Climate change is an emerging legal challenge for companies in many different industries. Hogan & Hartson attorneys have been working in this field for more than a decade. We bring to our climate change practice a deep understanding of the issues that stems from our regular work at the intersection of business and government across numerous geographies and areas of law. We offer creative approaches designed to enable clients to mitigate the governmental burdens of this rapidly evolving challenge, while also positioning themselves to take advantage of the business opportunities it can represent.

Our interdisciplinary climate team brings to bear strong industry-specific focus, reflecting an understanding that solutions and successes relating to climate issues must make sense within the market and regulatory structures in which affected companies must operate. Thus, clients in the energy, automobile, aviation, food, chemical, retail, building and construction, insurance, and financial industries who are adding climate change to the list of considerations can work with lawyers who know their businesses and understand what climate change regulation can mean for them. Our legal advice is tailored to the prevailing business environment of the relevant industry.

Clean energy technology developers seek our assistance in obtaining government support to commercialize low-carbon impact energy technologies and in developing projects employing those technologies. Our team has first-hand experience with virtually every renewable energy resource and with emerging carbon friendly resources such as the integrated gasification combined cycle (IGCC), ammonia chillers, advanced nuclear and cellulosic ethanol, and the contractual risks and liabilities associated with those technologies.

Electricity clients seek our advice as they confront the dual demand of providing reliable service to meet growing load while reducing the associated carbon impact. We have, for example, assisted clients in negotiating precedent-setting agreements to offset, sequester, or mitigate carbon emissions from major power generating facilities that might not otherwise have been able to proceed.

We assist food industry clients in formulating responses to the emerging competition between food and fuel and other challenges related to the growth of the biofuels industry that is driven by concerns about greenhouse gas emissions in the transportation sector.

Our automobile and aviation clients look to us for both legal and policy advice as they position themselves for a carbon-constrained future.

We advise engineering and consulting clients concerning their participation in greenhouse gas reducing projects around the world. Building and construction clients also engage us for projects, many of which involve “green building” codes and contracts and low energy electron diffraction (LEED) certification contracting issues.

We advise clients on all major climate change regulatory regimes from voluntary programs to the emerging proposals for state, regional, and federal mandates. We are increasingly assisting clients in navigating the intersections and conflicts between the various regulatory regimes and their business strategies in the face of the regulatory uncertainty.

Our lawyers’ experience covers a broad range of issues relating directly to implementation of the Kyoto Protocol and the European Union Emission Trading Scheme (EU ETS). With offices in all of the major global business centers, we are poised to assist companies quickly and efficiently in addressing critical allowance allocation and compliance issues, and in taking full advantage of carbon trading opportunities. We have negotiated many agreements for the purchase and sale of certified emission reductions (CERs), emission reduction units (ERUs), and verified emissions reductions (VERs). We are also advising governments and development banks on climate change projects and programs.

Legal services we provide relating to climate change include advising clients that sponsor greenhouse gas reduction (GHG) projects, including industrial efficiency, fuel-switching, and land use and land use change projects; negotiating contracts between parties to obtain CERs that can be internationally traded; providing guidance to installations operators that fall under the rules of the EU ETS regarding their emission monitoring and reporting duties; and working for companies with multiple emitting installations in developing an internal balance system for their emission certificates. Our transactional lawyers call on the climate team as necessary to address the issue of carbon credit allocation.

Hogan & Hartson lawyers working on the issue of climate change include:

• A current member of the International Chamber of Commerce's Task Force on Climate Change.
• The authors of the first legal commentary on the framework of the European Trading System in Germany, Treibhausgas-Emissionshandelsgesetz and the Law of Allocation, Zuteilungsgesetz 2007.
• A vice-chair of the American Bar Association Climate Change Committee.
• A former general counsel of the U.S. Department of Energy who negotiated the first voluntary agreements for GHG reductions with U.S. electric utilities.
• Former senior officials with the U.S. Environmental Protection Agency.
• Lawyers who have represented the National Oceanic & Atmospheric Administration (NOAA), the National Renewable Energy Laboratory (NREL), and the National Center for Atmospheric Research (NCAR).
• A founding director and former counsel to the U.S.-Russia Business Council.

Related Experience

• We represent a private client in the contractual acquisition and divestiture of CERs with a current fair market value of over $350 million from various Clean Development Mechanism (CDM) projects around the world. The representation includes ensuring the liquidity and recognition of CERs in various carbon trading schemes, including the Kyoto national registries, the EU ETS, and the Conservation and Demand Management (CDM) registry.
• We represent a private client seeking to maximize the market value of a potential CERs stream with a current fair market value of over $117 million. The matter includes advising on project finance, CERs generation and delivery risk, and ensuring the liquidity of CERs at maximum value in various carbon trading schemes.
• We represent a U.S. development bank in the project finance of 200 CDM projects in Mexico secured by over one million CERs. The representation includes performing CDM-related due diligence regarding the operations of a major global CDM project participant, as well as drafting loan agreements and associated documents.
• We are acting together with a UK consulting firm as carbon manager for a multilateral carbon credit fund (approx. 165 Mio. € first commitment) and in the southeast region of Europe.
• We are advising major U.S. utilities concerning their development of IGCC coal plants that include carbon sequestration.
• We negotiated a first-of-a-kind insurance policy designed to insure against the Kyoto Protocol regulatory risks related to a transaction for the purchase of CERs.
• We have been awarded the contract by the EU to assist the Russian Federation in the implementation of Kyoto Protocol regulation especially on registry and inventory.
• We represent a private client in seeking state and national approval of a carbon sequestration validation/certification methodology and are currently advising that client on a pilot trade of carbon credits from the Cheyenne Indian tribe.
• We provide ongoing advice to energy companies regarding carbon trades and carbon projects through the Chicago Climate Exchange, the California Climate Action Registry, and the Regional Greenhouse Gas Initiative.
• We advised a Canadian company concerning its proposed agreement with an emissions broker for the sale, lease, and optioning of GHG emissions reductions.
• We assisted a Global 500 manufacturing company in developing methanol automobile fuel infrastructure in Brazil to support use of alternative fuel vehicles.
• We developed a proposal for Dutch funding of central heating plant upgrades in the Russian Federation to improve apartment house heating systems and reduce fuel use and CO2 emissions.
• We represented a group of new entrants to the European energy market in the design of their allocation strategies and we lobbied for them in regard to the National Allocation Plans within the ETS for the phase II (2008-2012).
• We advised a client in drafting and negotiating an agreement to assist its customer in obtaining CDM and JI approvals for a particular industrial process that reduces GHGs and in marketing the emissions reduction credits achieved through such processes.
• We represent a major U.S. airport authority in its efforts to monetize GHG-reduction activities through various domestic climate change initiatives, including the Regional Greenhouse Gas Initiative and the California Global Warming Solutions Act.