Environmental, Social and Governance (ESG)
Interested in receiving content and communications from the ESG Interest Group?
Mission
The committee’s mission is to be a reliable platform for California legal practitioners seeking legal education and resources regarding the dynamic area of environmental, social, and governance (ESG) matters.
Upcoming Projects
The committee is working to develop programs, resources, and materials regarding ESG and accompanying changes in law and regulation. Our committee’s nonpartisan mission is best served by receiving input, contribution, and feedback from diverse thought leaders from various backgrounds and legal perspectives. The committee is pleased to announce that we will soon have the ability to track, report, and display on our webpage ESG-related anticipated, pending, and enacted California and applicable federal legislation. The committee will also soon be recording and releasing our “ESG in 5” video series, gathering ESG perspectives from legal practitioners from across California. The committee additionally anticipates scheduling and publishing webinars and digestible articles regarding ESG matters. The committee is quite pleased with the input and contributions of our members thus far, but continually seeks interested legal students, practitioners, and experts to contribute to the committee. If you are interested, please navigate to the link at the top of our webpage.
Watch Our YouTube Playlist
March 7, 2024 | Looking Beyond ESG Legislation – Toward Systems Change with Bruno Camargo
In this episode, Patrick Miller speaks with Bruno Camargo, Partner and Head of Latin America, ESG and Impact at Liance Legal. Their conversation covers Bruno’s impressive breadth of experience – ranging from anti-money laundering and corruption compliance to his holistic ESG advisory practice, from issues with carbon credits to the importance of integrating Indigenous knowledge, worldview and organizational models into corporate governance.
Guest: Bruno Camargo is qualified to practice law in Brazil and the European Union. Throughout nearly three decades of legal practice Bruno has been instrumental in integrating ethics and ESG principles into business strategies, enhancing stakeholder trust, and fostering long-term sustainability and regenerative practices through robust programs that enhance human dignity and create inclusive/equitable workplaces also as subject matter expert in antitrust, anti-bribery, anti-money laundering, human rights and related regulations, having participated in numerous high-profile remediation teams of corruption and cartel cases. Bruno is also a founder of Paková Katu (www.pakova.com.br), an entrepreneurial hands-on (ESG) environmental, social and regenerative project in the Brazilian Atlantic Forest, in partnership with The Nature Conservancy.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
March 6, 2024 | Developments in Mandatory Building Performance Standards with Nicole DeNamur
In this episode, Patrick Miller speaks with Nicole DeNamur about her innovative firm, Climate Aligned Law, where she combines over a decade of legal experience with deep knowledge of sustainable building processes. Their discussion covers rapidly emerging developments in mandatory building performance standards in cities and states across the US, how these new regulatory frameworks impact leasing and construction agreements, as well as some of the technical aspects of accounting for a building’s environmental impact throughout its lifecycle.
Guest: Nicole DeNamur is the founder and owner of Climate Aligned Law. She was also a member of the team of lawyers tasked with transposing the work of The Chancery Lane Project, to US markets and relevance. She demonstrated her leadership regarding climate-aligned contracts, through this pro bono work, crafting some of the first model clauses of this type, designed for US markets. Nicole transposed what is now known as “Willow’s Clause,” which works to manage the impacts of embodied carbon in construction. Nicole is also currently an Affiliate Instructor at the University of Washington, Department of Real Estate Studies, where she teaches the course she developed, Risk and Reward in Sustainable Development.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 23, 2024 | Model Contract Clauses, Responsible Sourcing and Due Diligence with Susan Maslow
In this episode, Patrick Miller speaks with Sue Maslow about her work on the ABA’s Model Contract Clause Project, tensions between more fluid due diligence approaches and strict liability regimes, California’s adoption of the Caremark standard of director liability and more.
Guest: Susan Maslow is an experienced business attorney with a focus on complex transactional corporate law. Sue is a Co-Founder and Partner of Antheil Maslow & MacMinn LLP. She concentrates her practice primarily in the documentation of Business Transactions, Corporate Governance, Private Finance, Service and Supply Contracts, and Non-Profit Operations. Committed to delivering precisely drafted documents, Sue believes getting parties with conflicting interests to agree in writing can be tremendously gratifying (financially and emotionally) for all stakeholders.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 23, 2024 | Legal Innovations in Corporate Accountability with Charity Ryerson
In this episode, Patrick Miller speaks with Charity Ryerson about her work supporting communities and workers impacted by labor and human rights violations throughout global value chains. Among the topics of discussion are: strategic litigation, federal agency enforcement actions, mandatory human rights due diligence developments in the EU, model contract clauses and more.
