Many industries are being pressured to decrease their carbon "footprints" and disclose their potential exposure to climate change related liabilities. The landmark Supreme Court decision, Massachusetts v. U.S. EPA, declaring carbon dioxide a pollutant worthy of regulation, is sending ripples through businesses and governments across the country. Lawsuits, including class action suits, have been filed against companies that emit carbon dioxide. Many cases are pending and others are yet to be filed.
At the same time, opportunities presented by policies designed to encourage carbon dioxide emission reduction and the use of renewable energy can help pave the way to regulatory compliance and increased earnings in these new and growing markets. Schiff Hardin can help clients with issues arising from compliance with new rules and litigation over the consequences of current or past carbon dioxide emissions.
Our experience with carbon constraints and renewable energy incentives matters allows us to offer a variety of services, including:
- Analyze the risk of litigation associated with climate change lawsuits, including class action lawsuits. For example, lawsuits could claim that the client is responsible for causing or exacerbating climate change and its resulting harmful effects, and that compensable damages are due to the plaintiff or class of plaintiffs.
- Represent clients in climate change related lawsuits filed by plaintiffs who may have suffered from or believe they will suffer from the effects of climate change.
- Assist clients in complying with Securities and Exchange Commission (SEC) and state securities laws that require disclosure of material climate change related costs and other business risks to investors. Also assist clients in voluntary disclosure efforts, and disclosure efforts related to audits and corporate due diligence.
- Help clients to identify mechanisms and consultants to calculate carbon dioxide emissions. Assist clients with the detailed record-keeping requirements necessary to verify the permanency of reductions, comply with caps on carbon emissions, and participate in the growing multi-billion dollar market for trading emissions credits.
- Help clients identify alternatives to lowering carbon dioxide emissions such as investment in "carbon sink" banks similar to wetlands banks.
- Assist clients in understanding and complying with contract-based requirements to decrease packaging, fleet transportation requirements, energy use requirements, or the like.
- Assist electricity market administrator clients in developing market rules that facilitate the participation of renewable energy projects.
- Assist clients in negotiating power supply transactions that enable them to meet state renewable portfolio standard requirements, foster development of their own renewable energy projects, and generate RECs or carbon credits for their own use.
- Assist regulatory and policymaking clients in developing RPS rules. Typical provisions include definitions for eligible resources and the process for recording and collecting RECs by suppliers.