Emissions trading scheme advisory
Carbon trading and derivatives - Australia
Carbon trading and derivatives - International
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EMISSIONS TRADING SCHEME ADVISORY
Department of Climate Change
Mallesons is a key legal panel member for the Department of Climate Change, the Government department charged with implementing Australia’s climate change policy, including the Carbon Pollution Reduction Scheme (CPRS).
We have undertaken a number of significant projects for the Department in areas including permit registry and scheme implementation.
Lead partners: Louis Chiam and Adam Bartlett.
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Resources sector - carbon cost pass through strategy
We have been retained to provide strategic legal advice, as well as detailed implementation support, to a leading resources company.
Working closely with the client’s internal carbon group, we:
- Assisted the client develop a pass through strategy
- Advised the clients on the risks associated with carbon costs in long term contracts
- Prepared a suite of carbon pass through clauses for use in the client’s supply contracts.
This work was made more challenging because only policy papers or draft legislation were available. Despite this our good relationship with Government and our industry knowledge meant that we were able to provide forward looking advice to pre-empt the likely key issues.
Lead partner: Louis Chiam.
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Advice in relation to reporting obligations under the National Greenhouse & Energy Reporting Act 2007 (NGER)
Under the legislation, entities with carbon and energy emissions have to report on those emissions to the Department of Climate Change. Our client, as a significant producer of emissions, required assistance in correctly classifying its facilities to determine which they would be required to report on. The reporting is linked to the CPRS, and therefore has significant commercial implications for the company.
The legislation is open to interpretation and, at times, is unclear. The Mallesons team used analytical skills and experience to achieve a successful result.
Lead partner: Tim Warman.
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Grange Resources submission for EITE
We assisted Grange Resources in preparing its submission for Emissions Intensive Trade Exposed industry (EITE).
Grange Resources wanted its pelletisation process to be classified as EITE in order to claim the appropriate compensation under the legislation. The Mallesons team worked closely with the client and its environmental consultant to complete the submission in a very tight timeframe.
Lead partner: Tim Warman.
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Review of the Energy Market Frameworks in Light of Climate Change Policies
Mallesons is assisting the Australian Energy Market Commission with its “Review of the Energy Market Frameworks in Light of Climate Change Policies”. We provided advice on the operation of the retail pricing regimes for each jurisdiction in relation to the introduction of CPRS. This included analysing the ability to pass through CPRS related costs, re-open regulated pricing decisions and responsiveness of those decisions to unforecasted CPRS cost increases.
Lead partner: Vishal Ahuja.
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NEMMCO "semi-dispatch" changes to the National Electricity Rules
Mallesons is assisting National Electricity Market Management Company Limited (NEMMCO) with drafting the “semi-dispatch” changes to the National Electricity Rules regulating the operation of the new wind farms in the National Electricity Market. The changes require new wind farms to participate in central dispatch and limit their generation at certain times, particularly at times of network congestion. This introduced a major change to the way wind farms participate in the electricity market.
Lead partner: Vishal Ahuja.
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CARBON TRADING AND DERIVATIVES - AUSTRALIA
Australian Financial Markets Association's documentation in trading in carbon permits
We acted on, and coordinated, the preparation of the standard Australian carbon trading documentation for the Australian Financial Markets Association's documentation in trading in carbon permits, which linked in with our role as the Australian legal counsel to the International Swaps and Derivatives Association. Our ability to perform this role was enhanced by our breadth of experience in financial markets trading as well as our experience in carbon-related and sustainability matters.
Lead Partner: Scott Farrell.
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Trading of environmental products
We provide advice to a range of clients in respect of their trading of environmental products, including Greenhouse Gas Abatement Certificates, Gas Electricity Certificates, Renewable Energy Certificates and Green Power Rights. Our clients include TRUenergy Societe Generale and BP Energy Asia.
Lead Partners: Martin James, Scott Farrell and Louis Chiam.
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Assisting with Carbon Trading Documentation
Mallesons is assisting Westpac on some standard carbon trading documentation to allow trades in ETS credits before the start of the scheme.
Lead Partner: Scott Farrell.
Lihir Gold Limited sale of Certified Emissions Reductions
We are acting for Lihir Gold Limited in selling Certified Emissions Reductions (CER) through a derivative-style ERPA contract. The CERs were produced from geothermal energy at Lihir’s gold mine in Papua New Guinea and sold to a British bank.
