portrait of Mark Baker-Jones
Mark Baker-Jones

Special Counsel, Environment and Planning
DLA Piper

1. Please tell us a bit about your organisation and your position / role

DLA Piper is a global law firm and has 4,200 lawyers in offices throughout Asia Pacific, Europe, the Middle East and the Americas.  In Australia it has more than 450 lawyers based in Sydney, Melbourne, Brisbane, Perth and Canberra.  It is a full service commercial firm and trusted legal advisor to approximately a third of the ASX 100 companies or their subsidiaries and all levels of government. 

I am a Special Counsel advising on planning and environment law with a focus on climate change adaptation.  My role is to advise our clients on how they should respond to the evolving regulatory and governance frameworks that are developing to contend with climate change and how, through an understanding of those frameworks, clients can minimise risk and liability by ensuring regulatory compliance and the incorporation of effective adaptation measures internally and by their partners.  Importantly, we look at facilitating some of the many opportunities that are becoming increasingly available as a consequence of climate change. 

Specifically we can create legal and institutional frameworks that facilitate climate change adaptation planning and support corporate resilience.  We develop decision making frameworks designed to give corporations and governments an understanding of the climate change related legal risk and provide guidance as to how to deal with and respond to the legal risks involved.

We also advice on the assessment and management of corporate or government climate legal risk through the identification of the climate legal risks, the identification of the relevant regulatory frameworks that impose legal obligations related to climate change risk, and the development and implementation of strategies for dealing with those legal obligations.

2.  What role is the legal sector currently playing in the adaptation environment – and how do you see this role emerging in the future?  (e.g. helping with regulation v private litigation)

There has been little involvement from the legal sector in climate change adaptation, but this is not surprising.  Climate change adaptation, from a legal perspective, requires a highly collaborative approach; the bringing together of a range of legal skills and expertise.  For example, a project may require advice on adoption and enforcement of polices and sector specific legislation that integrate climate change adaptation and disaster risk management.  This will require combining legal expertise in climate-related risk, planning, project finance, construction, insurance, corporate responsibility, and even employment strategies.  Further, the effects of climate change may sometimes be geographically distinctive, but they are not geographically isolated and for that reason, legal solutions require cooperation not only between sectors but across regions; something only a global firm can provide.  For this reason, DLA Piper is uniquely positioned to provide complete advice on climate change issues.  Whether on a local, national or international level, there are few, if any, other firms in the world that can do this.

Without question, the need for good legal advice in this area will continue to grow.  Most countries now have either developed or are developing regulatory frameworks to deal with climate change impacts and increasingly those frameworks incorporate adaptation measures.  Unfortunately, unless the regulatory frameworks are well crafted and fully understood by those that they regulate, there will be the risk of inadvertent non-compliance, the result of which will be increased litigation costs, penalties and delays to development.  While there is an increasing body of good science in this area, to bring about the effective implementation of adaptation strategies, the science still needs be translated to the end users.  This can be achieved through smart regulation that is accessible, easily understood and willingly complied with by those subjected to it.  Unfortunately, few firms yet have the capability to provide the type of advice needed.  Because of its global relationships and vast pool of legal knowledge and skills, DLA Piper, incorporating its international experiences, is able right now to bring together all its extensive legal resources and provide full advice on climate change adaptation issues. 

3. In your opinion do you think climate change adaptation is being adequately considered by people in the private sector?

Over the last six months we have been involved in a program to meet with business leaders in New South Wales, Victoria and Queensland precisely to discuss private sector understanding and response to climate change adaptation.  Certainly there is a common awareness amongst business leaders that they are exposed to risk arising from climate change as a consequence of the duties and responsibilities they assume as corporate leaders.  What varies considerably however is the degree to which these leaders understand the risk and liabilities and how these can be avoided or mitigated.  From our experience, there are very few who have identified the actual risks and liabilities they and their corporations face in respect of climate change and fewer still have developed, or even given thought to developing strategies to deal with those risk and liabilities.  Interestingly, it is not always the larger, more sophisticated corporations that are ahead in this area and yet they are often the most exposed because of the extent of their asset spread and reliance on exposed partners.

