Climate Change

"[O]ffers strong national capabilities in emergent climate change litigation and policy advice."

Chambers USA 2022

Climate change is not only a global issue but it also spans several areas of law. For that reason, Baker Botts has created a global and multidisciplinary approach to providing climate services. The Climate Change Practice includes lawyers skilled in corporate, environmental, international tax and project finance law. This group also includes lawyers from both our U.S. and international offices, including Washington, D.C., Houston, Austin and London. Because of this depth and diversity, no climate issue is too complex.

Our experience covers every aspect of climate change. Our projects include defending clients in legal actions based on past climate emissions, setting up international carbon investment funds to structuring Clean Development Mechanism (CDM) projects in Malaysia, and advising on compliance options under the European Emission Trading System to analyzing options under Joint Implementation in Russia. We also help U.S. corporations develop and implement carbon regulation advocacy, compliance and litigation strategies.

In addition, Baker Botts helps clients address the myriad issues associated with carbon capture and sequestration (CCS), including regulatory and permitting requirements, allocation of liability, and property rights. We helped pioneer the legal parameters for defining "pore space" for CCS, have served as an expert peer reviewer on the leading methodology for CCS for the American Carbon Registry and have helped permit the construction of one of the first carbon capture facilities for a coal-fired power plant. We also wrote the first contract provisions that legally separated the physical CO2 from its global warming potential to enable trading of sequestered carbon used for enhanced oil recovery.

Climate Torts
Baker Botts has defended clients in legal claims based on past and continued carbon emissions. These engagements include defending clients from climate tort claims brought by the City of Kivalina and the Alaskan Village of Kivalina against power, oil, and coal companies (Native Village of Kivalina, et al. v. ExxonMobil, et al., No. 09-17490) and tort claims brought by local land owners and residents affected by Hurricane Katrina against power and oil companies (Comer, et al. v. Murphy Oil USA, et al., No. 07-60756). Because of our thorough knowledge of climate law and policy and extensive experience litigating complex tort actions rooted in environmental issues, we are well suited to defend clients in legal actions associated with climate change.

Greenhouse Gas Regulation
Baker Botts is actively engaged at all levels in advocacy efforts related to EPA’s proposed Clean Power Plan (CPP), which would establish for the first time carbon emission standards for the power sector under Section 111(d) of the Clean Air Act. As proposed, the CPP would be the most expansive, expensive and intrusive program in the history of EPA. Both prior to and following the proposal of the CPP, Baker Botts has worked to educate EPA and key environmental and citizen groups on innovations that would moderate (although not eliminate) the potentially harsh impacts of the CPP. We continue to meet with EPA officials regarding the CPP, provide tools for clients to use with local and state agencies, and help clients develop long term plans that address the CPP. Baker Botts also is participating in the rulemaking process for EPA’s standards for new power plants under Section 111(b) of the Act, and helping clients develop and permit new generating resources.

Emissions Credits and Trading
Baker Botts has extensive experience in emissions trading programs across multiple air pollutants, and continues to apply that experience in the relatively new arena of carbon credit trading and offset programs. We assist clients in developing, contracting and trading renewable energy credits in the existing markets, such as the Regional Greenhouse Gas Initiative in the east and California’s Cap and Trade program. We help clients maximize the value of their environmental investments and to think broadly about the potential market benefits of new infrastructure and resource investments, both inside and outside the borders of the United States.

Strategic Planning Analysis and Advice
We think strategically and holistically about our clients’ compliance obligations. The lawyers at Baker Botts understand that our clients face myriad compliance obligations under a number of EPA programs, including waste, water and air. With the President’s announcement of his Climate Action Plan and EPA’s recent proposal of the first ever carbon emission standards for the power industry, these obligations are increasing and becoming even more complex. We help clients to both break down regulatory requirements to a granular level to determine what clients need to do “right now” and to think broadly about how the potential outcome of the rulemaking fits with existing compliance obligations. We want our clients to get the maximum potential benefit out of any decisions they make, whether that decision is to retire existing infrastructure or to bring on new resources.