Lead Partner: Dominic Bortoluzzi.
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- Acting on, and coordinated, the preparation of the initial stage of the standard Australian Renewable Energy Certificate documentation for the Australian Financial Markets Association Electricity/Energy Committee.
- Advising an international company on a large proposed trade of Australian Environmental Units with an Australian entity, including advising in relation to a bespoke contract for that transaction.
- In conjunction with AFMA we prepared the Australian Carbon Addendum for use by those entering into OTC derivatives in relation to electricity in Australia.
Lead Partner: Martin James.
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CARBON TRADING AND DERIVATIVES - INTERNATIONAL
- International and comparative sustainability, climate change policy and regulatory review for a group of leading multinational and Asian corporates based in Hong Kong.
- Form of emission reduction purchasing agreement and user notes for a major European energy company for use in Asia.
- Tender review, bid assistance and regulatory advice to a major European energy company in respect of carbon credits from eight wind farms in China.
- Advising Cathay Pacific and Dragonair on the procurement of carbon credits from CDM projects in Asia and the development of the second phase of their carbon offset programme, the first by any Asian airline.
- Advising a European utility client on Kyoto and CDM compliance issues where a unilateral CDM project was converted into a bilateral CDM project, and preparing documents for submission to the UNFCCC Secretariat and National Development and Reform Commission, China.
- Assisting a carbon developer to structure coal to biomass power CDM projects in Guangdong and Hunan provinces, China.
- Advising an international investment bank on CDM regulatory issues in respect of the proposed acquisition of a Chinese wind farm developer.
- Assisting a multilateral development bank on implementation issues in respect of landfill gas CDM projects in Dalian and Huizhou, China.
- Advising a European bank on back to back carbon contracts and secondary carbon market issues.
- Advising a major US energy company on leasing and control arrangements in respect of clean energy and CDM projects in China.
Lead Partner: Christopher Tung.
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Lion Nathan’s first certified carbon neutral beer in Australia - Barefoot Radler
Mallesons assisted Lion Nathan to develop and launch the first certified carbon neutral beer in Australia - Barefoot Radler.
We advised on all aspects of the preparation and launch of Barefoot Radler. This included extensive advice on the advertising and packaging promoting the carbon neutral features of Barefoot Radler. To obtain certification from the Department of Climate Change for the first “carbon neutral beer” in Australia, Mallesons also advised on the analysis of the Barefoot Radler lifecycle, the relevant documentation with the Department of Climate Change to achieve certification and the purchase of carbon offsets.
Lead Partner: Scott Bouvier.
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- Representing clients in respect of proceedings commenced by the ACCC for allegedly engaging in misleading or deceptive conduct in green marketing.
- Advising clients in relation to various "green" energy advertising issues. Green marketing issues are critical to energy retailers, who face both strong customer demand for green products and close regulator scrutiny of claims made.
- Assisting clients to prepare guidelines to avoid misleading or deceptive conduct when making “green” claims in advertising.
Lead Partner: Amanda Bodger.
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DEWR Canberra City headquarters project
Mallesons is acting for Willemsen group in negotiating a green lease for the letting of 8000 square metres to the Department of Environment and Water Resources for its new Canberra City office.
We successfully navigated a green lease solution for the landlord client dealing with the Federal enforcer, and keeper of the Federal Government’s green building policy.
Lead Partner: Chris Wheeler.
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Discovery House Project
Mallesons is acting for IP Australia in the 11,000 square metre extension project of Discovery House. We negotiated and prepared the green lease for the project and documented the 4.5 ABGR requirements for the construction of the new wing.
We successfully negotiated a green building solution for IP Australia to achieve a cutting edge green building outcome.
Lead Partner: Chris Wheeler.
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Section 92 Project
Mallesons is acting for NDH Group 5’s Green Star building -block 2 section 92 City- in the negotiation with Bovis Lend Lease of the construction agreement incorporating green building obligations.
We were able to devise a green building construction regime of obligations upon the builder to ensure that the building was able to achieve cutting edge green building outcomes and withstand tenant demands for green solutions.
Lead Partner: Chris Wheeler.