Guest: Charity Ryerson is an attorney, legal designer, activist and strategist with two decades of experience fighting corporate abuse around the globe. She is the Executive Director and Founder of Corporate Accountability Lab (CAL), where she leads a team of committed advocates who design, prototype and test new strategies to address corporate misconduct. Prior to founding CAL, Charity litigated complex international human rights cases under the Alien Tort Statute, Torture Victim Protection Act and state tort law.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 16, 2024 | Litigation Risk for human rights abuses with Prof Ramona Lampley
In this episode, Patrick Miller speaks with Professor Ramona Lampley about her academic research involving litigation risk for human rights abuses in the US. These are key risks for companies with international supply chains and require proper due diligence to address.
Guest: Professor Ramona Lampley is a Professor of Law at St Mary’s University. Her academic work focuses on business & human right issues, particularly litigation risk for human rights abuses.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 10, 2024 | Litigation Risk for Greenwashing Claims with Christina Tusan
In this episode, Patrick Miller speaks with Christina Tusan about her work in government and private practice bringing claims for false advertising. A key concern is false advertising related to ESG claims, otherwise known as greenwashing litigation.
Guest: Christina Tusan is a partner at HammondLaw, P.C. where she focuses on helping consumers bring claims related to false advertising, particularly greenwashing claims.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles that focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 10, 2024 | Using OLGMs to remedy human rights & environmental issues in supply chains with Prof Lisa LaPlante
In this episode, Patrick Miller speaks with Professor Lisa LaPlante about her academic research involving operational level grievance mechanisms. These are a key aspect of the business & human rights Pillar which requires providing stakeholders access to adequate remedy. Properly functioning OLGMs allow stakeholders to report human rights abuses when they occur – and allow for the issue to be remedied efficiently.
Guest: Professor Lisa LaPlante is a Professor of Law at New England Law. Her academic work focuses on business & human rights issues, particularly operational level grievance mechanisms.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles that focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 3, 2024 | Human Rights & Environmental Risk for Businesses with Pepijn van Haren
In this episode, Patrick Miller speaks with Pepijn van Haren about his work investigating companies’ potential exposure to business risk arising from human rights and/or environmental issues. This is particularly useful prior to a merger or purchase. It is also frequently required by project investors and other financial institutions.
Guest: Pepijn van Haren is a human rights & environmental investigation expert at Wallbrook, which recently became a part of Anthesis. They provide a broad suite of investigative and advisory services on ESG areas.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles which focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
January 3, 2024 | SEC enforcement of ESG reporting obligations with Howard Fischer
In this episode, Patrick Miller speaks with Howard Fischer about his work at the SEC litigating financial crimes arising from the 2008-09 Financial Crisis and how that informs his current work advising companies on their obligations to investors under the current regulatory framework, as well as the potential new rules which are currently under review at the SEC.
Guest: Howard Fischer is a partner at Moses & Singer LLP and a former Senior Trial Counsel with the Securities & Exchange Commission.
Host: Patrick Miller is the Founding Attorney at Impact Advocates APC, a law firm based in Los Angeles that focuses on commercial litigation & international arbitration, as well as ESG advisory services such as implementing responsible supply chain frameworks.
August 18, 2023 | ESG Webinar The Opportunity and the Obligation
Speaker: Pamela Cone, Founder and CEO Amity Advisory
Oh, the million-dollar question – what is a law firm’s obligation to disclose its impact on environmental, social, and corporate governance matters? On July 13, Pamela Cone, leading ESG consultant will shine a bright light on all things ESG.
Pamela is known for working around the globe to build and evolve strategic, transformative ESG practices, policies and programs that meet stakeholder expectations. With more than 3 decades of experience working in professional services firms in marketing, communications and business development roles, she brings all her industry knowledge and expertise to help clients evolve their ESG, social impact and sustainability programs from “transactional” to “transformational” – core to the business, consistent with purpose and collaborative in nature.
Pamela Cone collaborates with the leaders of professional services firms and network leadership around the globe to build and evolve strategic, transformative Environmental, Social and Governance practices, policies and programs that meet stakeholder expectations. With more than 3 decades of experience working in professional services firms in marketing, communications and business development roles, she brings all her industry knowledge and expertise to help clients evolve their ESG, social impact and sustainability programs from “transactional” to “transformational” – core to the business, consistent with purpose and collaborative in nature.
August 18, 2023 | Combatting Modern Slavery with Matt Friedman
Speakers: Matt Friedman and Patrick Miller
In this episode, Patrick Miller speaks with Matt Friedman about his experience helping companies discover and remediate instances of modern slavery in international supply chains. They discuss best practices and useful resources for multinationals implementing responsible supply chain programs.
Matt Friedman is the CEO of the MeKong Club, a non-profit helping multinationals eradicate modern slavery. He is an experienced expert in this space and provides valuable insight on these important issues.
August 18, 2023 | Implementing ESG best practices with Jane Obbagy
Speakers: Jane Obbagy and Patrick Miller
In this episode, Patrick Miller speaks with Jane Obbagy about her work helping companies to assess their performance on social impact and to implement best practices to ensure better ESG performance.
