Climate, sustainability & ESG

New Zealand's scheme was established to incorporate all sectors of the economy, so a wide range of businesses are affected. Some have rights to receive carbon credits, others have compliance liabilities. Our work for corporate clients ranges from providing carbon pass-through advice to oil and gas companies and carbon trading advice to forest owners, to providing robust due diligence around the sale or acquisitions of emissions-exposed businesses or assets, and offering high level interpretation of New Zealand's climate change legislation to major private sector clients and industry associations.

This advice frequently relates to protecting the competitive position of businesses or industries against international competitors with lower carbon costs, and is informed by our long history of involvement with New Zealand's emissions trading legislation. We advised the Ministry for the Environment on commercial legal issues associated with the development of the New Zealand Emissions Trading Scheme, having previously advised the Ministry of Economic Development on the design of the legal framework for an emissions trading market. Earlier, we were also involved in drafting parts of the Climate Change Response Act, New Zealand's core climate change legislation.

We have significant domestic and international carbon trading expertise. Our clients include pioneers in the emissions trading market and we advised on the world's first avoided deforestation project, authored the first International Swaps and Derivatives Association (ISDA) agreement tailored to the New Zealand Emissions Trading Scheme and performed the first trade in New Zealand's Emission Unit Register. We have provided advice to a large number of global investment banks, along with regional governments or government groups from Indonesia, Bangladesh and the Pacific Islands.

Bell Gully's expertise in the area of climate change is acknowledged across leading international directories. Our climate change practice is the only New Zealand team ranked among Asia Pacific regional market leaders by leading directory Chambers Asia Pacific 2023, and individual Bell Gully lawyers have been named in the world-wide climate change rankings of Chambers Global since 2008. Bell Gully is ranked in the top tier for environmental law in New Zealand by the Legal 500 Asia Pacific 2023, which names environment practice leader Natasha Garvan – convenor of the New Zealand Law Society’s Climate Change Law Sub-Committee – as a 'Next Generation Partner' for projects and resource management (including environment). Bell Gully’s team is also ranked in the inaugural Asia Pacific regional edition of the Legal 500 Green Guide Asia Pacific, released in late 2022.

Disputes over pass-through of carbon costs under older oil and gas contracts
Advised numerous clients on disputes as to whether agreements drafted prior to the release of ETS policy and the implementation of the ETS Bill enable carbon costs to be passed through to the customer. We regularly advise on carbon pass-through in gas and other energy supply contracts.

Carbon forestry advice
Advised Māori groups including iwi and iwi consortia, as well as local authorities, councils and corporates on various forestry issues arising from the ETS and the Permanent Forest Sinks Initiative (PFSI), including on the allocation of potential liabilities between landowners and forestry companies.

Fletcher Building EITE allocation and ETS alignment issues
Advised Fletcher Building on proposing amendments to legislation on the alignment of the New Zealand ETS with the Australian carbon scheme (which was repealed in 2014). We have provided advice to Fletcher Building on its level of emissions-intensive trade-exposed (EITE) allocation, to enable Fletcher Building to obtain a comparable level of EITE assistance in New Zealand to that its competitors would obtain in Australia under the Australian carbon scheme.

Development of carbon trading platform
Advised New Zealand's Ministry of Economic Development on legislative changes required to enable the New Zealand Stock Exchange to establish a carbon trading platform for the purpose of exchange trading Kyoto-compliant emission units.

Bangladesh – obligations under United Nations conventions
Advised Bangladesh, the country most significantly affected by climate change, on its negotiating position and key objectives at the Copenhagen, United Nations Climate Change Conference. This work included advising the Bangladesh Parliament on the link between climate change and human rights obligations under United Nations conventions.

Standardisation of ISDA documentation for global trading
Authored comprehensive International Swaps and Derivatives Association (ISDA) documentation tailored to the ETS enabling trading between New Zealand parties as well as trading outside New Zealand. This form of agreement is a key document which our team has later drawn on to advise ISDA on provisions required to standardise a global trading document.

World's first carbon deal for avoided deforestation
Advised the Government of Aceh (Indonesia) on a deal which will protect Aceh's rainforests from logging for up to NZ$1 billion in carbon credits over 30 years. This is the world's first carbon deal for avoided deforestation.

International trading of ERUs
Advised an international investment bank on the purchase agreement for the proposed sale of 250,000 Emission Reduction Units (ERUs) from a New Zealand wind farm for the purposes of on-selling in the EU emissions trading market. During the course of this deal, we identified a conflict between the New Zealand and UK interpretations of the relevant Kyoto Protocol rules, which led to legislative change in the UK.

Opportunities for generating CERs in Indonesia
Advised the Governor of Central Kalimantan (Indonesia) on options for generating Certified Emission Reductions (CERs) and voluntary units from a range of emission reduction projects.

Market-leading tender for the acquisition of New Zealand Units (NZUs)
Advised one of New Zealand's largest electricity generators on New Zealand's first tender for the purchase of NZUs (backed by Assigned Amount Units (AAUs)) from owners of forest land.

Carbon offset programmes​
Advised an international airline on legal issues associated with the establishment of a carbon offset programme for its passengers and on the purchase of ERUs from a New Zealand Projects to Reduce Emissions project.

Dealing in futures contracts for carbon credits
Advised an international investment bank on the regulatory regime for carrying on the business of dealing in carbon credits and carbon credit derivatives in New Zealand, and applying for authorisation to deal in futures contracts under the Securities Markets Act.

Chicago Climate Exchange
Advised on New Zealand's first voluntary carbon emission transaction on the Chicago Climate Exchange.

Aggregation of forestry units for international sale
Developed a suite of carbon trading and aggregation agreements to enable Permanent Forests International to aggregate AAUs arising under the Permanent Forests Sink Initiative (PFSI) and Verified Emission Reduction Units (VERs) held by famers and foresters with small forestry holdings.

Polish electricity generator's purchase of New Zealand ERUs
Advised a Polish state electricity generator on the purchase of ERUs from a New Zealand wind farm.

Australasian bank's securities over carbon credits
Advised an Australasian bank on taking security over carbon credits and over forest land subject to Permanent Forest Sink Initiative covenants or the New Zealand Emissions Trading Scheme.

Contact Energy emissions rulings on downstream activity
Assisted Contact Energy, one of New Zealand's largest energy generators, in obtaining two emissions rulings in relation to downstream activity. This followed our advice to Contact on its obligations under the New Zealand ETS as an opt-in participant, and in particular on its storage and later use of natural gas from a storage reservoir.

Allocation of emissions units to an EITE industry
Advising several large corporate and industrial clients (including Fletcher Building, Carter Holt Harvey, Cavalier Woolscourers and New Zealand Sugar) on their rights and obligations in relation to the free allocation of NZUs to emissions-intensive trade-exposed (EITE) entities under the ETS.

Sale of ERUs and other units to global investment banks
Advised Mighty River Power on its sale of ERUs – one of the primary units of trade in greenhouse gas emissions trading systems – arising from its Rotokawa geothermal plant to Deutsche Bank. There are limited ERUs for sale out of New Zealand. This was one of the only ERU trades to occur in 2011.​​