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PAGE 10 FOCUS JuLy 13/20, 2009 • Law Times New horizons for environmental lawyers BY JULIUS MELNITZER For Law Times rizons for environmental lawyers. Which is not to say that the C limate change inter- twined with energy and cleantech are the new ho- workload has changed. "I'm working flat out as hard as I can go, which is what I've been doing since I started my practice in 1990," says Dianne Saxe of Toronto, an environmen- tal law specialist. "The shoe prob- ably won't drop until they have a carbon trading regime in place." Nowadays, Saxe and other en- vironmental lawyers are preoccu- pied with the sudden emergence of the likes of the Green Energy Act, the Toxics Reduction Act, and the carbon offset regulations. "Right now it's a question of GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW Angela Emerson John L. Davis John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki Jody W. Iczkovitz Larry C. Henry Mary-Catherine Lill Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com trying to figure out what's going on," says John Willms of Willms & Shier Environmental Lawyers LLP, a 12-lawyer boutique in Toronto. "Regulatory develop- ments have been slow in com- ing, but we need to stay ahead." Indeed, the firm's lawyers are busy responding to clients anxious about what's coming in Canada and elsewhere, looking for explanations and interpreta- tions of the laws and regulations that have emerged, and seeking to understand the business op- portunities represented by the green movement. Otherwise, the field of energy approvals is burgeoning. "It's gone from a gleam in the environmentalists' eyes to fully- fledged, highly-leveraged govern- ment intervention with the in- troduction of laws like Ontario's Green Energy Act," Willms says. "The government is trying to change the whole economic para- digm around energy develop- ments, and that's one area where we're expecting a lot of work." Certainly no one has come to grips with the impact of the Green Energy Act on transmis- sion issues. "Ontario hasn't built a trans- mission since it adopted the En- vironmental Assessment Act in the '70s," Saxe says. These and other emerging en- vironmental concerns have con- verged in the transactions part of the practice. "Traditionally, this amounted Let us open right door for you the We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of nine lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 Kuretzky_LT_Mar2_09.indd 1 www.lawtimesnews.com 2/24/09 12:26:18 PM to advising lawyers involved in M&A and other transactions about brownfields complica- tions, but there are now a whole range of other environmental is- sues that have become very real to the business world," Willms says. "As was the case with brownfields, lawyers will take a while to understand that it's not just a matter of throwing a few words into an agreement — en- vironmental concerns have be- come way more complex." In other words, climate change and cleantech issues have moved from being an af- terthought on transaction teams to being integral to their proper functioning. Inevitably, the di- vide between environmental lawyers and business lawyers has begun to blur. That's what happened to the IP and IT lawyer in the e-commerce heyday. The business lawyers — the core corporate commercial, corporate finance, securities, and M&A types — didn't go away, nor did they lose their influence in the legal hierarchy. Their vis- ceral understanding of how busi- ness and transactions work, and what it takes to make a company prosper and a deal close, re- mained the legal lynchpin for a transaction's success. They called themselves e- commerce lawyers, and their ranks included a fair number of entrepreneurial IP and IT types — especially IT types — who, by dint of their background or rapid learning curve, evolved into business lawyers. That's now happening to envi- ronmental lawyers in a legal mar- ket where the cleantech designa- tion is the flavour of the day. "My experience is that senior 'Regulatory developments have been slow in coming, but we need to stay ahead,' says John Willms. business people take an interest in cleantech and climate change and they understand that they need to know something about it," says Gray Taylor of Toronto, leader of Bennett Jones LLP's climate change and emissions trading group, who started out as a corporate commercial lawyer and became an envi- ronmental transaction lawyer before emerging in his current incarnation. "For the first time, environmental lawyers are gain- ing access to significant business people who have real money." It's not that the link between environmental lawyers and busi- ness is entirely new. "What's new is that cleantech lawyers will be- come important in transactions because they will have to respond to a host of new regulatory is- sues as well as the impact of the cap and trade market," says Paul Cassidy, head of Blake Cassels & Graydon LLP's environmental group in Vancouver. In other words, climate change considerations have brought busi- ness law closer to environmental law than it has ever been. "Things have got to the point where any transaction where a client finances or buys or sells something that impacts the en- vironment invokes the need for environmental negotiation," says Anne-Marie Sheahan of Montréal, who leads McCarthy Tétrault LLP's environmental law practice. "This has evolved over two decades, but recently, there is more and more negotia- tion about the environmental el- ements of such a transaction." When the product is an en- ergy-saving device or service, the negotiation often revolves around pricing. "If you have a system that reduces heating costs, how do you price that to someone who has an existing building?" asks David Pamenter of Toronto, national leader of Gowling Laf- leur Henderson LLP's technol- ogy industry group. "Because business models are evolving, creativity is often required to turn a product into a commer- cial enterprise. And the newer the product is, the more skep- ticism you get, so frequently it becomes a matter of the sup- plier sharing the actual savings with the customer. The lawyer's job is to make sure the pricing and structuring add up to a good deal for the client." LT