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

Previously, we wrote that the SEC was considering a proposal by the New York Stock Exchange (NYSE) to adopt a new listing standard for Natural Asset Companies (“NAC”). The comment period was extended once and on December 21, 2023, the Commission announced it “is instituting proceedings to allow for additional analysis of, and input from commenters.”

The notice states that a determination has not been made, but “the Commission is providing notice of the grounds for disapproval under consideration.” General concerns were expressed about whether the proposal is “consistent with the Exchange Act and the rules and regulations issued thereunder”, with a request for comments specifically on the following points:

  1. the use of the Reporting Framework and its relationship to the UN SEEA EA model, British Standard recommendations, and other sources referenced for the underlying EPR data;
  2. the relationship between NYSE and IEG in general, including but not limited to the responsibilities of each under the proposal; how modifications of the Reporting Framework would be addressed; issues regarding independence, oversight, and potential conflicts of interest as between the entities and as among the audit committee or any auditors, experts, or advisory entities under the proposal; and the availability of books and records;
  3. the licensing arrangement for NACs as proposed and the sufficiency of the proposal regarding such licensing or other legal arrangements that a NAC would be permitted to enter into;
  4. the impact of the proposal on intermarket competition, including the exclusive agreement between IEG and NYSE;
  5. whether the proposed additional listing requirements for NACs and their implementation and application, including use of terminology, applicable thresholds, use of funds, and substantive obligations, are described with sufficient detail and clarity so as to provide investors with the information necessary to understand the relationship between such additional NAC requirements and the NAC’s GAAP financials;
  6. the proposed use of the financial statements and metrics in the EPR as compared to a NAC’s GAAP financial statements;
  7. as related to the Commission’s non-GAAP rules, the proposed use of GAAP terms and concepts in connection with the Reporting Framework, EPR, the Technical EP Study, and other related NAC materials, and the extent, if any, to which the relationship between a NAC’s GAAP financial statements and reporting requirements and the EPR and related materials could potentially result in overlap or double counting, confusion, or lack of clarity, as well as the application of the materiality standard;
  8. the suitability, clarity, and level of guidance of criteria for the Reporting Framework and other NAC materials, and implementation of the same, as well as the other requirements applicable to NACs, for audit purposes and attestation, including the scope of any attestation engagement and the roles of the relevant parties; and,
  9. the ability of a NAC to list on the Exchange pursuant to either an initial public offering or a direct listing.

Questions 2, 5, 6, 7 and 8 seem most interesting. Comments are due to the SEC by January 18, 2024.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 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 with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile