What's striking about Mr. Brin's involvement is that, unlike the pool's other members, his motivation is purely voluntary. The United States has opted out of Kyoto. Not only that, but airplane exhaust itself was exempted from the treaty.

"They're going above and beyond the call of duty," said Mr. Forrister, who was chairman of the White House Task Force on Climate Change under Bill Clinton before joining Natsource. "They're really demonstrating corporate responsibility by offsetting their emissions from their transport as sort of a first step toward reducing their environmental footprint."

Such spontaneous virtue can't be ascribed to Natsource's other members, which include Suncor Energy Inc. and Epcor Utilities Inc. of Alberta, as well as Tokyo Gas Co. Ltd. of Japan and Norsk Hydro ASA of Norway. They'll be compelled to meet strict limits set by their Kyoto-supporting countries.

Although the emissions trading market is modelled after conventional commodities markets, it's complicated by the relative novelty of carbon-reduction credits -- as opposed, say, to pork bellies. There's always the risk, for example, that a seller will underdeliver on reduction volumes. Hence the need for professionally managed buying pools such as Natsource, which act like mutual funds to spread risk and perform due diligence.

But as with conventional commodities markets, emissions trading is quickly evolving in sophistication. "Now it's becoming far more of a financing tool," says Elisabeth DeMarco, a Toronto partner at Macleod Dixon LLP. "We're getting into things like securitization of revenue streams from emissions transactions. We're getting into structured finance using environmental benefits."

Lawyers say growth for legal services in Canada will depend largely on the Conservative government announcing explicit targets for individual polluters here, a process already well under way in Europe and Asia. "The deals that I'm doing really have almost nothing to do with Canada," Mr. Taylor said. "So, if Canada goes forward with a Kyoto program, we will have this huge add-on to our business."

bcrosariol@globeandmail.com

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