Jane Obbagy is an expert consultant on ESG assessment & implementation for businesses. She manages Obbagy Consulting.
August 18, 2023 | Evolving hard-law ESG obligations with Kabir Duggal
Speakers: Kabir Duggal and Patrick Miller
In this episode, Patrick Miller speaks with Kabir Duggal about the article they co-authored for the Harvard International Law Journal regarding the Evolution of Business & Human Rights Obligations in international law. They discuss how voluntary international regimes have evolved such that these international obligations are becoming mandatory through national legislation & regulation. They also discuss various issues involving ESG and international arbitration—and why companies engaged in international business prefer utilizing international arbitration to resolve commercial disputes. You can find their article at the Harvard International Law Journal Online.
Kabir Duggal is an expert on International law & arbitration—he regularly acts as an Arbitrator & Mediator for international commercial disputes. He is a Lecturer at Columbia & Fordham Law Schools—and an Attorney at Arnold & Porter.
July 3, 2023 | Responsible Supply Chains with Christy Dehus
Speakers: Christy Dehus and Patrick Miller
In this episode, Patrick Miller speaks with Christy Dehus about her experience helping technology companies implement responsible sourcing programs in Africa and Asia. They discuss the challenges and opportunities in implementing these programs and the legal regimes involved such as Dodd Frank and Uyghur Forced Labor Prevention Act.
Christy Dehus is an expert consultant in ESG & responsible supply chains and manages Christy Dehus Consulting.
July 3, 2023 | Introducing ESG-in-Law with Madison Stern
Speakers: Madison Stern and Patrick Miller
In this episode, Patrick Miller speaks with Madison Stern about why she helped form the ESG Section at California Lawyers Association and her hopes for the future of the Section.
Madison Stern is the co-chair of CLA’s ESG Section and Founding Attorney at ESG Justice Center.
June 21, 2023 | Advising California Benefit Corporations with Matthew Batista
Speakers: Matthew Batista and Patrick Miller
In this episode, Patrick Miller speaks with Matthew Batista about legal issues faced by public benefit companies in California, including reporting requirements and director responsibilities.’
Matthew Batista is the co-chair of CLA’s ESG Section and a transactional attorney at Klinedinst PC where he focuses on regulatory matters affecting California public benefit corporations and general transactional matters.
California Litigation
Lynch v. Spilman (1967) 67 Cal.2d 251, 261
This case established a broad definition of nonprofit charitable purposes with implications of SPCs.
Estate of Breeden (1989) 208 Cal.App.3d 981, 985
This case also established a broad definition of nonprofit charitable purposes with implications of SPCs.
https://law.justia.com/cases/california/court-of-appeal/3d/208/981.html
People of the State of California ex rel. Kamala D. Harris, Attorney
General, Plaintiff, v. ENSO PLASTICS, LLC; Aquamantra, Inc.; Balance Water Company LLC (2011)
California AG filed a greenwashing suit in against two bottled water companies and their plastic resin supplier, alleging that they made misleading claims by marketing plastic water bottles as 100% biodegradable and recyclable. The parties settled.
https://oag.ca.gov/system/files/attachments/press_releases/n2577_complaint.pdf
Paduano v. American Honda Motor Co. Inc, 169 Cal. App. 4th 233 (1996)
This was an individual action in state court whereby the plaintiff relied on the defendant’s advertisements about the vehicles fuel economy when purchasing the Honda Civil hybrid.
True v. Am. Honda Motor Co., 520 F Supp. 2d 1175, 1183 (C.D. Cal. 2007)
This was a federal class action where the plaintiff relied on the defendant’s advertisements about the vehicles fuel economy when purchasing the Honda Civil hybrid.
Crest v. Padilla, No. 20-STCV-37513 (2022)
This case challenged the constitutionality of AB 826 (see above), ultimately striking it down as unconstitutional.
Crest v. Padilla, No. 19-STCV-27561
This case challenging the constitutionality of AB 979 (see above), ultimately striking it down as unconstitutional
https://www.documentcloud.org/documents/22016185-crest-v-padilla-verdict-ca-may-2022
CALIFORNIA LEGISLATION DECLARED UNCONSTITUTIONAL
Re Females on Boards of Directors – SB 826
A bill that required public companies that hold their principal executive office in California, including publicly held domestic or foreign corporations, to have at least one female on its board of directors. The bill was signed into law but struck down as unconstitutional in Crest v. Padilla, No. 20-STCV-37513 (see below).
https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201720180SB826
Re Underrepresented Communities on Boards of Directors – AB 979
A bill that required any publicly held domestic or foreign corporation with its principal executive office in California to have a minimum of one director from an underrepresented community on its board of directors. The bill was signed into law but struck down as unconstitutional in Crest v. Padilla, No. 19-STCV-27561 (see below).
