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New legal horizons with enviro law changes

|Written By Jennifer McPhee

Businesses around the world are taking action on the environment because the environment is becoming big business, according to Ron Dembo, the founder and CEO of Zerofootprint, who spoke to lawyers at a Canadian Corporate Counsel Association conference in Toronto recently.

‘Some industries are seeing that it’s wise for their bottom line and are being proactive,’ says Juli Abouchar.

“There’s a tremendous amount of money to be made doing good,” says Dembo. “This is the new tech.”

Dembo started Zerofootprint - a company that helps businesses and consumers measure and reduce their environmental impact - two years ago because he was observing a tipping point “in the sense that business, which was traditionally sort of antagonistic to the environment, would become co-opted into the environment. And that’s clearly what’s happening now.”

“First of all, people are really believing there is a crisis, and secondly, I think business believes it really has a role, and thirdly, people are seeing they can make a lot of money doing it.

For instance, Goldman Sachs, one of the world’s largest global investment banks, began to invest in wind power two years ago and made $1.5 billion in profit from it last year, Dembo says. And today, Wal-Mart is actually doing more for the environment than Canada is.

“This is really being taken seriously now. I don’t think it’s a fad.”

Unlike other governments in Europe, and some states and cities in the United States, the Canadian government has proven slow to change and is still hedging, but businesses can change on a dime, he adds.

“Government is worried about competitiveness with other countries. For those people to get in a room and all agree is a long slow process. . . . Whereas if you look at a massive company like IBM that has a big presence in China and Canada, IBM can do a lot more quicker, and that sort of has a bigger impact across countries.”

Although many companies are changing particularly in the retail sectors where green branding is exploding, both Canadian industry and government still lag behind other countries. Take any Scandinavian country, says Dembo.

“They look very similar geographically and the mix of businesses is similar. But we are so far behind them - it’s pretty embarrassing actually. Demark has grown its economy by a very large factor and has not increased its electrical energy needs for 20 to 30 years.”

Environmental lawyers say they see some Canadian businesses changing, but only when there is a financial incentive to do so.

“Some industries are seeing that it’s wise for their bottom line and are being proactive,” says Juli Abouchar, a partner at Willms & Shier Environmental Lawyers LLP and former assistant commission counsel of the Walkerton inquiry.

“Where there are economic benefits, it’s a clear win-win. It’s a no-regrets action. Others are waiting until the Ministry of the Environment finds them.”

And even companies that seem to be on the leading edge often still lobby for or against legislation that will benefit the environment, but hurt their bottom line, says Marlene Cashin, counsel at the Canadian Environmental Law Association. “There’s still a lot of double talk going on.”

“Right now, there is a high level of awareness about environmental issues and, absolutely, business is moving smartly to look for opportunities to make money from the green consciousness,” says environmental lawyer Dianne Saxe, of Saxe Law Office. “And lots of folks, particularly in the retail businesses, are jumping to find opportunities to get some of that green for themselves.”

The manufacturing industry is also showing interest in reducing its significant energy costs through energy efficiency, she says, and manufacturers have an incentive to produce less hazardous waste because of rising disposal costs, which will spike again in Ontario when the new land disposal restrictions come into effect this summer.

“However, there are also still many cases where it’s more expensive to do the right thing. And when it’s more expensive to do the right thing, it’s a lot harder to get businesses, and for that matter individuals, to do it.”

Businesses can change quickly, but it’s up to government to set the structure and provide financial incentives, she adds.

“The system we have now favours environmentally bad behaviour.”

However, when change comes - whether it is the looming, somewhat irreversible, impacts of global warming or new laws aimed at curbing emissions - it will also change business for lawyers in many practice areas.

On April 27, the federal government announced its strategy for regulating air emissions, which will include emissions trading.

“The accountants are setting themselves up to compete with lawyers and there are lots of different kinds of lawyers who want to be doing that kind of business,” she says.

“And if there are credits that go with different activities, there will be a lot of work in terms of deciding who owns them and how you verify them and how you record them.”

The increase in catastrophes caused by global warming will also impact insurance and immigration lawyers, she notes.

And lawyers generally play an important role in making change happen because they are well educated, articulate, and have the ear of a lot of people, she says.

Dembo agrees. “Lawyers are pretty influential in almost every corporation and in almost every agency. If you think about marketing from the point of view of the tipping point, which is influence the influences, this is a good marketing place.”

“All the people [assembled at the CCCA conference] can have as much impact as a country,” he says. “In other words, they, their organizations, and all the people they touch - their kids, their kids’ teachers - form a country. And it’s an affluent country. People are not powerless to change things and they don’t have to wait for government to do it.”

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