4. Many people in the private sector have expressed that uncertainty about specific climate impacts make it too difficult to consider in their business planning – is uncertainty an adequate reason for not doing anything?

For us as lawyers, who deal on a daily basis with uncertainty, there is no excuse for inaction because of uncertainty.  Like nature, the law has little forgiveness for the unprepared. 

There is a great deal of excellent scientific research available, including high level theory on adaptation but what is missing is the translation of that knowledge into practical advice and guidelines that those leading the private sector can understand and apply.  There is a disconnect in the body of regulation designed to deal with climate change adaptation nationally and internationally, and there is a need to implement a unified framework, but until that has been realised, it will be extremely difficult for corporations to be certain they have achieved full compliance, let alone appreciated the emergent advantages.  I can therefore understand that the uncertainty can be overwhelming and there is a temptation to simply ignore climate change.  For a smart, progressive organisation the current uncertainty provides a great deal of opportunity; one need only consider the funding that is being provided to develop climate change resilience in vulnerable regions.  Those in the private sector that are not already developing climate change adaptation strategies to deal with and take advantage of the uncertainties are, although they may not even realise it, forsaking competitive advantage.  My advice to clients that are anxious about the uncertainties is to draw on the resources we have available to ensure resilience and prosperity despite climate change.

5. Are there any interesting climate risk or adaptation-specific legal cases that have occurred in the past year or so that the private sector should be aware of?

There has been a lot of legal action both in Australia and internationally that has involved directly, or indirectly, climate change risk and adaptation.  There is a lot of interest in Queensland at the moment as to how the courts are prepared, or able, to deal with the environmental impacts of mining operations and their contribution to climate change.  The decision of the Land Court of Queensland in March dealing with an application for mining leases by Xstrata Coal Queensland Pty Ltd highlights not only the potential delays to development these issues can cause but also highlights some of the limitations the legislation and the courts, as interpreters of the legislation, are experiencing as they deal with questions of law relating to climate change.  But climate change is affecting all sectors not just the resources sector.  For example, DLA Piper acts for local governments in New South Wales in significant litigation involving questions of liability for damage caused by coastal erosion resulting from sea-level rise.  We are also currently acting for agriculturalists in Queensland in constitutional law proceedings that result directly from Australia's commitment to meet its greenhouse gas emission commitments under the Kyoto Protocol.  We expect to be before the High Court with this matter in the next few months.

But is it the lower profile cases that are having a surprising effect, not only in terms of highlighting government liability, but also on determining the level of risk corporations and private individuals are exposed to.  Whether it is redefining the point at which liability is incurred or introducing new levels of liability where before there appeared to be none, climate change law is driving a reinterpretation of some fundamental principles of duty and responsibility.  You can expect to see a lot of novel legal argument coming out of New York following Hurricane Sandy; argument that relates directly to climate change impacts and the failure to develop and implement effective climate change adaptation strategies.

Litigation is currently most prevalent where there is existing or proposed coastal development in areas that are subject to extreme events (and it is difficult to think of any that are not), whether it be from increasingly intensive storms causing erosion and landslip, flooding and inundation, or heatwaves and drought, we see an increase in tension brought about by rising climate change impacts. Future litigation will represent this more and more and corporations and governments need to be acting now and thinking about how they can embrace adaptation to avoid the costs of, and associated with, litigation. 

 6. Any further comments?

Whereas climate change adaptation is nothing new in the scientific community, it is barely on the radar for many in the private sector.  Unfortunately, most simply do not have the knowledge or skill to respond to the private and public sector's legal needs.  Because of our links with experts in the scientific community and breadth of our practice, we have for some time now, focused on developing our skills and expertise in climate change adaptation to enable us to not only respond but to guide our clients through the uncertainty, to increase their resilience to climate change impacts, and to recognise climate change adaptation related opportunities.

Contact NCCARF for more information on businesses adapting to climate change.

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