https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201920200AB979
CALIFORNIA PENDING LEGISLATION
Climate Corporation Accountability Act – SB 260
An act to add Section 38532 to the California Health & Safety Code, which would require all domestic (CA) and foreign (non-CA) entities with total annual revenues in excess of one billion dollars ($1,000,000,000) and who do business in California to annually and publically disclose their Scope 1, 2, and 3 greenhouse gas emissions. Introduced and passed in the California Senate. The first hearing in the California Assembly was held on August 3, 2022, was passed as amended in committee on August 11, 2022, read a second time, amendment, and order to an additional second reading on August 15, 2022, and was read a second time and ordered to a third reading on August 16, 2022. The third reading will be held on August 22, 2022.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB260
CALIFORNIA STATUTES & LEGISLATION
The California Transparency in Supply Chains Act
The California Transparency in Supply Chains Act (the “CTSCA”) was enacted in 2012 in an effort to address slavery and human trafficking directly or indirectly influenced by entities’ supply chains. Generally, the CTSCA requires that entities that (a) are retailers or manufactures; (b) do business in California; and (c) have gross, global receipts of at least $100,000,000 to provide certain disclosures on their website as to their efforts, if any, to mitigate any slavery or human trafficking impacts throughout their supply chains.
https://oag.ca.gov/sites/all/files/agweb/pdfs/cybersafety/sb_657_bill_ch556.pdf
https://oag.ca.gov/sb657/related-code
California Global Warming Solutions Act of 2006
Social Purpose and Benefit Corporation Enabling Acts
- The Corporate Flexibility Act of 2011
- The Corporate Flexibility Act of 2011 created two new forms of for-profit corporate entities in California, both created to bridge the legal gap between the traditional for-profit corporate purpose and an additional ESG purpose. This Act created both the (a) Flexible Purpose Corporation (later renamed the Social Purpose Corporation (“SPC”), see below) and the (b) Benefit Corporation (“BC”).
- Historically, there had been a clear dividing line between for-profit and non-profit corporations. Traditional for-profit corporations have been able to promote environmental or socially beneficial causes, but these activities, either by law or in practice, are subservient to the long-term economic interests of shareholders. Directors risk liability otherwise. In contrast, traditional non-profit corporations are required to act for the benefit of society, but they risk losing tax-exempt status if they fund their mission by engaging in profit-making activities. SPCs and BCs are hybrids that bridge this historical divide. They are each for-profit entities, but they offer protection from liability for officers and directors who pursue societal objectives at the expense of corporate profits.
Social Purpose Corporation (“SPC”)
- The act enabling SPCs
- An SPC is required to adopt and state in its Articles of Incorporation an additional corporate purpose, which can be: (a) any charitable purpose for which a non-profit entity is allowed to pursue and adopt, which is broadly defined but includes purposes like the relief of poverty, advancement of education or religion, promotion of health, etc. and/or (b) operating the SPC for the purposes of promoting the SPC’s beneficial activities on or minimizing adverse actions of the SPC activities on the SPC’s (i) employees, suppliers, customers, and creditors, (ii) the community and society, and/or (iii) the environment. In making its corporate decisions, the SPC’s management must weigh the interests of the company, the shareholders, and the enumerated additional purpose(s) in its Articles. The SPC must issue an annual report to the shareholders which must contain a section on management’s discussion and analysis (generally “MD&A” and in this context, the “Special Purpose MD&A”) as to the SPC’s additional special purpose, its progress, its actions taken, expected impacts, etc. The special purpose MD&A must also be made available to the public on the SPC’s website. There is no third-party standard required to assess the performance of the SPC special purpose.
Benefit Corporations (“BC”)
- The act enabling BC
- BCs are required to adopt and state in its Articles of Incorporation an additional corporate purpose, which must be that the BC shall create a general public benefit, meaning a material benefit upon both society and the environment. A BC may also designate a specific public benefit, which can be anything of a particular benefit to society or the environment. The BC must independently select a third-party standard that is used to assess its performance in terms of its general public benefit and any specific public benefit. The BC must also issue an annual report that includes a narrative as to process and rationale for selecting the third party standard, the ways the BC pursued their general and any specific public benefits, and any hindering circumstances in pursuit of achieving such general and any specific public benefits.
CLA Voluntary Eco-Pledge & Law Office Sustainability Policy
Voluntary Eco-pledge And Voluntary Law Office Sustainability Policy
The day-to-day practice of law has significant environmental impacts. The legal profession uses enormous amounts of paper, energy, water and other natural resources, and generates a vast stream of waste products. The consumption of natural resources and its associated waste stream has a substantial impact on climate change and environmental quality, and has a significant impact on the quality of life for present and future generations. Additionally, implicit in the concept of sustainability is the notion that using fewer resources such as paper and energy will lower the costs of legal services, thereby making these services more affordable and accessible to clients.
Email environmental@CAlawyers.org to participate.
The California Lawyers Association recognizes that environmental protection, climate change and related environmental and social issues are urgent problems that require action. The solution to these problems must include efforts by individuals, businesses and organizations – including the legal profession – to reduce their environmental impacts.
