Legal Aspects of Forest Carbon Projects

1. Legal Aspects of Forest Carbon Projects An overview for project participants

2. Overview Forest carbon projects raise a range of complex and overlapping legal issues, including difficult regulatory, organizational, and transactional questions

3. I. REGULATORY ISSUES Between project parties and government entities, based on applicable host-country laws and regulations Key regulatory questions: • Do project participants have adequate land tenure in the project area? • What laws apply to, and which government bodies have authority over, project activities? • What are relevant regulatory requirements? • What taxes will be assessed?

4. Tenure: definition • Land tenure - legal or customary relationship of an individual or group with respect to land and other natural resources. • Tenure rules determine who can use what resources for how long, under what conditions. • Adequate tenure is an essential precondition for a forest carbon project

5. Tenure: rights in land, forest & carbon Rights in land and forest Rights in carbon Minimum: right to carbon benefits from project activities right to transfer carbon benefits Generally must be implied from law May be closely tied to private rights in land May belong to the people as a whole Or another arrangement • Minimum: • use rights sufficient to support project activities • right to exclude incompatible uses • for the duration of project activities • Customary rights may be sufficient if secure and recognized by law

6. Tenure problems • Land title not validly vested in local users • Land use arrangements poorly defined or recorded • Unclear who has rights to forest carbon

7. Applicable law, regulatory authorities • Sources of applicable law • Framework environmental andforestry laws • Laws on: • land and natural resources, including mining, timber, oil, gas • agriculture • planning and infrastructure • indigenous peoples • Regulatory authorities • Major players: Departments or Ministries of Environment and Agriculture • Designated National Authority (DNA)

8. Regulatory requirements Will vary in each country, locality, and even project. May include: • Permits for project activities • E.g. tree harvesting, exploitation of non-timber forest products, agricultural activities • Environmental Impact Assessment (EIA) • Registration of supporting entities Sustainable forest management certification (e.g. FSC), if sought, means additional requirements

9. Potential taxes Taxes may owed on the carbon credit transaction as well as underlying project activities – for example, timber harvests and sales are generally subject to tax Types of taxes that may apply: • Sales and VAT taxes - Charged on value of good, service, or property, at the time of its transfer • Income taxes - Based on financial income (including carbon revenue) of persons or legal entities • Property taxes - Based on property value • Duties/tariffs - Taxes on value of imported or exported goods • Carbon revenue taxes - Apply to carbon credits or projects in some countries • Guarantees part of carbon revenues to government

10. II. ORGANIZATIONAL ISSUES Between project participants, any representative organization, and supporting entities, based upon written or oral agreements Include: • Project governance • Benefit sharing • Fund management

11. Project governance & benefit sharing • Good project governance reduces costs of project administration and risk of project failure • If project participants are numerous: • May want to officially form an organization, consortium, or business • Should appoint an individual, entity, or small group to act on behalf of project participants • Project participants, supporting entities should agree in advance: • Roles and responsibilities for underlying project activities and carbon transaction • Procedures for inclusive, transparent decision-making and dispute resolution • Revenue-sharing with community, between project participants, and / or with the government

12. Fund management Centralized, fund management is important as the number of parties and/or complexity of the transaction increases, e.g. due to: • Numerous project participants • Advance payments • Use of payment “netting” Fund management is generally entrusted to a bank or other financial institution, with specific duties, rights, and responsibilities agreed by contract

13. 3. Transactional issues Between forest carbon sellers and buyers or investors, based on oral or written agreements

14. Emissions Reduction Purchase Agreement • Forward Purchase • Spot Purchase • Carbon credits yet to be issued and/or generated • Buyer shares risk • Lower credit prices • Advantages for small-scale sellers include: • Predictable revenue • Up-front funding • Carbon credits already generated and issued • Low risk to buyer • High credit prices

15. Forward purchase agreement: key challenges Some particularly important – and difficult – contract clauses in forward purchase agreements for forest carbon: • timing and structure of payments • allocation of project development transaction costs • allocation of risk and delivery liabilities • dealing with default and remedies

16. Price and payments: key issues

17. Allocation of project development transaction costs • Include costs of: • Obtaining 3rd party validation & verification • Registration of carbon credits • Issuance of carbon credits • May also include costs of: • Writing Project Design Document • Monitoring project activities • May be significant: allocation will affect price

18. Allocation of risk and delivery liabilities • Credits not delivered because, e.g.: • Project underperforms • Standards body validates, verifies few or no credits • Events outside of control of project participants disrupt project activities • Change in law adversely affects the project • Credits issued, but not delivered as promised • Risk must be allocated between buyer and seller • Buyer generally not entitled to reimbursement for advance payments, costs • Exposed to project risks insofar as prepaid for expected credits or paid transaction costs

19. Example: Force Majeure, change in law • Force Majeure • “Act of God” outside of control of participants • Neither party liable for loss caused by force majeure • Termination of agreement may be available • Insects, forest fire • High risk factors • May require proof that extra precautions were taken before sellers excused from delivery due to forest fire, insect infestation • Change in law • Generally very complex, heavily negotiated • Many possible contingencies • Carbon cap in seller’s country destroys additionality • Carbon regulation in buyer’s country does not recognize project’s emission reductions • Seller’s government expropriates land or carbon • New taxes destroy the value of the transaction for one or more parties • Many more possibilities…

20. Default & Remedies • Triggers remedies like: • Termination of agreement • Monetary damages • Against seller: • Liability for replacement credits • Exclusion from planned subsequent transaction • Payment withholding • Against buyer: • Recovery of credits • Recovery of outstanding payments • “Event of Default,” e.g.: • Failure to ensure project implementation as promised • Failure to pay when due • Termination or bankruptcy of a party • Material breach of a representation • Failure to comply with validation, verification, monitoring obligations

21. Strategizing Around Legal Costs • Specialized legal support vital to: • Assess tenure rights, strategies for legal compliance • Create robust project governance and fund management structures • Secure carbon financing • Legal support at key stages: • Lays a firm foundation for project activities • Avoids future costs • Reduces risks of dispute, project failure • Limiting legal costs • Cooperation, collaboration between similar projects • Free or low cost resources from non profits, government • Additional support for lawyers wishing to enter the field

22. Key Resources • Costenbader J, ed. 2010. Legal Frameworks for REDD: Design and Implementation at the National Level. Environmental Policy and Law Paper No. 77. IUCN: Gland. • Takacs D, ed. 2009. Key Legal Questions in Allocating Forest Carbon-as-Property, pp. 13-20 in Forest Carbon: Law + Property Rights. Conservation International: Arlington, VA. • Hawkins S. et al. 2010. Contracting for Forest Carbon: Elements of a Model Forest Carbon Purchase Agreement. Forest Trends: Washington, DC. • Katoomba Group Online PES Contract Toolkit: http://www.katoombagroup.org/legal_contracts. • CERSPA Initiative: http://www.cerspa.com.

23. Thank you! Slayde Hawkins, Legal Advisor & Policy Analyst, Forest Trends shawkins@forest-trends.org