Climate Change Disclosure

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There is no doubt that sentiment toward ESG initiatives has shifted – in the U.S. and elsewhere. For starters, the SEC recently voted to withdraw its court defense of its own climate change disclosure guidelines. The ESG pullback has also reached Europe, as, in February 2025, the European Commission proposed an omnibus package of measures to simplify and streamline the EU’s ESG reporting requirements, as discussed here. More recently, and as discussed below, the European Parliament earlier this month voted to delay key EU ESG reporting requirements for two years, to allow more time for EU politicians to negotiate further changes to the union’s sustainability reporting rules. An April 3, 2025, Reuters article discussing the European Parliament’s vote can be found here.Continue Reading European Parliament Votes to Delay EU Sustainability Reporting Requirements

On April 21, 2025, Paul Atkins, President Trump’s nominee, was officially sworn in as the 34th Chair of the Securities and Exchange Commission. Atkins, who previously served as an SEC Commissioner from 2002 to 2008 during the George W. Bush administration, brings extensive prior SEC experience to his new post. In many ways that are already in evidence at the SEC in the early days of the Trump administration, the new leadership is likely to result in many significant changes in direction at the agency.Continue Reading Paul Atkins Chair Sworn In as SEC Chair

The Trump Administration has already signaled its intent to take a far different approach with respect to ESG-related issues than the Biden administration. Among other things, the White House has issued orders ordering a dismantling of federal agency DEI initiatives, and the SEC has withdrawn its court defense of its recently issued Climate Change Disclosure guidelines. These actions suggest that other governmental authorities’ climate change-related initiatives – such as those of the EU and of the various U.S. states — could increase in importance, as the U.S. federal government changes its policy direction. However, the EU has recently indicated its intent to step back some of its initiatives. And the Trump Administration has now issued an executive order expressly targeting what it calls “state overreach” with respect to climate change policies.Continue Reading Executive Order Targets State Climate Change-Related Initiatives

Some of you may have heard: there was a Presidential election in the United States last Tuesday, as a result of which there will be a change in administration next January. This upcoming change almost certainly means a categorical shift in the regulatory environment in Washington, including in particular at the SEC. Many of the SEC’s regulatory initiatives under the Biden administration may be rolled back. In particular, the new administration likely will pull the plug on the SEC’s pending climate change disclosure guidelines. These likely developments at the federal level may mean that, as Cydney Posner noted in a November 7, 2024, post on the Cooley law firm’s PubCo blog (here), State level actions “may, in many ways, take on much larger significance.”

For that reason, it is worth taking a closer look at the ruling last week in the federal court lawsuit in which various business groups led by the U.S. Chamber of Commerce are challenging the California statutes requiring companies “doing business” in the state to make certain climate change-related disclosures. As discussed below, the Court has denied the plaintiffs’ pre-discovery motion for summary judgment on First Amendment grounds. The court’s interesting ruling may provide some indication of the future direction of the litigation, as well as on the likelihood that the California statutes will eventually compel companies to make the mandated disclosures. A copy of the Central District of California’s November 5, 2024, order can be found here.Continue Reading What Now for Climate Change Disclosure Requirements?

On March 6, 2023, a divided SEC, and based on a 3-2 vote, adopted its final climate change disclosure guidelines. The guidelines as adopted are significantly watered down from the draft guidelines originally proposed; for example, the final guidelines do not require  disclosure of so-called Scope 3 greenhouse gas emissions (GGE). As discussed below, the new guidelines will almost certainly face legal challenge. The SEC’s March 6, 2024, press release about the new rules can be found here. The actual rules themselves can be found here. An SEC fact sheet about the new rules can be found here.Continue Reading SEC Adopts Final Climate Change Disclosure Guidelines – What Next?

In recent months, the SEC has released a series of proposed rules relating to several different topics, including most significantly its March 2022 release of proposed rules regarding climate change and greenhouse gas emissions disclosure. These various proposed rules are still in the public comment period and it remains to be seen whether the various proposed rules will be adopted and if so in what form. Even assuming some forms of the proposed rules are adopted, the rules almost certainly will be subject to court challenge by business groups and other constituencies. As a result of the U.S. Supreme Court’s landmark decision in the last days of June in the carbon emissions rulemaking case, groups challenging the SEC’s rules have a potentially potent new tool to use to try to block the rules.
Continue Reading Will the “Major Questions Principle” Block the SEC’s Proposed Climate Change Disclosure Rules?

An Australian Federal Court class action lawsuit alleging that the Australian Federal Government failed to disclose to investors the climate change risks associated with the government’s sovereign bonds has survived in part an attempt by the government to have the action dismissed. In an October 8, 2021 Judgment (here), a Federal Court of Australia Judge “declined to strike-out” the applicant’s claim based on allegations of misleading or deceptive conduct, while agreeing with the government to “strike-out” others of the applicant’s claims, as discussed below. The court’s rulings in this case arguably represent something of a milestone in the development of climate change-related litigation.
Continue Reading Australian Bond Climate Change-Related Disclosure Class Action to Proceed

The importance of ESG issues for companies and their executives is nothing new, but in recent days ESG issues seem to have taken center stage. The surprising success of activist investor Engine No. 1 in electing climate change-focused candidates to the board of ExxonMobil and the order by the Dutch court requiring Royal Dutch Shell to reduce carbon dioxide emissions by 50% of 2019 levels by 2030 are just two of the recent examples of the ways in which ESG issues increasingly have come to predominate corporate agendas. As discussed below, challenges related to ESG issues seem likely to continue. Among other things, these developments present new risks for potential D&O liability exposures as well.
Continue Reading The Predominance of ESG-Related Issues and the Implications for Corporate Boards

John M. Orr

Though we are still early on in the Biden Administration’s tenure, it is already clear that ESG-related issues have emerged as a important point of focus and emphasis for the Administration. In the following guest post, John M. Orr, Directors & Officers Liability Product Leader for Willis Towers Watson,
takes a look at a number of the important implications of the Administration’s ESG focus. A version of this article previously appeared on the Willis Towers Watson website (here). I would like to thank John for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s article.
Continue Reading Guest Post: Changes in ESG-Related D&O Risk in a New US Presidential Administration

As I noted in a prior post, earlier this month I participated in a panel in a climate change liability event sponsored by Clyde & Co in collaboration with Willis Towers Watson as part of the Mayor of London’s Climate Action Week. In connection with the event, on July 11, 2019 the Clyde & Co law firm published an excellent, comprehensive paper on climate change developments and risks, entitled “Climate Change: Liability Risks for Businesses, Directors and Officers – The Coming Wave of Litigation” (here). This paper provides an overview of the challenges that businesses face as a result of climate change-related developments and of the potential areas of liability that may arise as a result of these developments.
Continue Reading “Increasingly Likely” Climate Change Liability Risks