Environmental Disclosure Frameworks
Task Force on Climate Related Financial Disclosures (“TCFD”)
The Financial Stability Board (FSB) established the TCFD for the purposes of issuing standardized climate-related financial disclosures to provide better corporate information in support of informed capital allocation. The TCFD first issued its standards in 2017 and the standards center around four thematic disclosure areas: Metrics and Targets, Risk Management, Strategy, and Governance. The interrelated core disclosure areas also include eleven other disclosure recommendations. The TCFD standards are adopted in both the adopted EU sustainability focused disclosure requirements as well as the proposed counterpart requirement from the SEC in the US.
Task Force on Nature Related Financial Disclosures (“TNFD”)
The Task Force on Nature Related Financial was established in 2021, with funding or direct support from UN GC, the UN Environment Programme Finance Initiative, the UN Development Programme, and other major players in the global sustainability community. The standards being developed are set to be introduced in 2023. The TNFD disclosure standards are meant to directly build upon and supplement TCFD standards, being centered around the same four main thematic disclosure areas: Metrics and Targets, Risk Management, Strategy, and Governance. Where TNFD differs from TCFD is greater focus on ecosystems and environmental degradation, metrics without often more difficulty in quantification, as opposed to, for instance, greenhouse gas emissions.
International Financial Reporting Standards Foundation (“IFRS Foundation”)
The IFRS Foundation establishes two major standard setting boards under the IFRS Foundation umbrella: (a) the International Accounting Standards Board (IASB) and (b) the International Sustainability Standards Board (ISSB).The IASB issues international accounting standards that are not generally used in the US (where public companies are generally required to use GAAP accounting), but are used throughout the international community. The ISSB was agreed upon at and formed following the UN COP 26. ISSB’s mission is to consolidate various other sustainability and climate-change focused disclosure standards into a single, comprehensive international standard. The ISSB’s forthcoming standards are a consolidation of the Climate Disclosure Standards Board (CDSB) standards and recently of the Value Reporting Foundation (VRF). The VRF standards were themselves the consolidation of the Sustainability Accounting Standards Board (SASB) and the International Integrated Reporting Council (IIRC) standards. The ISSB standards are currently concluding their comment period on draft standards, separated by sustainability-focused disclosures and climate change-focused disclosures, and aim to issue the final standards by the end of 2022. Both the IASB and the ISSB are jointly working on an Integrated Reporting Framework, enabling financial and sustainability disclosures as a single, integrated reporting framework.
Global Reporting Initiative (“GRI”)
GRI was created in 1972 and as of 2022, is used by 72 percent of 250 of the world’s largest companies and 67 percent of the 100 largest firms in 52 countries. GRI refers to itself as “the world’s most widely used standards for sustainability reporting.” It publishes standards and formats for mandatory, recommended, and voluntary disclosures. Such standards are meant to highlight a company’s global impact and are based on materials, energy, water, biodiversity, emissions, pollution, waste, and supply chains.
https://listingcenter.nasdaq.com/assets/Board%20Diversity%20Disclosure%20Five%20Things.pdf
Carbon Disclosure Project (“CDP”)
CDP was created in 2000 and since 2022 is used by over 13,000 companies and about 1,100 cities, states, and regions, as well as approximately 600 investors with over $110 trillion in assets under management. CDP “supports thousands of companies, cities, states, and regions to measure and manage their risks and opportunities on climate change, water security, and deforestation.” It prioritizes on quantitative impact data and employs an independent approach to evaluate reports and assign letter grades. In 2021, over 270 companies received an A rating for climate change, forests, or water security.
Greenhouse Gas Protocol (“GHG Protocol”)
The Greenhouse Gas Protocol (GHGP), a joint initiative of World Resources Institute (WRI) and the World Business Council for Sustainable Development (WBCSD), establishes comprehensive global standardized frameworks to measure and manage greenhouse gas emissions from private and public sector operations, value chains and mitigation actions. GHG Protocol supplies the world’s most widely used greenhouse gas accounting standards. The Corporate Accounting and Reporting Standard provides the accounting platform for virtually every corporate GHG reporting program in the world.
Other Practitioner Resources
A Delaware Court of Chancery Opinion on Directors’ Fiduciary Duties and ESG
A recent Delaware case, Simeone v Walt Disney Co. (Del. Ch. June 27, 2023, No. 2022-1120-LWW) 2023 Del Ch Lexis 154, provides helpful guidance for boards of directors in navigating environmental, social, and governance (ESG) controversies. The court found that the Disney board’s decision to publicly oppose Florida’s so-called “Don’t Say Gay” law was a legitimate business decision.
https://calawyers.org/california-lawyers-association/a-delaware-court-of-chancery-opinion-on-directors-fiduciary-duties-and-esg/United Nations Global Compact (“UN GC”)
- The UN GC describes its organization as “the world’s largest corporate sustainability initiative.” UNGC sets forth its “Ten Principles” of corporate sustainability, focusing broadly on the areas (a) Human Rights; (b) Labor; (c) Environment; and (d) Anti-corruption (https://www.unglobalcompact.org/what-is-gc/mission/principles).
