There’s a new way for Delaware companies to highlight their sustainability chops. Will it be meaningful?

By Lois Yurow – Fellow, G&A Institute

Delaware companies that are focused on sustainability will soon have a new way to demonstrate their dedication.

Effective October 1, any Delaware “entity”—a term that encompasses corporations, partnerships, limited liability companies, statutory trusts, and certain associations—may elect to apply for a so-called “certificate of adoption of transparency and sustainability standards.”

The newly enacted Certification of Adoption of Transparency and Sustainability Standards Act is designed to give Delaware companies a platform for signaling their “commitment to global sustainability.” Since this is the first statute of its kind in the United States, and Delaware is home to a disproportionate number of U.S. companies, it’s worth looking at how the Certification Act is intended to work.

The statute at a glance

On its face, it looks like the Certification Act offers a formal seal of approval — a certificate from the Secretary of State to any entity that commits to publish an annual sustainability report. No big deal, right? But if you look deeper, it becomes clear that a certificate will represent both significant board-level involvement and greater corporate transparency.

Let’s start with key terms

Several definitions in the Certification Act are substantive and intertwined. It will be easier to appreciate what it means to get a certificate if you first understand some terminology.

Standards—the “governing body” (such as the board of directors, general partner, or a “duly authorized and empowered committee”) of a “reporting entity” (one that has or wants a certificate) must adopt “principles, guidelines or standards” against which the entity will measure “the impacts of its activities on society and the environment.” Standards must be “based on or derived from third-party criteria.”

Third-party criteria are “principles, guidelines or standards developed and maintained by” someone unaffiliated with the reporting entity — such as a government unit, an NGO, or an independent consultant—for the purpose of “measuring, managing or reporting the social and environmental impact of businesses or other entities.”

Presumably, the requirement that standards have some relationship to third-party criteria will improve the odds that companies will select credible standards that are tangible and objective. This requirement also may accelerate the movement toward uniform disclosure and reporting standards — such as those developed by GRI or SASB.

Assessment measures—the governing body of a reporting entity must adopt “policies, procedures or practices” that will generate “objective factual information” about how well the entity is performing against the standards it adopted. (In other words, performance metrics.) This includes deciding whether to provide for “internal or external verification” of performance results.

Standards statement—the first step to getting a certificate is filing a standards statement. The most important things a standards statement must do are:

  • affirm that the entity’s governing body adopted resolutions that enumerate standards and assessment measures;
  • affirm that the entity will use those assessment measures to evaluate the entity’s performance in relation to those standards;
  • affirm that the entity will periodically revisit its standards and assessment measures and adjust them if the governing body thinks changes are appropriate;
  • affirm that the entity will publish a report (described below) every year; and
  • indicate where on the reporting entity’s principal website a visitor can (without paying a fee or providing any information) find a discussion of the entity’s “standards and assessment measures, the third-party criteria used . . .[and] the process by which such standards were identified, developed and approved,” as well as all of the entity’s reports.

Report—in order to maintain its certificate, a reporting entity will need to publish on its primary website comprehensive annual performance reports covering these topics:

  • “the standards and assessment measures in effect” over the past year, “the third-party criteria and any other source used to develop [those] standards and assessment measures,” and how the entity identified, developed and approved its standards and assessment measures;
  • the type of information described above regarding any standards or assessment measures the entity changed;
  • how the reporting entity has endeavored to satisfy its standards and whether those efforts included any interaction with stakeholders;
  • current “objective and factual information developed pursuant to the assessment measures” to gauge how the entity performed in relation to its standards;
  • the governing body’s view of “whether the entity has been successful in meeting the standards”;
  • if the entity was not successful, whether the governing body has ordered “additional efforts” to improve performance, and if not, why not;
  • whether the entity retained an independent consultant to help measure, manage, or report on its performance, and if so, whom; and if “materially different,” how the entity intends measure, manage, and report its performance in the next annual reporting period.

With these definitions under our belt, the statute is pretty straightforward.

