September 20-26, 2021 marks Climate Week NYC, when leaders from business, government and civil society converge on the Big Apple to focus on accelerating climate action around the United Nations General Assembly meetings taking place in the city this week.
In remarks before the General Assembly, President Biden kicked off the week with an urgent call for global collective action to address the climate crisis, and a promise from the United States to double climate aid to developing nations, including for adaptation efforts.
Policymakers in the United States have been hard at work making up for lost time since the country rejoined the Paris Agreement, with many signs of increased convergences in approach between the United States, United Kingdom, and European Union (see here and here).
Earlier this summer, the U.S. House of Representatives narrowly passed an ESG disclosure bill – H.R. 1187, the Corporate Governance Improvement and Investor Protection Act – which would direct the Securities and Exchange Commission (“SEC”) to issue rules within two years requiring every public company to disclose climate-specific metrics in financial statements (see here).
In May 2021, the White House issued a sweeping Executive Order setting out a comprehensive approach to measuring and mitigating climate-related financial risks to federal government programs, assets, and liabilities (see here).
This followed closely on the heels of the April Leader’s Summit on Climate, which brought together the 17 countries responsible for approximately 80 percent of global emissions and GDP as well as heads of countries that are demonstrating strong climate leadership to discuss the urgency and the economic benefits of stronger climate action, and to galvanize efforts to tackle the crisis (see here).
Not to be outdone by the federal government, state governments have called on the SEC to require U.S. companies to provide detailed and accurate information about the financial risk they face from climate change. And in June 2021, Maine became the first U.S. state to pass legislation committing to fossil fuel divestment, directing state officials not to invest in any company in the oil, gas, or coal industries, with some short-term exceptions, and to divest any existing fossil fuel holdings “in accordance with sound investment criteria and consistent with fiduciary obligations” (see here).
The SEC has heeded the call for increased attention to climate and ESG issues with gusto, unveiling a host of new rule-making and enforcement initiatives that could potentially result in an increased number of enforcement actions and related lawsuits filed by private plaintiffs in this area (see here). In addition to its ongoing rulemaking process for climate change disclosures, the SEC is also paying attention to other ESG issues including board diversity, the shareholder proposal process, proxy voting, political spending disclosure, and further guidance on human capital disclosure (see here).
SEC Chairman Gary Gensler, along with the other Commissioners, has issued a flurry of public remarks on climate and ESG issues, including details of the SEC’s proposed approach to climate disclosures (see here, here, here, and here) and a focus on investigating claims made in relation to sustainable investing and “green” fund labels (see here).
And finally, increasing numbers of “greenwashing” claims are being filed in the United States in relation to allegedly misleading environmental and sustainability claims, in administrative forums (such as the Federal Trade Commission), and state and federal courts (see here).
With the U.S. slowly catching up to its counterparts across the Atlantic, corporates will increasingly be pressed to demonstrate best efforts on climate and ESG issues.