With the government hoping to kick-start a ‘green recovery’, so that the UK emerges from the recession as a low-carbon economy, environmental law remains high on the agenda.

So, with work expected to grow significantly in key areas of planning, renewable energy and climate change, this is a specialism which could prove recession-resistant and very attractive to firms seeking to diversify.

This doesn’t mean that all the ‘traditional’ areas of environmental law are on the up – but recent changes to planning law and emissions are creating new, potentially lucrative opportunities.

David Brock, partner with national law firm Mills & Reeve, is chair of the Law Society’s planning and environmental law committee. ‘Twenty years ago, everyone thought environmental law was going to produce a whole stack of work,’ he says. ‘So some firms invested large amounts of money and waited a long time, but it didn’t come in the way people thought it would. I don’t think anything fundamental has changed since then.

‘Now, every law firm has to be able to deliver environmental law advice as a basic requirement, because it touches on so many aspects of their work.’ But, says Brock, it still takes a high level of skill to do the specialised work, so firms are unlikely to see the area as a quick fix to cashflow problems.

Nicola Raistrick, planning and environmental law partner with Winckworth Sherwood, which has offices in London, Oxford and Chelmsford, acts for public and local authorities, developers and retail companies. She says: ‘The work isn’t recession-proof, but there is a sense of being busier. I am not sure why but things aren’t as gloomy as they were.

‘However, it is a picture of the haves and the have-nots in terms of work. The major infrastructure projects that are government-backed are progressing, but the big, privately funded schemes are really struggling.

‘Most environmental lawyers do a lot of due diligence work on corporate and property transactions. That is the bread and butter work and it has taken a real hit.’

The recession is also having an impact on work from local authorities, says Raistrick. ‘They are just not getting the applications, so they have an awful lot of capacity. Previously, they would pass work out on planning agreements or new local plans, but I sense more is now being done internally, though they still tend to outsource the major applications. We generally don’t see a lot of environmental work from them except on the big regional development agency schemes where there is always a need for an environmental impact assessment.’

One area where practitioners will be looking for new work, she says, is the new Infrastructure Planning Commission (IPC), established under the Planning Act 2008 to decide on major, controversial projects. While firms are still waiting for guidance on how it will work in practice, she believes it is likely to lead to a tranche of work in environmentally focused judicial review applications.

Brock says applications to the IPC will be ‘heavily front-loaded’ in requiring legal advice to get them right, but there is then a ‘strong bid’ by the government to exclude lawyers from the commission process by restricting oral examination and cross examination. ‘It will be dangerous for the government, because when our clients jump up and down with rage at the end saying they have been disenfranchised, we will bring a judicial review.’

‘Anti-lawyer’ agendaRussell Harris QC, a member of environmental law set Landmark Chambers, says some members of the bar believe the government has an ‘anti-lawyer’ agenda. ‘A more polite way of putting it is that the government wants to speed up delivery, and that isn’t always consistent with lots of lawyers,’ he says.

‘Whether that results in better decisions or not is another matter. There will certainly be more judicial reviews because the regulations are complex and mandatory, and the area for discretion for decision-makers is limited. The sterner the environmental regulations become, the harder it is to get them all right, so the more scope there is for constructive challenges by clever lawyers on behalf of clients who want to stop a project.’

It will be interesting to see how the commission develops, says Brian Greenwood, head of European firm Taylor Wessing’s environment team, ‘bearing in mind the Conservatives have said they won’t retain it if they get back into power’.

For Greenwood, a member of the Law Society’s planning and environmental law committee, the recession may have hit the due diligence work, but there is so much other environmental work around, ‘it is enough to take your breath away’.

A specialist in carbon emissions trading and renewable energy projects, he says: ‘Environmental prosecution work doesn’t go away, while the government’s carbon reduction commitment (CRC) scheme is on everyone’s lips because it is effectively a new tax on commerce and industry. Will it throw up more work? Without a doubt.’

Michael Woods, who heads Eversheds’ London environment team and carbon trading practice, agrees. ‘The CRC is very complicated and will affect some 5,000 energy-intensive businesses, so even the likes of Eversheds will probably be covered by it,’ he says. ‘It will mean a lot of work for environmental lawyers advising companies wanting to know if they are going to have to comply with the regime.’

Litigation in the ‘carbon space’ is also likely to increase, he says. ‘With more legislation, more regulation, more compliance and more money at stake, there is more potential for companies to feel aggrieved at the way regulators have approached matters and to consider challenging decisions. There is also the potential for claims regarding the effects of pollution from CO2 over time.’

Woods, a former Department for Environment, Food and Rural Affairs advisory lawyer, is co-chair of the UK Environmental Law Association (UKELA) working party on climate change. ‘Carbon is proving a buoyant source of work,’ he says. ‘Being a climate change lawyer is seen as a new area, so there is a very limited number of true specialists.’

It might be attractive to firms wanting to diversify because it is throwing up new opportunities, he says. But, he adds, echoing Brock’s caveat, you have to be ‘heavily involved’ in the sector to advise on it effectively, given the intercon­nectedness of the three layers of regulations – at the international level (with the uncertainty over the Kyoto Protocol), at the EU level (with the emissions trading scheme), and at the UK level (with the CRC).

