Like many things in ESG, antitrust risk is rapidly evolving. Last week at our ESG Litigation Landscape 2025 webcast, we dove into what’s going on with antitrust enforcement. While novel theories are proceeding against financial services firms, some signs should also concern operating companies. Florida’s investigation into CDP and SBTi targets carbon reduction and reporting platforms that are used beyond financial services. Additionally, a recent FTC antitrust investigation closed by securing promises from auto manufacturers that they would not collaborate in the Clean Truck Partnership. A recent Paul Weiss memo discusses the conclusion of the investigation, stating:
“In letters to the FTC, the manufacturers stated that none of them has attempted or will attempt to enforce the Clean Truck Partnership; the agreement was rendered unenforceable by the CRA resolution; there is no obligation of continued adherence to the agreement; and each manufacturer will act independently in selling heavy trucks, disregarding the agreement’s restrictive terms.”
The Clean Truck Partnership came about through the California Air Resources Board (CARB). Previously, CARB’s EPA emissions waiver allowed California to set more stringent vehicle emissions standards than the rest of the country. That waiver was revoked this summer. Once the regulatory basis for the Clean Truck Partnership was removed, the FTC argued that any voluntary participation in the program would run afoul of antitrust law.
This raises several red flags for sustainability, particularly for participating in industry initiatives. Anti-ESG takes the position that any coordination between companies to achieve sustainability goals can amount to an antitrust violation. We’ll have to wait to see if these theories pan out in court, but even an unsuccessful investigation or lawsuit can be burdensome. In the meantime, companies should closely monitor their participation in sustainability organizations and keep up with the evolving threat of antitrust enforcement.
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