June 26, 2022

Volume XII, Number 177

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June 24, 2022

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Update on Securities and Exchange Commission’s Landmark Proposed Climate-Change Disclosure Rulemaking

Things to Consider

Rulemaking

  1. Coordinate closely with trades to ensure their comments reflect concrete information about impracticability and cost; these make a difference in the admin record upon judicial review

  2. Trade associations and industry groups are taking the lead on advocacy.

  3. Opposition primarily has been limited to Republicans, likely limiting the ability to affect the proposal through political pressure.

Subject Matter and Staff Readiness

  1. Carefully inventory existing climate-, ESG-, and sustainability-related disclosures, statements, commitments, and repositories of knowledge relative to climate issues, emissions, and strategies; gap spot relative to the SEC proposal so you know where some of your talent and resources will need to be deployed

  2. Line up your A-Team of internal leaders and external advisers (auditors, ESG advisers, lawyers) to ensure you’re in the mix as the industry evolves its thinking on the hard stuff

  3. Recognize that the SEC proposal is just that – a proposal – and while the final rule will almost certainly differ from the proposed rule in important ways, expect a final rule to be at least directionally similar – be thinking deeply about how you would go about complying with the proposed version while remaining nimble around specific approaches that are subject to change

  4. Calculating and reporting on emissions is hard; developing and communicating business strategies that are adequately informed by climate risks, existing and future requirements, and energy transition issues is harder – identify and task a diversely multidisciplinary team to think and engage deeply and creatively on your company’s trajectory in a carbon-constrained world

Governance

  1. As part of elevated governance around ESG, immediately review the current timetable and direction of your 2022/23 voluntary ESG reporting; adjust it as appropriate or it will steam forward without regard for the consequences under the proposal

  2. Implement policies for commercial contracts that align with company ESG policies and procedures (1 and 2 as applicable), ensure contracts contain appropriate/relevant protections and risk allocation, review outstanding contracts, and consider revisions when appropriate.

  3. Ensuring governance and compliance policies and procedures are aligned and take into account the proposed rules for each stage of the process, coordinating with critical departments and team members.

Litigation

  1. Maximize prevention by ensuring all public facing statements regarding climate, sustainability, the transition and other ESG matters are coordinated, consistent and align with the governance and compliance

  2. Advocacy may be limited by concerns of being “anti-transparency” or “anti-information sharing;” effective advocacy will need to balance concerns and communicate impacts of a complex and highly specialized issue.

© 2022 Bracewell LLPNational Law Review, Volume XII, Number 145
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About this Author

Kevin Ewing, Energy, environmental, attorney, Bracewell law firm
Partner

Kevin Ewing advises chiefly energy and infrastructure companies concerning natural resources and environmental issues arising from new regulations and agency policies, corporate risk management, and major incidents.  His clients are generally involved in offshore exploration and development, transmission siting, gas pipelines, LNG facilities, and highways.  Kevin is regularly involved in crisis preparedness and response, representing clients before government investigators, in negotiations with federal agencies, and in internal investigations.

...

202-828-7638
Rachel goldman, complex commercial litigation, attorney, Bracewell law
Partner

Rachel Goldman is an experienced litigator in both federal and state courts, at the trial and appellate levels. Her practice focuses on complex commercial matters, including claims for breach of contract, post-acquisition disputes, class actions, False Claims Act cases, insurance coverage disputes, contested bankruptcy matters, challenges under the Commerce Clause and the Supremacy Clause, government regulation, securities litigation, construction law, First Amendment and libel actions. Additionally, Rachel's tenure as in-house counsel provides a valuable perspective of...

212-508-6135
Charles H. Still Jr., Corporate Attorney, Bracewell Law firm
Partner

Charles Still advises clients on capital markets transactions and corporate governance and securities law compliance matters. Mr. Still has experience representing issuers and investment banks in a variety of public and private securities transactions. Mr. Still's experience includes public and private offerings of high-yield, investment-grade and tax-exempt debt securities, initial public offerings, and other public and private offerings of equity, convertible and hybrid securities. Mr. Still also represents clients on refinancing transactions and other transactions...

713-221-3309
Timothy Wilkins Austin Environmental Climate Attorney Bracewell Law Firm
Managing Partner

Tim’s clients rely on him for strategic environmental permitting assistance, the defense of environmental enforcement actions and assistance with the environmental aspects of major transactions. His clients report in Chambers USA that “he really gets issues and is commercially minded” and that “one of Tim’s chief strengths is his ability to explain the law in a way that anyone can understand” (2019). They have also described him as “a very astute lawyer, liked for his quickness and thorough responses” (2007); as having “great business acumen and amazing negotiation skills” (2009...

512-542-2134
Christine Wyman, Bracewell Law Firm, Energy and Environment Law Attorney
Senior Counsel

Christine Wyman assists clients in developing policy strategies and implementing them through effective participation in the legislative and regulatory process.  Her work covers a broad range of issues, including energy, environmental, permitting, and pipeline safety.  Her experience includes advocating for energy, oil and gas, and industrial clients before Congress and a variety of federal agencies, including the White House, U.S. Environmental Protection Agency, U.S. Department of Energy, U.S. Army Corps of Engineers, U.S. Department of Interior, and U.S. Department of...

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