The US corporate world is registering a growing trend of heightened transparency concerning Environment Social Governance (ESG – also referred to as “corporate sustainability”) practices. Investors, consumers, and regulators are all nowadays more sensitive to what companies do in terms of a) consumption of resources or reduction of waste – environment practices; b) human rights, workers’ safety, inclusion, and diversity – social practices; c) business ethics – governance practices.
While companies in the EU and China are required to report their ESG efforts, in the U.S. an increasing number of companies are voluntarily disclosing ESG information to attract investors, appease the media, and preemptively avoid enforcement actions from federal agencies, which are expected to grow significantly in the near future, following the recent creation by the SEC of the Climate and ESG Enforcement Task Force. However, since there is not a uniform standard detailing what are the ESG disclosures to make available to the public, US companies should be extremely careful on what kind of data is released, as this information then becomes potential litigation material available to regulators and competitors. Therefore, US companies should engage their counsels and corporate executives to work together in each step taken to improve ESG practices to comply with an evolving regulatory framework.
More specifically, considering the recent SEC ESG risk alert outlining priorities, potential deficiencies, a corporate attorney well versed in ESG issues are needed and very helpful in evaluating the relevance of a potential ESG issue, liaising proactively with all the stakeholders, reviewing drafts of ESG public statements, and keeping the executives of the company updated concerning new ESG requirements to meet.
Additional financial considerations are pushing US companies to achieve ESG goals. For instance, a growing number of lenders are offering credit facilities under better terms to borrowers hitting ESG targets anticipating an expected long-term business relationship that will eventually benefit the lender.
Real estate developers are also subject to heightened scrutiny and are increasingly incorporating ESG practices into their plans, methods, and procedures. A “green building” is one designed and built by (i) using energy and water efficiently, (ii) reducing pollution and waste, (iii) using environmentally friendly products, and (iv) reusing or rehabilitating an existing building. Although implementing these practices is not the most cost-effective strategy at the outset, the reduced waste of energy and protection of the environment would overall generate better economic results throughout the life of the building. The LEED (Leadership in Energy and Environmental Design) designation is a building rating system developed by the U.S. Green Building Council (USGBC) and applicable to different projects: Building Design and Construction (BD+C), Interior Design and Construction (ID+C), Building Operations and Maintenance (O+M), Neighborhood Development (ND), Homes and Cities and Communities. LEED applications are reviewed under several criteria and can achieve four results: Certified (40-49 points), Silver (50-59 points), Gold (60-79 points), or Platinum (80+ points).
The fashion industry is also being forced to adopt significant changes to be more ESG “sensitive”. Fashion companies have historically accounted for a large share of gas emissions and water waste in the United States. More recently, a welcome trend is emerging of giving nearly the same importance to ESG goals (such as biodiversity impact and the usage of natural fibers) as is traditionally granted to sales targets. This is particularly true for young companies and less-established brands that want to attract new consumers that increasingly question the origin and the method of production of the products purchased.