Services

Climate Change Law

The international community has agreed to an international legal regime seeking to address climate change, most notably the United Nations Framework Convention on Climate Change and its Kyoto Protocol.

Warburton Attorneys has a detailed understanding of the environmental and climate change legal implications of the interaction of this international legal regime with the domestic legal regime. More particularly, Warburton Attorneys is a national leader in the provision of commercial legal advice related to the development of greenhouse gas mitigation projects, e.g., Clean Development Mechanism (CDM) projects, and the generation and monetisation of both compliance and voluntary carbon credits.

Carbon Markets Law

The phenomenon of global climate change, with its concomitant impact on all spheres of human activity (economic, social and environmental), is considered to be a scientific reality (see: www.ipcc.ch). The international community has agreed upon an international legal regime seeking to address climate change, most notably the United Nations Framework Convention on Climate Change and its Kyoto Protocol.

Our experience encompasses, generally, matters related to the carbon market, the identification and implementation of CDM projects, carbon commercial transactions, climate change policy and regulatory development and the implications of the relevant environmental legal regime. We count amongst our clients:

greenhouse gas mitigation project developers, investors and carbon credit originators;
banking and financial institutions;,
policy institutions and national governments; and,.
other attorneys firms, including international firms, seeking specialist assistance for their clients.

For further information on our work of the Unit please download the following document [brochure].

Climate Change and CDM Legal Advice

We offer a broad range of legal advice related to the identification and development of CDM projects. The unpredictable nature of project development, and the unique characteristics of individual projects, means that we are often requested to provide a wide and flexible suite of legal services, general legal advice and carbon transactional advice and drafting. Specific work items might include:

Drafting and negotiating a range of carbon-commercial contracts, including Emissions Reduction Purchase Agreements, Project Development Contracts, Co-operation Agreements, Letters of Intent, Carbon Asset Development Agreements, Landfill Gas Rights & Utilisation Contracts, and Land Use Agreements, e.g., in instances where a project is to be located on land owned by a third party.
Review and mark-up, as necessary, where the abovementioned contracts and other relevant contracts, e.g., contracts for the provision of professional services offered by carbon consultants, engineers, and/or Designated Operational Entities (DOEs), have been drafted by entities other than Warburtons.
Liaison with relevant bodies, e.g., the South African Designated National Authority for the CDM, 1 the CDM Executive Board (EB) and DOEs, including drafting of relevant documentation and correspondence, including the DNA’s Application Form, Modalities of Communication (with the EB), responses to completeness checks and responses to requests for reviews
Ongoing process advice on CDM project development in accordance with the requirements of the CDM Modalities and Procedures.
Strategic advice based on developments in the international and South African climate change legal and policy regimes, and on the interaction between the international climate change regime, the CDM Modalities and Procedures and the South African environmental legal regime.
CDM and carbon markets training and capacity building.
Auditing CDM project compliance with South African environmental legal requirements.
Review and analysis of the international carbon market (primary, secondary and voluntary) and carbon credit price fluctuations, and the provision of strategic commercial advice based on such review and analysis.
Policy research, analysis and development of position papers on the CDM in Africa.
Strategic analysis and comment on the post-2012 negotiation process.

Due Diligence Legal Advice for CDM Projects

Warburtons regularly undertakes CDM due diligence investigations. A typical instruction to undertake such an investigation is likely to be from international law firms with clients seeking to invest in South African CDM projects. However, we also provide this service to South African clients who may be seeking to invest in a particular CDM project and require an assessment of the status of the project and associated risks. The broad object of a CDM project due diligence investigation is to provide legal analysis and guidance on, inter alia:

the integrity of particular CDM projects, including the integrity of the contractual foundations of the projects, but excluding their technical and financial aspects;
the legal capacity of the project owner to undertake the CDM projects and its legal title to greenhouse gas emissions reductions; and,
the implications of the project owner’s company structure for anticipated contractual relations.

Specific CDM due diligence work items may include:

Review of project legal structure in order to assess integrity, including review and analysis of relevant contractual documents, assessment of existing environmental and other liabilities, rights and obligations associated with such contractual documents.
Review and context-specific analysis of such CDM project cycle documents as may be available, e.g., Project Design Document / Validation Report.
Review and assessment of the project owner’s corporate structure in light of the contemplated transaction.
Drafting of:

a “Legal Capacity” opinion, assessing the project owner’s legal capacity to undertake the CDM projects; and,
a “Legal Title” opinion, assessing the project owner’s potential legal right and title to emissions reductions potentially to be generated, and hence project owner’s right to sell such emissions reductions.

Recommendations on key environmental statutory requirements, including authorisations and permits, required to undertake the project, including review and assessment of potential environmental risks and liabilities and possible environmental non-compliances, which might negatively affect project implementation and the generation of emissions reductions, but excluding any technical and financial risks.

For further information on project specific experience, please see Clients & Projects

Please see our commercial related services for further information on specific climate change legal services.