Putting it all together

Any Delaware entity in good standing will be able to apply to the Secretary of State for a certificate of adoption of transparency and sustainability standards by delivering a standards statement and paying the prescribed fees ($200 to file and $50 for the certificate).

All the certificate will do is attest that the named entity filed a standards statement. The Secretary of State will not even confirm that the entity actually implemented the standards and assessment measures it purports to have adopted. Certificates are renewable every year, also with an application and a fee.

It looks so easy—until you return to the definition of “standards statement.” The seemingly simple application process belies the two rigorous obligations at the core of the statute: board-level involvement and complete transparency around standards, metrics, and results.

Again, the standards statement must affirm that the decision to adopt particular standards and assessment measures was made by formal action at the entity’s highest levels. The standards statement also must promise that the entity will issue an annual report. The prescribed content of that report—standards, metrics, results, and the governing body‘s reaction to it all—suggests this will not be a simple undertaking.

So why would a company bother getting a certificate (and paying fees, and assuming a disclosure obligation)?

Every company is at liberty now, certificate or no certificate, to voluntarily issue a sustainability report. Indeed, 85% of the Fortune 500 published a sustainability report in 2017. No doubt those reports represent a genuine commitment on the part of the issuing companies. Still, it pays to consider who chooses what a given company reports on: what goals it adopts, what metrics it uses to gauge progress, who measures that progress, and what specific information will be shared. With voluntary reporting, companies have almost infinite flexibility.

Under the Certification Act, reporting entities will need to disclose “objective and factual” performance results, and each entity’s governing body will be required to specifically address those results, offering its view of whether they represent success. By imposing these rules, the statute responds to the ever lingering concern that at least some sustainability reports are as much about marketing as they are about real change. The public in general, and investors in particular, may find the Certification Act’s data-heavy reports more valuable.

Liability concerns

Any company thinking about assuming the obligations of a reporting entity will want to consider whether there are any risks. The Certification Act explicitly eliminates two.

First, there is no audit or merit review required. The statute expressly does not prescribe particular sustainability standards. Moreover, every certificate will state that the Secretary of State does not verify standards statements or annual performance reports.

Second, no one will have a cause of action against a Delaware entity because of anything the entity does (such as choosing particular standards and assessment measures) or fails to do (such as falling short of a standard, or refusing to become a reporting entity at all).

Reporting entities may suffer reputational harm if their goals are unrealistically ambitious or easy, or if their disclosure seems inadequate, but these risks are largely controllable. In addition, the standards statement, the annual performance report, and every application to renew a certificate must be “acknowledged.” That means an “authorized person” of the reporting entity must “certif[y], under penalty of perjury, that the information [provided] is accurate and complete to the best of such authorized person’s actual knowledge after due inquiry.” This too presents a largely controllable potential risk.

Conclusion

A few Delaware companies reportedly are mulling whether they want to be the pioneer reporting entities. Many organizations already have the requisite governance and data-gathering processes in place, so applying for a certificate would be a relatively uncomplicated—and possibly logical—next step. For those companies that have not fully implemented sustainability practices and reporting protocols, the Certification Act may serve as another nudge.

Contents Copyright © by Lois Yurow, All Rights Reserved

Guest Commentator Lois Yurow is founder and president of Investor Communications Services, LLC, where she specializes in converting complex legal, business, and financial documents into plain English. Mutual Fund Regulation and Compliance Handbook, a book she co-authored and updates annually, is published by Thomson West. Lois writes and speaks frequently about plain English, disclosure, and other securities law matters. Before forming Investor Communications Services, Lois practiced corporate and securities law, first in Chicago and then in New Jersey. Email: lois@securitieseditor.com

Lois Yurow is a Fellow the Governance & Accountability Institute

 

 

U.S. States and Cities — “Still In” to the Paris Agreement — and Great Progress is Being Made

By Hank Boerner – Chair & Chief Strategist, G&A Institute

This is our second commentary this week on the occasion of the first anniversary of the decision by the Trump White House in June 2017 to begin the multi-year process of formal withdrawal of the United States of America from the Paris COP 21 climate agreement…

The action now is at the state and municipal levels in these United States of America.

