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An educational service that provides practical guidance on legal issues involving public and private mergers & acquisitions, joint ventures, private equity – and much more.

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The “one stop” resource for information about responsible executive compensation practices & disclosure.

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PracticalESG

PracticalESG.com

Keeping you in-the-know on environmental, social and governance developments

Comments on SEC’s climate disclosure proposal number well over 6,000, although the majority are form letters or comments from concerned citizens. There are notices of ten meetings with SEC officials on the proposal as well. Several of the substantive written comment letters are from industry groups/trade associations and a group of 21 states. These letters point out the length and complexity of the proposal and request that the comment period be extended accordingly.

Our view: The Staff and Commission are in a difficult position: meeting Chair Gensler’s goal of issuing a final release in 2022 means that time is of the essence. Yet issuing a thoroughly considered, vetted and developed rule of this complexity requires affected parties have time themselves to adequately evaluate the proposal and respond to the questions posed in the proposal. Adding to that is the SEC’s concern about reducing risk of litigation that could vacate the rule or further delay its implementation. The original deadline for submitting comments is May 20 – I expect we will know in a couple weeks whether that will be extended, and by how much. For more information on the proposal, members can listen to our webcast Parsing the SEC’s New Climate Disclosure Proposal.

Texas-sized target. Bloomberg reported that

[Texas] State Comptroller Glenn Hegar is demanding that more than 140 financial firms disclose their climate policies – and whether they restrict or prohibit doing business with energy companies. The firms include private equity giants such Blackstone Inc. and Apollo Global Management Inc. and lesser-known players like Angel Oak Capital Advisors.

This is in response to a law passed last year – Texas Government Code Chapter 809 – requiring the Comptroller to prepare and maintain a list of financial companies that “boycott energy companies”.

Our view: I posted the text of the original letters previously and, while I haven’t seen the new tranche, I expect they differ little – if at all – from the originals. Given the legislative mandate of Chapter 809, Texas will continue to pursue screening financial service firms for state contracting opportunities. The list of those who can pass muster will probably be small. Other states have begun taking anti-ESG stances: Utah and West Virginia are pushing back against ESG ratings and as this note from Morrison Foerster says – “Arizona Attorney General Mark Brnovich announc[ed] plans to launch an antitrust investigation into money managers, lenders, and other firms that have taken steps to identify and reduce the financial risks of climate change.”

ISSB announced a new working group of national regulatory authorities “to align, as much as possible, requirements at a jurisdictional and international level.”

The working group will discuss compatibility of those initiatives to establish how the global baseline, fully responding to the needs of global market participants, can contribute to optimising reporting efficiency for companies in those jurisdictions and how those jurisdictions can build upon the global baseline according to their needs.

Members of the working group are the Chinese Ministry of Finance, the European Commission, the European Financial Reporting Advisory Group, the Japanese Financial Services Authority, the Sustainability Standards Board of Japan Preparation Committee, the United Kingdom Financial Conduct Authority and the US Securities and Exchange Commission.

Our view: As neither the ISSB nor its parent organization IFRS have direct regulatory authority, their standards must be adopted by individual countries (“jurisdictions”) for them to be legally mandated and enforceable. The US notably has not wholly adopted (or “converged” in the proper parlance) IFRS standards due to differences in legal and accounting mandates. US participation in this working group is solely of an advisory and monitoring nature. It is worth again pointing out that the US’ participation in this working group is not tantamount – nor an obligation – to adopting ISSB standards. Convergence of an IFRS/ISSB standard in the US would require a lengthy due diligence and public comment period by the Financial Accounting Standards Board (FASB) which would not begin until after the ISSB/IFRS standard itself is finalized.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for more than 35 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting at the height of regulatory development, working across a range of disciplines. He was one of the firm’s leading environmental compliance and management… View Profile