Funding issuesAnother major growth area is renewable energy, with the government pushing to generate 35% of Britain’s electricity from renewable sources by 2020. John Deacon, head of the London renewable energy team at US firm Hunton & Williams, acts for the Crown Estate on its wind farm projects.

‘There are funding issues,’ he says. ‘The project finance market completely dried up during the last two months of 2008 and the first quarter of this year, and the renewables market was no exception. I did wonder if we were all going to be out of a job. But things have loosened up significantly. There is undoubtedly more money in the system and we have new projects coming on-stream, although it is still very challenging raising bank debt for offshore wind farms.

‘So, we are doing all right after a rough start to the year and we are going to be hiring. The percentage of power being generated in the UK from renewable energy is microscopic, so the industry will have to grow hugely if it is to hit its targets.’

Both the EU and the government’s better regulation agendas are also driving more work, says Peter Kellett, chair of UKELA’s council. ‘This will produce huge changes aimed at making environmental regulations more effective.’

Kellett, who works for the Environment Agency, says: ‘There is also the decriminalisation of a lot of environmental offences and the introduction of civil penalties under the Regulatory Enforcement and Sanctions Act 2008 to come in the autumn. I used to work in private practice and this will be a feeding frenzy for lawyers because it is a huge change.’

But diversifying into environmental law shouldn’t be seen as a ‘life raft’ unless you are really interested in European, public and administrative law, says Kellett. ‘Otherwise, you may find it no less difficult than any other area where you are struggling. But if you do have that aptitude, you could really enjoy it.’

Deacon agrees: ‘It is a good specialism to move into if you are a young lawyer looking to qualify in a new area where there will be a reasonable amount of work for the next 10 to 15 years. If you are a mature lawyer, it would be harder to step into this area because there are already a significant number of well-known practitioners and it would be difficult to persuade a client to give you work if you don’t have any relevant experience.

‘Firms do try to bring in leading practitioners to build renewable and climate change practices, but we mostly deal with established practices such as SJ Berwin, Berwin Leighton Paisner, Norton Rose and Linklaters. There are also very good firms in the south-west, where the wind farm market started, including Burges Salmon and Bond Pearce.’

Overall, practitioners feel that green issues are holding their own, despite the recession. Raistrick says: ‘Green issues aren’t being squeezed out because the regulations have to be complied with. Environmental issues may be one of the reasons why some schemes won’t be viable, but I haven’t seen that leading to any reduction in standards.’

Access to justiceThe continued focus on the green agenda is good news for the environmental pressure groups. However, for Friends of the Earth (FoE) head of legal Phil Michaels, the biggest issue remains access to justice.

‘There was a report last year on access to environmental justice by Lord Justice Sullivan which concluded that the UK is not meeting its international obligations because the system for challenging bad decisions is prohibitively expensive,’ he says. ‘Lord Justice Jackson, who is reviewing civil costs, seems to share that conclusion.’

FoE operates a pro bono Rights and Justice Centre for community groups and members of the public. ‘We are currently overwhelmed by potential case work,’ Michaels says. ‘The big issue is the gap between laws being made and being followed. There is a huge amount of European environmental legislation, but the question is how much is being properly complied with at the national level.’

FoE is part of the Coalition for Access to Justice for the Environment, which includes WWF, RSPB, Greenpeace, Capacity Global and the Environmental Law Foundation (ELF). The coalition is intervening in a complaint being brought against the UK government on costs issues before the compliance committee of the international Aarhus Convention on access to justice.

Debbie Tripley, former head of legal at Greenpeace, is ELF’s chief executive. The foundation provides a pro bono advice and referral service for community groups and individuals with member firms providing about four to five hours of free advice. ELF Plus takes on cases with a significant public interest element.

Tripley says they have seen a significant tailing off in inquiries over the past six months, which they put down to the recession and the reduction in planning applications for developments.

It is also harder to get independent funders or lawyer organisations to donate towards any projects, but she says: ‘Firms are still joining us and, touch wood, no one has withdrawn their membership because of the credit crunch or said they can’t afford to do pro bono work.’

For Greenwood, environmental teams up and down the country, with the right clients, have an ‘awful lot of work’. However, he says, the focus shouldn’t just be on the large firms.

‘If you are Peter Kingdom [the Norfolk solicitor played by Stephen Fry in the ITV series], you still have to have some basic knowledge of environmental law because it touches on all aspects of legal practice. If you miss a point, then you need to start worrying about negligence suits.

‘If firms want to diversify, there are massive areas of environmental law where assistance is required from lawyers who understand it. But the work is very complex – it is a sad irony that in a world where we are told to be paperless, the CRC consultation paper is 203 pages long.’

The need to get up to speed quickly in these complex areas has prompted the Society’s planning and environmental law committee to plan seminars for newly qualified solicitors and generalist practitioners this autumn.

Change begins at home though – Tripley would like to see lawyers start looking at their own carbon footprint. ‘We would like to do more work with small to medium-sized firms, but there has been very little take-up,’ she says. ‘That is probably due to the credit crunch with firms feeling they have enough on their plates, but it would be wise to start thinking about it now.’

Grania Langdon-Down is a freelance journalist