Where for years the world could count on US leadership in critical multilateral initiatives – it was the USA that birthed the United Nations! – alas, there are 196 nations on one side of the climate change issue (signatories of the 2015 Paris Agreement) and one on the other side: the United States of America. At least at the sovereign level.

Important for us to keep in mind: Individual states within the Union are aligned with the rest of the world’s sovereign nations in acknowledging and pledging to address the challenges posed by climate change, short- and longer-term.

Here’s some good news: The United States Climate Alliance is a bipartisan coalition of 17 governors committed to upholding the goals of the Paris Agreement on climate change. These are among the most populous of the states and include states on both coasts and in the nation’s Heartland.

The Paris meetings were in 2015 and at that time, the USA was fully on board. That was in a universe now far far away, since the election of climate-denier-in-chief Donald Trump in 2016.

On to the COP 23 and the USA

In 2017, two years after the Paris meetings, the USA officially snubbed their sovereign colleagues at the annual climate talks. A number of U.S. public and private sector leaders did travel to Bonn, Germany, to participate in talks and represent the American point-of-view. This included Jerry Brown, Governor, California (the de facto leader now of the USA in climate change); former New York City Mayor (and Bloomberg LP principal) Michael Bloomberg; executives from Mars, Wal-mart and Citi Group.

While the U.S. government skipped having a pavilion at the annual United Nations-sponsored climate summit for 2017, the US presence was proclaimed loud and clear by the representatives of the U.S. Climate Action Center, representing the climate change priorities of US cities, states, tribes and businesses large and small who want action on climate change issues.

Declared California State Senator Ricardo Lara in Bonn: “Greetings from the official resistance to the Trump Administration. Let’s relish being rebels. Despite what happens in Washington DC we are still here.”

# # #

As the one year anniversary of President Trump’s announcement to leave the global Paris Agreement (June 1, 2018), state governors announced a new wave of initiatives to not only stay on board with the terms agreed to in Paris (by the Obama Administration) but to accelerate and scale up their climate actions.

Consider: The Alliance members say they are on track to have their state meet their share of the Paris Agreement emission targets by 2025.

Consider: The governors represent more than 40 percent of the U.S. population (160 million people); represent at least a US$9 trillion economic bloc (greater than the #3 global economy, Japan); and, as a group and individually are determined to meet their share of the 2015 Paris Agreement emissions targets.

Consider: Just one of the states – California – in June 2016, according to the International Monetary Fund, became the sixth largest economy in the world, ahead of the total economy of France (at #7) and India (#8).

Consider: The US GDP is estimated at $19.9 trillion (“real” GDP as measured by World Bank); the $9 trillion in GDP estimated for the participating states is a considerable portion of the national total.

The states involved are: California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the Commonwealth of Puerto Rico.

The initiatives announced on June 1, 2018 include:

Reducing Super Pollutants (including hydrofluorocarbons (HFCs), one of the Greenhouse Gases, and harnessing waste methane (another GhG).

Mobilizing Financing for Climate Projects (through collaboration on a Green Banking Initiative); NY Green Bank alone is raising $1 billion or more from the private sector to deploy nationally).

Modernizing the Electric Grid (through a Grid Modernization Initiative, that includes avoidance of building out the traditional electric transmission/distribution infrastructure through “non-wire” alternatives).

Developing More Renewable Energy (creating a Solar Soft Costs Initiative to reduce costs of solar projects and drive down soft costs; this should help to reduce the impact of solar tariffs established in January by the federal government).

Developing Appliance Efficiency Standards (a number of states are collaborating to advance energy efficiency standards for appliances and consumer products sold in their state as the federal government effort is stalled; this is designed to save consumers’ money and cut GhG emissions).

Building More Resilient Community Infrastructure and Protect Natural Resources (working in partnership with The Nature Conservancy and the National Council on Science and the Environment, to change the way infrastructure is designed and procured, and help protect against the threats of floods, wildfires and drought).