- The UN GC also promulgates the “UN Sustainable Development Goals (SDGs).” The SDGs were adopted by the 193 Member States of the UN in 2015 as part of the broader “Agenda 2030.” The 17 adopted SDGs help define a path forward for global sustainable development and corporate governance.
UN Principles for Responsible Investment (“UN PRI”)
The UN PRI is a partnership of the UN GC and the UN Environment Programme Finance Initiative. UN PRI sets forth six principles of responsible investment, in which UN PRI aims to help the international investment community incorporate ESG factors in investment decisions. Signatories to the UN PRI commit to consider the following six principles in their investment strategy and decisions: (1) We will incorporate ESG issues into investment analysis and decision-making processes; (2) We will be active owners and incorporate ESG issues into our ownership policies and practices; (3) We will seek appropriate disclosure on ESG issues by the entities in which we invest; (4) We will promote acceptance and implementation of the Principles within the investment industry; (5) We will work together to enhance our effectiveness in implementing the Principles; and (6) We will each report on our activities and progress towards implementing the Principles.
https://www.unpri.org/about-us/what-are-the-principles-for-responsible-investment
Nasdaq Board Diversity Disclosure
In August 2021, the SEC approved Nasdaq listing rules implementing new board diversity disclosure requirements that will apply to most Nasdaq-listed companies. Subject to certain exceptions, these Nasdaq Board Diversity Rules will generally require Nasdaq-listed companies to: (1) have, or publicly disclose why they do not have, at least two diverse directors (including at least one self-identified female director and at least one director who self-identifies as an “underrepresented minority” or LGBTQ+); and (2) publicly disclose board diversity statistics using a standardized format on an annual basis. As of August 7, 2023, listed companies will need to have, or explain why they don’t have, at least one (and by later specified dates, two) diverse directors. Certain relief is provided for Smaller Reporting Companies and Foreign Issuers, as well as companies with five or fewer directors.
https://listingcenter.nasdaq.com/assets/Board%20Diversity%20Disclosure%20Five%20Things.pdf
B-Lab & The B-Corp Certification
B-Lab is a non-profit entity that administers one of the most well-known, global ESG related certifications for companies. Companies that qualify and are approved by B-Lab obtain the B-Corp Certification and are known as B-Corps. In a terminology sense, B Corps are often mischaracterized or synonymized with Benefit Corporations, which are not the same thing. However, the B Corp Certification does require slightly differing requirements across jurisdictions. In California, this means that to obtain a B-Corp Certification, a California corporate entity must become a Benefit Corporation or a Social Purpose Corporation, though Benefit Corporation is the preferred choice to achieve B-Corp status. SPCs, LLCs, and LLPs may also obtain the B-Corp Certification by adding specific governance language in their governing documents.
The Chancery Lane Project (“TCLP”)
TCLP is a collaborative effort of legal and sustainability industry experts that develop contract clauses that are sustainability aligned, including alignment with net zero targets, with the Paris Climate Accord, and with other international agreements. Climate clauses range in their context and application, but include the following areas: real property, corporate governance, commercial, capital markets, insurance, supply chain, etc. US law translations for many of the most used clauses are available as well.
Dow Jones Sustainability Indices (“DJSI”)
The Dow Jones Sustainability Indices (DJSI) are float-adjusted market capitalization weighted indices that measure the performance of companies selected with ESG (Environmental, Social, Governance & Economic) criteria using a best-in-class approach.
https://www.spglobal.com/spdji/en/indices/esg/dow-jones-sustainability-world-index/#overview
Intergovernmental Panel on Climate Change (“IPCC”)
The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science related to climate change. The IPCC was set up in 1988 by the World Meteorological Organization (WMO) and United Nations Environment Program (UNEP) to provide policymakers with regular assessments of the scientific basis of climate change, its impacts and future risks, and options for adaptation and mitigation. IPCC assessments are written by hundreds of leading scientists who volunteer their time and expertise as Coordinating Lead Authors and Lead Authors of the reports. IPCC reports undergo multiple rounds of drafting and review to ensure they are comprehensive and objective and produced in an open and transparent way.
International Organization for Standardization (“ISO”) – 14000, 26000, & 37101
ISO is a worldwide federation of national standards bodies (ISO member bodies). The work of preparing International Standards is normally carried out through ISO technical committees. For companies and organizations of any type that require practical tools to manage their environmental responsibilities, there’s the ISO 14000 family. ISO 26000 emphasizes the importance of results and improvements in performance on social responsibility but is not intended to provide a basis for legal actions, complaints, defences or other claims in any international, domestic or other proceeding, nor is it intended to be cited as evidence of the evolution of customary international law. ISO 37101 establishes requirements for a management system for sustainable development in communities, including cities, using a holistic approach, with a view to ensuring consistency with the sustainable development policy of communities.
