The possibility of antitrust enforcement has induced some anxiety among the sustainability community. Sustainability and climate pacts often require companies to work with one another in a limited capacity – potentially pushing the envelope of antitrust laws. Lawmakers in the EU and UK issued guidance on applying antitrust rules to the climate/sustainability context, more clearly identifying acceptable boundaries of cooperation.
The US has not seen similar guidance and some state officials have threatened antitrust enforcement based on sustainability initiatives. Linklaters recently conducted a survey of over 500 sustainability professionals in the UK, US, France, Germany, and the Netherlands to gauge the temperature of how professionals feel about potential antitrust enforcement. The results show threats of antitrust enforcement have not deterred companies in the US from pursuing sustainability initiatives even absent legal clarity:
“In the US, there is no guidance from authorities in place. There have been highly publicised federal and state inquiries into ESG initiatives, mainly from Republican officials in the financial services sector. These have not so far translated into concrete antitrust enforcement and do not appear to be significantly chilling the appetite for sustainable collaboration with US based respondents – poll results being broadly in line with those elsewhere.”
While the anti-ESG movement may not be having a huge impact on sustainability collaborations in the US, guidance in other jurisdictions has made companies feel more confident according to the Linklaters survey: 80% of EU respondents and 78% of UK respondents reported that they would move forward with projects they previously thought would be too risky prior to the new guidance. Anti-ESG may not be chilling US companies, but clear guidance appears to be accelerating initiatives in the EU and UK.
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