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law Times • July 12, 2010 FOCUS PAGE 15 Climate change lawyers grapple with uncertainty BY ROBERT TODD Law Times law, but a lack of regulation continues to force practitioners to remain pliable and willing to read the tea leaves. Provincial governments in L Ontario and British Columbia have now introduced separate legislation to shape their prov- inces' shift to a greener econo- my, but climate change lawyers continue to wait for a fi rm pro- gram from the federal govern- ment. Th at step, however, isn't expected any time soon. Jason Kroft, a leading member of Stikeman Elliott LLP's emis- sions trading and climate change group, says the lack of regulatory certainty means it's still "early days" for this legal area. "Th ere is a lot of internal thinking and writing and devel- oping our expertise, which we're doing by writing on topics of interest or reading and exchang- ing internally. Th e anticipation is, once there's more certainty on the regulatory front, once the economies are improved and climate change becomes a real priority for businesses, I think we're going to see the pace of activity increase." In the meantime, Kroft says work in this area of law falls into four main categories. Much of it comes from companies and organizations outside of Can- ada, such as investment banks and fi nancial institutions, that trade securities and commodi- ties or provide fi nancial prod- ucts. Th ey look to lawyers like Kroft to prepare advisory briefs that will paint a picture of the regulatory framework within Canada for the trading of emis- sions credits. Work also comes from gov- ernments that are involved in large-scale power projects and looking for a better under- standing of the environmen- tal protections that must be in place as well as the possible impact of a future emissions- trading regime. Th e third area keeping Kroft and his climate change law col- leagues busy is advisory work for organizations participating in voluntary emissions-trading schemes. Others are looking for legal advice as they make pur- chases they believe will have val- ue when a full-scale credit-trad- ing system becomes reality. His fi rm also advises companies that actively trade credits in Alberta, which has had a framework in place since 2007. Finally, public companies come to lawyers like Kroft to help create a system for docu- menting and disclosing their carbon footprint. Davis LLP associate Andrew Lord says his fi rm has deter- mined there's not enough go- ing on in climate change law awyers continue to see great opportunity in the area of climate change people always ask," says Kroft. Th e uncertainty has kept many companies from moving forward with climate change eff orts, but the "sophisticated" ones are eager to get ahead of the curve, he adds. "We'll go to our clients and we will try to leave a message that, in the same way when you make a major capital investment or a [mergers-and-acquisitions] activity or structure a prospec- tus, you need to understand a number of attributes, you need to keep climate change as part of that. It's not the only factor and it's probably not the biggest fac- tor but it is a factor that should be measured, assessed, and understood." LT Capacity to Marry and the Estate Plan Jason Kroft expects more work for climate change lawyers once governments provide a better idea of what the regula- tions will be. to fi ll an entire practice group's day. However, issues related to climate change tend to pop up in typical fi les, such as fi nanc- ing deals or asset sales, that hap- pen to involve businesses with a high emissions profi le or may be threatened by climate change. Regardless, lawyers in Davis' climate change practice group have enjoyed growth thanks to Ontario's Green Energy Act and British Columbia's Clean Energy Act. "Both of those are dual- purpose initiatives," says Lord. "Th ey're environmental initia- tives to the extent that they move us to sources of power that have a much kinder greenhouse-gas emissions profi le than traditional thermal generation. But they also create a lot of economic opportu- nity in the provinces by attracting investments in that type of gen- eration and in the professional services and supply of equipment that's required to implement that new generation. So we've seen a lot of activity there." At the same time, Lord says the lack of certainty in this emerging area of law means cli- mate change practitioners must constantly be on the lookout for regulatory developments in multiple jurisdictions. "Because it is shifting so quickly, it sometimes feels like there's a certain amount of crystal-ball work that needs to be done, but that can still be helpful to clients who are try- ing to do scenario planning and anticipate what they're going to have to do in the future." Meanwhile, legislative cer- tainty doesn't appear to be on the horizon. Kroft notes the federal government has indicated its in- tention to wait for moves from the United States before creat- ing a Canadian approach. With the current political situation south of the border, in which representatives are embroiled in mid-term elections, federal legislation isn't likely until next year at the earliest. "My sense is, if there's good federal legislation in the United States, at least for a lot of play- ers, that will tell them what's the risk, what's the cost for carbon, which is the question Helping you to understand the legal issues involved This is the first comprehensive resource to look at the validity of marriages in the context of estate administration, planning and litigation. It explores the requisite capacity to contract marriage and with it testamentary capacity, capacity to manage property and the person, with a focus on predatory marriages. The authors offer guidance from both legal and medical points of view, providing commentary and analysis of the legislation, case law and societal issues. 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