Increase Carbon Storage (various states are pursuing opportunity to increase carbon storage in forests, farms and ecosystems through best practices in land conservation, management and restoration, in partnerships with The Nature Conservancy, American Forests, World Resources Institute, American Farmland Trust, the Trust For Public Land, Coalition on Agricultural Greenhouse Gases, and the Doris Duke Charitable Foundation).

Deploying Clean Transportation (collaborating to accelerate deployment of zero-emissions vehicles; expanding/improving public transportation choices; other steps toward zero-emission vehicles miles traveled.

Think About The Societal Impacts

The powerful effects of all of this state-level collaboration, partnering, financial investment, changes in standards and best practice approaches, public sector purchasing practices, public sector investment (such as through state pension funds), approvals of renewable energy facilities (such as windmills and solar farms) in state and possibly with affecting neighboring states, purchase of fleet vehicles…more.

California vehicle buyers comprise at least 10% (and more) of total US car, SUV and light truck purchases. Think about the impact of vehicle emissions standards in that state and the manufacturers’ need to comply. They will not build “customized” systems in cars for just marketing in California – it’s better to comply by building in systems that meet the stricter standards on the West Coast.

US car sales in 2016 according to Statista were more than 1 million units in California (ranked #1); add in the other states you would have New York (just under 400,000 vehicles sold); Illinois (250,000); New Jersey (250,000) – reaching to about million more. How many more vehicles are sold in the other Coalition states? Millions more!

(Of course, we should acknowledge here that the states not participating yet have sizable markets — 600,000 vehicles sold in Florida and 570,000 in Texas.)

Project that kind of effect onto: local and state building codes, architectural designs, materials for home construction; planning the electric distribution system for a state or region (such as New England); appliance design and marketing in the Coalition states (same issues – do you design a refrigerator just for California and Illinois?).

There are quotes from each of the Coalition governors that might be of use to you. (Sample: Jerry Brown, California: “The Paris Agreement is a good deal for America. The President’s move to pull out was the wrong call. We are still in.”) You can see them in the news release at: https://static1.squarespace.com/static/5a4cfbfe18b27d4da21c9361/t/5b114e35575d1ff3789a8f53/1527860790022/180601_PressRelease_Alliance+Anniversary+-+final.pdf

# # #

In covering the 2017 Bonn meetings, Slate published a report by The Guardian with permission of the Climate Desk. Said writers Oliver Milman and Jonathan Watts: “Deep schisms in the United States over climate change are on show at the U.N. climate talks in Bonn, where two sharply different visions of America’s role in addressing dangerous global warming have been put forward to the world.

“Donald Trump’s decision [to pull out of the Paris Climate Agreement] has created a vacuum into which dozens of city, state and business leaders have leapt, with the aim of convincing other countries that the administration is out of kilter with the American people…”

# # #

At the US City Level

Jacob Corvidae, writing in Greenbiz, explains how with the White House intending to withdraw, cities are now in the driver’s seat leading the charge against climate change.

Cities have more than half of the world’s populations and have the political and economic power to drive change.

The C40 Cities Climate Leadership Group is the Coalition helping cities to make things happen. The C40 Climate Action Planning Framework is part of a larger effort to make meaningful progress toward carbon reduction goals and build capacity at the municipal level. Cities are expected to have a comprehensive climate action plan in place by 2020. This will include 2050 targets and required interim goals.

The cities have the Carbon-Free City Handbook to work with; this was released in Bonn in 2017 at COP 23. There are 22 specific actions that can (1) drive positive impacts and (2) create economic development. This September the Carbon-Free Regions Handbook will be available. There is information for you about all of this at: https://www.greenbiz.com/article/every-action-how-cities-are-using-new-tools-drive-climate-action

The clarion call, loud and clear: We Are Still In!  Watch the states, cities and business community for leadership on meeting climate change issues in the new norms of 2018 and beyond.