COP26: Lawyers in Critical Role as Focus Shifts to Implementation

• Author: Ethan Shenkman
• Position: Partner in the environmental practice at Arnold & Porter
• Pages: 21-21

JANUARY/FEBRUARY 2022 | 21

Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

Private Practice, Public Policy

JOHN KERRY, special presidential

envoy for climate, threw down the

gauntlet when he appeared be-

fore the American Bar Association’s

General Assembly in August, as he

was preparing for the COP26 inter-

national climate change conference.

“You are all climate lawyers now.”

ree months later, the Glasgow

conference concluded with a raft of

important outcomes and multilateral

commitments, due in part to the resur-

gence of U.S. leadership. While com-

mentators continue to debate whether

COP26 was overall a success or fell

short, there were many accomplish-

ments to report, including approval of

the Glasgow Climate

Pact, a wide-ranging

political agreement

calling for coun-

tries to “revisit and

strengthen” their cli-

mate pledges by the

end of 2022, to “phase

down” coal, and to set up processes

toward a global adaptation goal and

higher levels of climate nance.

e United States also helped secure

a Global Methane Pledge, signed by

more than 100 nations, to collectively

cut emissions of this critical climate gas

across all sectors by at least 30 percent

below 2020 levels by 2030, and a sur-

prise announcement of a Joint U.S.-

China Declaration on Enhancing Cli-

mate Action.

As the focus now shifts from goal-

setting to implementation, Kerry’s

words will continue to reverberate, as

lawyers will inevitably play a central

role in determining the ultimate suc-

cess of COP26. Indeed, commercial

lawyers in all disciplines — including

litigators, nance attorneys, corporate

lawyers, securities and regulatory spe-

cialists, and real estate attorneys — are

increasingly starting to see their work

through a climate lens. As Michael

Gerrard, director of the Sabin Center

for Climate Change Law at Columbia

University, observed, “the major job of

lawyers is to work the nuts and bolts

[so] as to translate [climate] aspirations

into reality.”

For example, after years of discus-

sions, COP26 negotiators reached

agreement on the “rule book,” gov-

erning implementation of the 2015

Paris Agreement. Importantly, parties

reached a deal on the rules for Article

6, which calls for the establishment

of a global emissions credit trading

system aimed at both government-to-

government trading and that of private

companies. Parties resolved three major

sticking points: a “tax” on sales of emis-

sions credits that would generate pro-

ceeds for adaptation

nancing in develop-

ing nations; carry-over

credits from the emis-

sions trading regime

developed under the

Kyoto Protocol; and

mechanisms to avoid

double-counting of credits.

is is a classic example of what

the ABA called for in its 2019 climate

change resolution, which urged de-

velopment of “a broad range of legal

mechanisms, including but not limited

to market-based mechanisms and re-

moval of legal barriers to reduction of

greenhouse gas emissions, to achieve

[climate] goals.” ere’s a long way to

go before we know whether a success-

ful global carbon market will emerge,

but lawyers in multiple disciplines will

be busy deploying their expertise in set-

ting up, maintaining, and enforcing

this trading mechanism and in advis-

ing their clients how to utilize market-

based tools.

As another example, UN Secretary

General Antonio Guterres announced

that a group of experts was being cre-

ated to “propose clear standards to mea-

sure and analyze net-zero commitments

from non-state actors.” e group will

submit a series of recommendations to

the UN later this year. Guterres also

called on companies and nancial in-

stitutions to act now to “radically, cred-

ibly, and veriably” reduce their emis-

sions and to decarbonize their portfo-

lios. Lawyers will be playing an outsize

role in helping their clients dene and

articulate their commitments to reduce

greenhouse gas emissions and achieve

other climate-related goals in a respon-

sible and transparent way, consistent

with legal standards and reporting re-

quirements.

Environmental lawyers will also be

actively engaged in the massive infra-

structure buildout that will be neces-

sary for the global energy transition,

guiding projects through nancing,

siting, environmental review, and per-

mitting. is was among the major

themes at a two-day climate change

law and policy conference recently

co-hosted by Arnold & Porter on the

heels of COP26, which showcased di-

verse elements of the environmental

bar. Lawyers from EPA, Treasury, the

Federal Energy Regulatory Commis-

sion, the Council on Environmental

Quality, and congressional committees

spoke about the Biden administration’s

“whole of government” approach to

tackling climate change.

Coming out of COP26, lawyers

will have an opportunity to make a

positive impact in supporting their

private, public, and pro bono clients

in achieving their sustainability ob-

jectives, including those related to

reducing carbon emissions. Realizing

this may be one of COP26’s lasting

legacies.

COP26: Lawyers in Critical Role

as Focus Shifts to Implementation

Attorneys will help

clients make practical

commitments to

reduce emissions

Ethan Shenkman is a partner

in the environmental practice at

Arnold & Porter. Email at ethan.

shenkman@arnoldporter.com.