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AFP Edmund Barton Building project
Mallesons is advising, preparing and negotiating the $200 million green building office development to the AFP of the Edmund Barton Building. This deal involved a detailed analysis of the Commonwealth's Energy Efficiency in Government Operations (EEGO) policy and negotiating compliance obligations into a green lease which sort to define an equitable distribution of green obligations risks between the parties.
The matter was innovative as it involved interpreting the Commonwealth’s EEGO policy and then translating it and its obligations into an acceptable risk-minimisation model.
Lead Partner: Chris Wheeler.
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Mandatory energy efficiency disclosure
Advice on the Commonwealth’s proposed mandatory building energy efficiency disclosure regime and the key implications for buying and selling commercial property.
Lead Partner: David Bell.
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Infigen Energy - global rebranding of Babcock and Brown Wind Partners Group
We assisted Babcock & Brown Wind Partners Group with its global rebranding to Infigen Energy. Babcock & Brown Wind Partners Group is a leading independent renewable energy business with interests in 41 wind farms across Australia, the US, Germany and France. It was originally created by Babcock & Brown, a global investment and advisory firm, which collapsed as part of the global financial crisis.
Mallesons coordinated the rebranding on a global scale and advised Babcock & Brown Wind Partners Group on its new branding strategy. We initially coordinated clearance searches across the world for a short list of potential new names and advised on the obstacles to trade mark registration and potential risks associated with each of the short listed names. Based on this advice, the name “INFIGEN” was selected. Mallesons also coordinated the filing of trade mark applications in eight countries, including Australia, the US and Community Trade Mark applications covering the EU. We will continue to advise Infigen on its branding strategy and brand protection issues and will coordinate the prosecution of its Australian and foreign trade mark applications.
Lead Partner: Scott Bouvier.
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Section 63 development project
We are investigating the possible opportunities available in using alternative energy sources for accreditation under the Green Building Council of Australia (GBCA) green star rating tool for office developments.
The matter stretched new boundaries regarding sustainable ideas.
Lead Partner: Chris Wheeler.
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NEMMCO wind energy forecasting system
Mallesons is assisting NEMMCO with the procurement and implementation of a wind energy forecasting system. When complete, the system will allow data from wind farms to be plugged in to NEMMCO’s electricity grid management system so that energy generated by wind farms becomes part of the national energy market. We are also negotiating access licences for research bodies and universities, and data licences with the wind farm and weather data providers.
Lead Partner: Wayne McMaster.
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- Acting for EnergyAustralia on a green products sale contract with Origin. Lead Partner: Dominic Bortoluzzi.
- Acting for Stanwell on green products contracts. Lead Partner: Dominic Bortoluzzi.
- Preparing renewable energy certificate (REC) purchase agreements for Stanwell based on ISDA documents. Lead Partner: Dominic Bortoluzzi.
- Acting for TRUenergy in connection with its REC procurement program, including both ISDA based documentation and bespoke bilateral transactions. Lead Partner: Louis Chiam.
- Drafting and prosecuting patent applications for wind farm technology. Lead Partner: Wayne McMaster.
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- Acting for Sustainability Victoria in advising and drafting contracts in respect of Sustainability Victoria’s Green CBDs Program, in which Sustainability Victoria enters into arrangements with major Melbourne CBD landlords to reduce the ecological footprint of their buildings. Lead Partner: Louis Chiam.
- Advising a leading Australian mining company on a compliance strategy for its carbon compliance. Lead Partner: Louis Chiam.
- Advising on Queensland Government policy regarding sustainable and beneficial use of ‘associated water’ extracted from coal seam gas mining. Lead: Matthew Austin (Special Counsel).
- Advising major transport service operator on the issues involved in becoming carbon neutral, including an assessment of their carbon footprint and implementation of strategies to become carbon neutral in the coming years. Lead Partner: Stephen Davis.
- Conducting Corporate Social Responsibility (CSR) and sustainability training for a multi-national food manufacturer assisting the client in the audit of its corporate sustainability ‘red flags’ to then develop sustainability strategies around carbon and water consumption. Lead Partner: Stephen Davis.
- Conducting training for numerous corporate clients in Australia and Asia on sustainability and CSR and trends they should observe and respond to in their national and international operations. Lead Partner: Stephen Davis.