Certifications
Entity-based Certifications
- Gold Standard Foundation Certification
- This certification assesses projects that aim to reduce greenhouse gas emissions while promoting sustainable development and benefiting local communities. https://www.goldstandard.org/
- Green Globe Certification
- This certification assesses a company’s sustainability practices, including energy and water efficiency, waste management, and social responsibility. https://greenglobe.com/
- Responsible Jewellery Council (RJC) Certification
- This certification ensures responsible ethical, social, and environmental practices in the jewelry supply chain. It addresses key issues like human rights, labor rights, environmental impact, and product disclosure. https://www.responsiblejewellery.com/
- SA8000 Social Accountability International Certification
- This certification sets social standards for decent working conditions, including fair wages, working hours, and the right to join trade unions. It also covers child labor, forced labor, and discrimination. https://sa-intl.org/
- Social Accountability Certification International (SACI)
- This certification focuses on social accountability and responsible business practices, including labor and human rights, workplace health and safety, and environmental performance. http://www.saci-cert.org/
- Socially Responsible Business Certification (SRB)
- This certification evaluates businesses’ social responsibility performance and encourages continuous improvement. It covers areas such as corporate governance, community involvement, and environmental impact. https://www.srbcertified.com/
- Women’s Business Enterprise National Council (WBENC)
- This certification validates that a business is at least 51% owned, controlled, operated, and managed by a woman or women. This certification is widely recognized and can help businesses gain access to contracts with corporations and government entities that have supplier diversity initiatives. https://www.wbenc.org/
Product-based Certifications
- Cradle to Cradle Certification
- This certification assesses products and materials based on their environmental and social impact throughout their entire lifecycle, from production to disposal. https://www.c2ccertified.org/
- Environmental Product Declaration (EPD) Certification
- This certification provides transparent and verified information about the environmental impact of a product. https://www.environdec.com/
- Fairtrade (USA and International)
- This certification ensures that products are produced under fair and ethical working conditions, and that farmers receive a fair price for their products. https://www.fairtrade.net/
- Green Seal Certification
- This certification ensures that products and services meet rigorous environmental standards, including performance, health, and sustainability criteria. https://www.greenseal.org/
- Made Safe
- This certification ensures that products are free from harmful chemicals and ingredients. https://www.madesafe.org/
- Non-GMO Project Verified
- This certification ensures that products are free from genetically modified organisms (GMOs) and helps to promote transparency and sustainability in agriculture. https://www.nongmoproject.org/
- Upcycled Food Association
- This certification verifies food products made from upcycled ingredients, which are byproducts or leftovers from food manufacturing or processing. It promotes sustainability and waste reduction in the food industry. https://www.upcycledfood.org/
- Vegan Certified
- This certification verifies that products do not contain any animal-derived ingredients and are not tested on animals. It promotes ethical and sustainable consumer choices. https://www.vegansociety.com/
- WaterSense
- This certification promotes water-efficient products and practices that conserve water resources and reduce water and energy bills. It covers various products, from toilets to faucets to irrigation systems. https://www.epa.gov/watersense
- USDA Organic
- This certification ensures organic agricultural practices that minimize environmental impact and avoid the use of synthetic fertilizers and pesticides. It also covers animal welfare and food processing. https://www.usda.gov/topics/organic
Built Environment-based Certifications
- Carbon Footprint Standard Certification
- This certification measures a company’s greenhouse gas emissions and provides guidance on how to reduce them. https://www.carbontrust.com/what-we-do/certification-and-standards/carbon-footprinting
- Carbon Trust Standard Certification
- This certification recognizes companies that have taken steps to reduce their carbon emissions, improve energy efficiency, and minimize environmental impact. https://www.carbontrust.com/what-we-do/certification-and-standards/carbon-trust-standard
- Leadership in Energy and Environmental Design (LEED)
- This green building certification program recognizes best-in-class building strategies and practices. Developed by the U.S. Green Building Council (USGBC), LEED promotes sustainable building and development practices through a rating system that measures a building’s environmental impact and performance. Buildings that achieve LEED certification are recognized for their commitment to sustainability, energy efficiency, and the environment. There are several different types of LEED certifications that a building can achieve, each with its own set of requirements and criteria. https://www.usgbc.org/leed
