In-House Counsel
![handle is hein.journals/naresoe2021 and id is 326 raw text is: Chapter X: IN-HOUSE COUNSEL
2021 Annual Report'
I. ESG DISCLOSURES - SEC RULEMAKING AND PRIVATE CLIMATE GOVERNANCE
A. Introduction
In recent years, U.S. corporations have been inundated with requests for
Environmental, Social, and Governance (ESG) information from a host of stakeholders,
including shareholders, institutional investors, investment fund managers and
environmental non-governmental organizations (NGOs). These requests arise from the
sustainability movement and stakeholder demands for corporate social responsibility to be
a basic tenant of corporate governance. Globally and in the U.S., there have been significant
increases in the number, net asset inflows, and the total value of assets under management
in sustainable investment funds.2 Currently, the primary focus of ESG information requests
relate to the risks presented by climate change. The urgency for ESG information has been
intensified by President Biden elevating climate change to a top priority of his
administration, resulting in the U.S. rejoining the Paris Agreement,3 and extensive
regulatory actions aimed at making a mid-course correction in the country's climate change
policy.4
B. Private Climate Governance
While the U.S. Securities and Exchange Commission (SEC) has an on-going
process to review climate change disclosures in reports filed by public companies, recent
changes in the regulations have been narrow adjustments to specific requirements and no
comprehensive analysis has been conducted since 2010.5 In accordance with the Biden
Administration's priorities, SEC Chair Gary Gensler has directed a staff review of
registrant disclosures, and a proposed rule is expected in early 2022. However, given the
length of the regulatory process, a final rule is unlikely before 2024. In the interim, a
number of private disclosure standards have been adopted by various stakeholders,6 and
1Part I of this report was authored by William J. Donohue, Esq., Adjunct Professor at
Temple University Fox School of Business, and formerly in-house environmental counsel
in the petroleum and electric utility industries. Part II was authored by Anna Kuperstein,
Esq., Director of Environmental Policy, Boardwalk Pipeline Partners, LP, Houston, Texas
and Hilary T. Jacobs, Esq., Beveridge & Diamond PC, Washington, D.C.
2See Hortense Bioy et al., Global iainabie F idFlw s: 03 2021 in Review,
MORNINGSTAR MANAGER RSCH., Nov. 2021, at 1 (Morningstar describes this fund
category as: The global sustainable fund universe encompasses open-end funds and
exchange-traded funds globally that, by prospectus, fact sheet, or other available resources,
claim to have a sustainability objective and/or use binding environmental, social, and
governance criteria for their investment selection.).
3Press Release, White House Briefing Room, Paris Climate Agreement (Jan. 20, 2021)
(President Biden's acceptance on behalf of the United States of America).
4See Climate R-Reg lalon hacker, COLUM. L. SCH. SABIN CTR. FOR CLIMATE CHANGE
(last visited Feb. 8, 2022).
5Commission Guidance Regarding Disclosure Related to Climate Change, 75 Fed. Reg.
6290 (Feb. 8, 2010) (to be codified at 17 C.F.R. pts. 211, 231, 241) (direct final rule)
[hereinafter 2010 SEC Guidance].
6TASK FORCE CLIMATE-RELATED FIN. DISCLOSURES, FINAL REPORT: RECOMMENDATIONS
OF THE TASK FORCE ON CLIMATE-RELATED DISCLOSURES 1 (June 2017); see also About
Us: WhatWe Do, CDP GLOB. (last visited Feb. 8, 2022) (formerly the Carbon Disclosure
X-1](ViewImageLocal?handle=hein.journals/naresoe2021&div=29&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
In-House Counsel
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most