Climate change isn't an issue for politicians alone - it's time for businesses and the legal profession to step up

Lawyers have a significant role not just in advising on incoming energy and climate regulation, but also in developing new structures and precedents, and in advising on new aspects of corporate governance and risk management.

For decades politicians have looked to a cadre of scientists, economists, think tanks and NGOs for help in devising international and national responses to the challenges of climate change. There were relatively few opportunities for business or the legal profession to influence the debate and there seemed to be little appreciation of how remote the world of UN climate negotiations seemed to the general public and to many in business. Often seen as a political issue, in order to implement climate change policies effectively industry needs to be instructed and incentivised by a body of clear, collective regulation if it is to make the long term investments required to lower our dependency on fossil fuels and lower global carbon emission.

The scale and the uncertainties around climate change meant that regulating was never going to be easy. The global downturn has also, inevitably, diminished the vitality of the debate. Governments, to their credit, have continued to regulate but have in some cases appeared slow to appreciate the importance of commercial certainty. There has also been a tendency to underestimate the impact of regulatory tinkering on willingness to invest. Many policy initiatives have involved a considerable learning process in relation to the interaction of environmental constraints and market forces. This has included regimes for trading carbon credits, which required the elision of environmental and financial markets expertise, and schemes for reducing emissions from the built environment which have struggled with the implications of landlord - tenant arrangements.

In response to these challenges, the Legal Sector Alliance on Climate Change, an association of 270 commercial law firms, has argued publicly for effective regulation in relation to climate change and low carbon energy. In its most recent communiqué eight principles were set out that policy makers should take into account in formulating new policy and regulation, which includes recommendations relating to investment incentives and the standardisation of products and reporting standards.

There are signs that the mood is shifting towards working with business. Private sector consultation on the development of new UN mechanisms is being encouraged. COP 19 in Warsaw has been promoted as a "business COP", with Poland encouraging the UN to bridge the gap between the policies being shaped through negotiations and the role of business in implementing and financing these obligations. Lawyers can decode and help shape the debate in these areas.

Because the scientific community is in broad agreement on the reality of climate change, it is a risk that companies have to consider as a matter of good management. This makes climate change one among many factors that businesses consider in relation to new projects, transactions, or as part of their risk management and governance processes.

For most sectors climate change is an area comparable to other more traditional issues on which lawyers advise. For the energy sector and for energy intensive business, the impact of the policy response to climate change is likely to be more profound, albeit over a long timescale.  While the primary energy sources for the foreseeable future are fossil fuels, the market share for renewables continues to grow and there is an developing focus on the energy efficiency of buildings, industrial operations and products. These changes are creating new business models, additional issues in transactions and operational challenges. For these industries, lawyers have a significant role not just in advising on incoming regulation, but also in developing new structures and precedents, and in advising on new aspects of corporate governance and risk management. So as the volume of regulation relevant to climate change evolves, expect the role of lawyers to be much broader and more important.

The Legal Sector Alliance on Climate Change has set out eight principles for formulating new policy and regulation. Photograph: Getty Images.

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Brexit has opened up big rifts among the remaining EU countries

Other non-Euro countries will miss Britain's lobbying - and Germany and France won't be too keen to make up for our lost budget contributions.

Untangling 40 years of Britain at the core of the EU has been compared to putting scrambled eggs back into their shells. On the UK side, political, legal, economic, and, not least, administrative difficulties are piling up, ranging from the Great Repeal Bill to how to process lorries at customs. But what is less appreciated is that Brexit has opened some big rifts in the EU.

This is most visible in relations between euro and non-euro countries. The UK is the EU’s second biggest economy, and after its exit the combined GDP of the non-euro member states falls from 38% of the eurozone GDP to barely 16%, or 11% of EU’s total. Unsurprisingly then, non-euro countries in Eastern Europe are worried that future integration might focus exclusively on the "euro core", leaving others in a loose periphery. This is at the core of recent discussions about a multi-speed Europe.

Previously, Britain has been central to the balance between ‘ins’ and ‘outs’, often leading opposition to centralising eurozone impulses. Most recently, this was demonstrated by David Cameron’s renegotiation, in which he secured provisional guarantees for non-euro countries. British concerns were also among the reasons why the design of the European Banking Union was calibrated with the interests of the ‘outs’ in mind. Finally, the UK insisted that the euro crisis must not detract from the development of the Single Market through initiatives such as the capital markets union. With Britain gone, this relationship becomes increasingly lop-sided.

Another context in which Brexit opens a can of worms is discussions over the EU budget. For 2015, the UK’s net contribution to the EU budget, after its rebate and EU investments, accounted for about 10% of the total. Filling in this gap will require either higher contributions by other major states or cutting the benefits of recipient states. In the former scenario, this means increasing German and French contributions by roughly 2.8 and 2 billion euros respectively. In the latter, it means lower payments to net beneficiaries of EU cohesion funds - a country like Bulgaria, for example, might take a hit of up to 0.8% of GDP.

Beyond the financial impact, Brexit poses awkward questions about the strategy for EU spending in the future. The Union’s budgets are planned over seven-year timeframes, with the next cycle due to begin in 2020. This means discussions about how to compensate for the hole left by Britain will coincide with the initial discussions on the future budget framework that will start in 2018. Once again, this is particularly worrying for those receiving EU funds, which are now likely to either be cut or made conditional on what are likely to be more political requirements.

Brexit also upends the delicate institutional balance within EU structures. A lot of the most important EU decisions are taken by qualified majority voting, even if in practice unanimity is sought most of the time. Since November 2014, this has meant the support of 55% of member states representing at least 65% of the population is required to pass decisions in the Council of the EU. Britain’s exit will destroy the blocking minority of a northern liberal German-led coalition of states, and increase the potential for blocking minorities of southern Mediterranean countries. There is also the question of what to do with the 73 British MEP mandates, which currently form almost 10% of all European Parliament seats.

Finally, there is the ‘small’ matter of foreign and defence policy. Perhaps here there are more grounds for continuity given the history of ‘outsourcing’ key decisions to NATO, whose membership remains unchanged. Furthermore, Theresa May appears to have realised that turning defence cooperation into a bargaining chip to attract Eastern European countries would backfire. Yet, with Britain gone, the EU is currently abuzz with discussions about greater military cooperation, particularly in procurement and research, suggesting that Brexit can also offer opportunities for the EU.

So, whether it is the balance between euro ‘ins’ and ‘outs’, multi-speed Europe, the EU budget, voting blocs or foreign policy, Brexit is forcing EU leaders into a load of discussions that many of them would rather avoid. This helps explain why there is clear regret among countries, particularly in Eastern Europe, at seeing such a key partner leave. It also explains why the EU has turned inwards to deal with the consequences of Brexit and why, although they need to be managed, the actual negotiations with London rank fairly low on the list of priorities in Brussels. British politicians, negotiators, and the general public would do well to take note of this.

Ivaylo Iaydjiev is a former adviser to the Bulgarian government. He is currently a DPhil student at the Blavatnik School of Government at the University of Oxford

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