- Trade mark advice and filings, as well as drafting copyright and trade mark licences, related services agreements, and intergovernmental agreements relating to various initiatives. These initiatives include Resourcemart, sustainability-themed TAFE courses, CCAT Litter Assessment Methodology, and Keep Australia Beautiful Victoria. Lead Partner: Wayne McMaster.
- Drafting patent applications for green fuel blends. Lead Partner: Wayne McMaster.
- Drafting patent application for a low lead brass formulation, and advising on related patent dispute. Also related trade mark application for “EBRASS”. Lead Partner: Wayne McMaster.
- Advising a NSW-based consortium of three power generators on the development of a new coal mine in central NSW. Scope of advise included the legal strategy for minimising the development assessment risk of obtaining approval for a project with potentially significant climate change impacts.
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LaTrobe Valley Post Combustion Capture Project
We are acting for CSIRO in the LaTrobe Valley Post Combustion Capture Project, a joint collaboration between Loy Yang Power, International Power Hazelwood, government and researchers from CSIRO’s Energy Transformed Flagship and the CO2CRC (including Monash and Melbourne Universities) for research and development of post combustion capture technology.
Lead Partner: Scott Bouvier.
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Ultrabattery Licensing Agreements
The UltraBattery is a hybrid energy storage device developed by CSIRO that integrates a supercapacitor with a lead acid battery in one unit cell. The Ultrabattery has automotive applications (including for hybrid electric vehicles), motive power and traction applications and stationary energy applications.
Integrating a conventional car engine with a battery powered electric motor in hybrid electric vehicles achieves the dual environmental benefit of reducing both greenhouse gas emissions and fossil fuel consumption from transport. UltraBattery technology also has the potential to overcome the issue of intermittent power generation associated with wind and solar power, which remains a fundamental road block for the widespread uptake of renewable energy resources such as these.
CSIRO has established Smart Storage, a technology start-up that will develop and commercialise battery-based storage solutions for various applications, and has licensed the Ultrabattery technology to a third party for exploitation (including research and development) for certain applications outside Australia.
Mallesons advised CSIRO on the structure of its global licensing agreements for the Ultrabattery technology and drafted agreements which implement licensing arrangements for improvements to the Ultrabattery technology that may be developed by CSIRO and its licensees. Mallesons drew on its extensive technology licensing experience to provide advice regarding the complex global licensing arrangements that CSIRO was seeking to implement.
Our lawyers prepared amendments to existing licence agreements for the Ultrabattery technology to implement complex field limitations and licences relating to improvements to the Ultrabattery technology. Mallesons also provided advice in connection with proposed sub-licensing arrangements and agreements between CSIRO and Smart Storage, the start-up company which was established to develop and commercialise the Ultrabattery technology for certain applications.
Lead Partner: Scott Bouvier.
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- Advising a client in relation to a carbon capture and geological storage (CCS) project joint venture. Lead Partner: James Fahey.
- Advice to EnergyAustralia on contracts in relation to two waste-methane biofuel generators. Lead Partner: Dominic Bortoluzzi.
- Acting for a consortium of coal electricity generators in relation to a greenfields power project. Lead Partner: Dominic Bortoluzzi.
- Advising EnergyAustralia on a biomass power purchase agreement at Lucas Heights. Lead Partner: Dominic Bortoluzzi.
- Advising Sydney Water on connecting a biomass-fuelled electricity plant to the existing electricity infrastructure network. The plant supplies between 10 and 50% of the electricity for the associated water treatment facility. Lead Partner: Dominic Bortoluzzi.
- We are working on a new 400MW power station in Western Australia which as part of the Development Approval process is required to have 100% of its carbon captured. This means there will be a carbon off-take contract, probably the first of its kind we will draft. Lead Partner: Dominic Bortoluzzi.
- Advising EnergyAustralia on its biomass electricity generators at Woodlawn and Lucas Heights. Lead Partner: Dominic Bortoluzzi.
- Acting for the owner of a 1600MW brown coal fired Power Station which is building a coal drying demonstration project which will reduce the coal moisture content from 60% to approximately 12% resulting in less energy to convert the coal into electricity. This project also includes an Australian first carbon dioxide capture scheme. Lead Partner: Stephen Davis and James Forrest.
“Depth of practice, top legal talent and high-profile clients have secured Mallesons Stephen Jaques’ reputation as one of the pre-eminent Asia-Pacific law firms.”
PLC Which Lawyer? Yearbook 2007