“The law [mass noun]: the system of rules which a particular country or community recognises as regulating the actions of its members” (Oxford Dictionary).
So whose interests does this “system of rules” serve when it comes to the environment versus economic development?
Martijn Wilder should know. British firm Chambers and Partners, which produces respected legal rankings, rates him the world’s No. 1 climate change lawyer. He heads up legal behemoth Baker and McKenzie’s global environmental division, overseeing 50 offices from his Sydney HQ. When Gabon wanted an environmental code last year, Wilder flew to Paris and helped write it.
It’s a live question whether the law acts to protect the environment or has been co-opted by wealthy propertied interests to serve their ends. Can legal avenues be relied upon to rein in global warming? Those who’ve tried (and failed) to challenge new coal mines, or seen tighter vehicle emissions standards bogged down in court, might wonder.
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Wilder digs in firmly behind his chosen field. “In many ways, law is the only tool to get an outcome in the environmental space,” Wilders told The Power Index. “Without law, there’s no protection.”
Doesn’t it sometimes seem that industry wields mighty structural power over climate law? “Yes and no,” Wilder said after a pause. “The issue is to what extent the law is, in its development, compromised.”
His thinks that when the law fails the environment, it’s the fault of politicians who draft the law, not a problem with law as an institution, or with costs, judicial appointment or standing (the right to take out legal action). And Wilder wants politicians to lift their game by placing more value on science, via a national science advisory panel with real clout (the government’s chief scientist Penny Sackett quit after meeting the PM just once in two years).
“It’s one thing for people to voice their opinion, it’s another for governments to be swayed in decision-making by Andrew Bolt.”
“Why is there this sudden obsession with non-expert advice?” Wilder asked over the phone from Sydney (he was walking to collect his kids from school). “There seems to be a wave of hysteria with respect to a range of environmental issues at the moment … It’s one thing for people to voice their opinion, it’s another for governments to be swayed in decision-making by Andrew Bolt.”
It’s a window into how Wilder operates. He’s no dry and dusty black-letter lawyer. He borders on advocacy; he thinks climate change is a serious problem, and he unequivocally backs carbon pricing. He publicly backs gay marriage, too.
Here’s something you need to know about Martijn Wilder: it’s pronounced “Mar-tain“. His family is part-Dutch and he was born here. As an economics student he got into Antarctic history (he visited in 2009), finished a Cambridge master’s degree in international environmental law and switched to the climate area in the late ’90s. In 1999, with Cambridge friend James Cameron, he set up Baker and McKenzie’s climate practice, which advises companies, governments and international agencies on legal issues around climate change and carbon pricing.
He’s the chairperson of the government’s Low Carbon Australia initiative, which is merging with the Clean Energy Finance Corporation (he’s joined the CEFC board), so he helps dole out green loans and grants to companies. He chairs the NSW government’s Climate Change Council, although it’s less active under the Coalition. He lectures at Australian National University, is on the WWF board, and is involved in the Climate Institute. And don’t forget Gabon (the oil-rich African nation wanted a legal code to steer it towards sustainable development).
“I work pretty hard,” Wilder admitted. Carbon farmer Andrew Grant puts it differently: “He’s the world’s most manic multi-tasker.” Grant affectionately describes him as “the rock star of climate change … He’s the single most influential climate lawyer in the world” (Wilder says “I curl in my grave” at the rock star reference).
Wilder’s influence is particularly strong internationally, but he’s worked on Australian law — like the NSW GGAS scheme — and advised ministers (and retains their ear).
Industry analyst Rob Fowler says good management is key to Wilder’s success; he knows how to attract strong people to a team, is plugged into an influential Baker and McKenzie network, and loves a laugh. Wilder is generous with his time with The Power Index, and gets so excited about some topics that his words trip over each other (Grant describes him as “a big kid”). He’s not available for interview one week because he’s walking Tasmania’s Overland Track. He once helped place a melting polar bear sculpture made of ice at Sydney’s Town Hall to highlight global warming. Wilder is everywhere at once.
Despite working in a doom-and-gloom field, Wilder seems to mainly see opportunities and solutions, and is frustrated with those who don’t: “I’m quite an optimistic person — you’ve just got to keep pushing ahead.”
While many areas of law groan with centuries of precedent, climate law is relatively new. Wilder, who is 45, got into a greenfields area, moved to the top and stayed there. He has been involved in writing the law — like creating a new class of property right in carbon rights — not just enforcing it. He says he’s creative and entrepreneurial. Climate law has ups and downs: “It is a long-term game plan, nothing is going to happen fast.” His game plan does not involve a tilt at politics, but will he switch to full-time conservation advocacy? The Climate Institute’s John Connor successfully turned a legal background into lobbying.
Wilder’s view of climate change is classically neo-liberal, in a way Tony Abbott has not embraced. Wilder sees climate change as “the classic market failure”; voluntary action has failed because incumbent economic heavyweights don’t want to reduce environmental damage, so laws are required to force companies to reduce emissions. The twin arms of policy and law create an economic driver to reduce pollution — what Wilder calls “creating a market by statute”. Policymakers provide the top-down legal framework, then the private sector finds the cheapest response, bottom-up.
Some might argue a) climate change is the market failure that proves the undoing of the “endless growth” neo-liberal project, or b) this market failure is being fixed way too late. But critics of Wilder’s approach can always take his advice on how to fix a problem: get involved in politics and write the laws you think are needed. Don’t blame the lawyers.