I recently co-authored an article for Corporate Counsel with Stephanie Bignon, assistant general counsel at Delta Air Lines, highlighting key environmental, social and governance (ESG) disclosure developments. “Public companies are facing a rapidly changing regulatory and investor landscape with respect to climate and other environmental, social and governance (ESG) disclosures,” the authors observed.
One area of particular regulatory focus from the Securities Exchange Commission (SEC) is climate change, as several new initiatives aim to revamp the existing disclosure framework in this area, including:
- Indications from SEC Chairman Gary Gensler that new climate change disclosure rules will be proposed in late 2021 or early 2022.
- Significantly enhanced focus of the SEC’s Division of Corporation Finance on climate-related disclosure in public company filings, including a sample SEC Staff comment letter sent to at least dozens of companies questioning whether consideration had been given to including climate-related disclosures in SEC filings.
- SEC Division of Enforcement announcement in early 2021 that it is creating a Climate and ESG Task Force, and signaling that enforcement actions in the climate change area under existing SEC rules may be forthcoming.
With this heightened focus, we concluded the article with five practical takeaways for companies:
- Right People in the Room: Leverage expertise of counsel whose perspectives on ESG disclosures are critical to ensuring risks related to ESG reporting are managed and mitigated appropriately.
- Thoughtful Goal-Setting Process: Thoroughly vet any ESG goals or key performance indicators internally prior to announcement.
- Data Accuracy: Assess the rigor of data used to report progress against ESG goals, including designating one or more team members to evaluate whether ESG data is sufficiently robust and to build a feedback loop.
- Disclosure Consistency: Confirm consistency of information across the company’s ESG disclosures, whether within or outside of SEC filings.
- Robust Controls and Oversight: Ensure ESG disclosures are subject to a robust control environment and oversight process at both the management and board members.
The full article, “Shifting Sands: ESG Disclosure Considerations Impacting Public Companies,” was published by Corporate Counsel on November 4 and is available online.