- WELL
- This certification promotes healthy indoor environments that enhance human health and well-being. It covers air quality, water quality, lighting, acoustics, and other aspects of building design and operation. https://www.wellcertified.com/
Environmental-based Certifications
- Climate, Community and Biodiversity (CCB) Standards Certification
- This certification assesses projects that aim to mitigate climate change while promoting social and environmental benefits for communities and biodiversity. https://www.vcsprojectdatabase.org/ccb
- Forest Stewardship Council Certification
- This certification ensures that forest products are produced in an environmentally responsible, socially beneficial, and economically viable manner. https://fsc.org/
- FSC Controlled Wood Certification
- This certification ensures that controlled wood products are not harvested from controversial sources, such as illegally harvested forests, forests where human rights are violated, or forests where high conservation values are threatened. It allows companies to demonstrate that their controlled wood products meet certain environmental and social standards. https://fsc.org/en/certification/forest-management-certification/controlled-wood
- Marine Stewardship Council (MSC) Certification
- This certification ensures that seafood products are sustainably caught or farmed and helps to protect ocean ecosystems. https://www.msc.org/
- Rainforest Alliance Certification
- This certification ensures that products are produced in a sustainable manner that protects ecosystems, improves livelihoods, and promotes social and environmental responsibility. https://www.rainforest-alliance.org/
- Rainforest Alliance Sustainable Agriculture Certification
- This certification ensures that agricultural products are produced in a sustainable manner that protects ecosystems, improves livelihoods, and promotes social and environmental responsibility. https://www.rainforest-alliance.org/certification
- Sustainable Agriculture Network (SAN) Certification
- This certification ensures sustainable practices in agriculture, including biodiversity conservation, responsible use of agrochemicals, and fair labor practices. It covers coffee, cocoa, bananas, and other crops. https://www.san.ag/
- Sustainable Forestry Initiative
- This certification promotes responsible forest management and conservation. It covers key aspects of forestry, including biodiversity, water quality, and climate change. https://www.sfiprogram.org/
Compliance Resources/Templates
- CLA ESG COMMITTEE GUIDE & TEMPLATE: A CALIFORNIA BENEFIT CORPORATION’S ANNUAL BENEFIT REPORT (download Word doc | web version)
ARTICLES
ESG Generally
- Kell, The Remarkable Rise of ESG (Forbes, July 2018)
- Bergman, Deckelbaum, and Karp, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Introduction to ESG (August 1, 2020
- Sullivan, Silverstein, and Arthur, Deloitte & Touche LLP (August 10, 2020), ESG and Corporate Purpose in a Disrupted World
- State Street Global Advisors Insights, Environmental, Social & Governance (ESG)
- BlackRock, Larry Fink’s 2022 Letter to CEOs
- Litigation Risks Posed by “Greenwashing” Claims for ESG Funds (April 25, 2022)
- Harvard Law School Forum on Corporate Governance, Turning Down the Heat on the ESG Debate: Separating Material Risk Disclosures from Salient Political Issues (September 1, 2022)
- ESG, Stakeholder Governance, and the Duty of the Corporation
- “Pay Versus Performance” Rule Increase Disclosure Obligations for Public Firms
- The Crest Opinions: Impeding Legislative Efforts to Diversify Corporate Boards By Rachel Naor
Environment Matters
- PRI, Climate Change (2022)
- Tory’s, ESG and Climate Change (2022)
- U. S. Chamber of Commerce, How Environmental, Social, and Governance Policies Can Solve Climate Change (June, 2021)
- Bailey and Clarke (National Association of Corporate Directors), Climate Change Is an Enterprise Risk Multiplier (September 9, 2020)
Social Matters
- J. P. Morgan Chase & Co., 2021 Letter to Shareholders, Corporate Responsibility
- KPMG, How the “S” in ESG is Changing the Way We Do Business (2022)
- Lexis-Nexis, How ESG and Social Movements Are Affecting Corporate Governance (October 27, 2021)
- Silk, Niles, and Lu, Wachtell, Lipton, Rosen & Katz, The Other “S” in ESG: Building a Sustainable and Resilient Supply Chain (August 14, 2020)
Governance Matters
- Business Roundtable, Statement on the Purpose of a Corporation (August 19, 2019)
- Business Roundtable, One Year Later: Purpose of a Corporation (August 19, 2020)
- Lipton, Wachtell, Lipton, Rosen & Katz, Stakeholder Governance—Some Legal Points (September 20, 2019)
- Atkins, King, and Gerber, Skadden, Arps, Slate, Meagher & Flom LLP, Stockholders Versus Stakeholders—Cutting the Gordian Knot (August 24, 2020)
- World Economic Forum, Integrated Corporate Governance: A Practical Guide to Stakeholder Capitalism for Boards of Directors (June 2020)
- Aspen Institute, The Next Move: 10 Ways to Bring Stakeholder Capitalism into Practice (August 24, 2020)
- Weakley, With COVID-19 and the Nationwide Protests, the Time Is Ripe for Structural Change in American Business (CLA Business Law Section, Business Law News, Issue 3, 2020)
- Holland & Knight SECond Opinions Blog, SEC, Nasdaq Square Off Against Challengers to Nasdaq’s Board Diversity Rule (September 1, 2022)
- Anthropic Long-Term Benefit Trust (October 2023)
ESG in 5
In progress.