SEC task force will scrutinize climate and ESG disclosures

Even before the nomination of Gary Gensler, President Joe Biden’s nomination to lead the SEC, is confirmed, the agency has made this new mantra abundantly clear through a flurry of recent statements and new hires. Earlier this week, the agency released the Division of Examination’s 2021 Examination Priorities, which named climate and ESG-related disclosures as the division’s first exam priority.

The latest is Thursday’s announcement of a new Climate and ESG Task Force within the Division of Enforcement, headed by Acting Deputy Director of Enforcement Kelly Gibson, “who will oversee a Division-wide effort, with 22 members drawn from the SEC’s headquarters, regional offices, and Enforcement specialized units.”

“This task force brings together a broad array of experience and expertise, which will allow us to better police the market, pursue misconduct, and protect investors,” Gibson said in the SEC press release.

The new task force will “develop initiatives to proactively identify ESG-related misconduct.” For publicly traded companies, that will mean an evaluation of “material gaps or misstatements in issuers’ disclosure of climate risks under existing rules.” For investment advisors and ESG funds, the task force will analyze disclosure and compliance issues relating to their ESG strategies.

To find these gaps, misconduct, misstatements, and insufficient disclosures, the task force will use “sophisticated data analysis to mine and assess information across registrants, to identify potential violations.” The press release also restates whistleblowers are encouraged to submit tips on potential violations related to climate and ESG disclosures to its tips, complaints, and referrals office.

But even with the launching of the task force, the SEC is not changing the standard by which climate and ESG-related risks are disclosed.

Two Republican SEC commissioners, Hester Peirce and Elad Roisman, pointed this out in a public statement following the task force announcement.

“We assume that the new initiative is simply a continuation of the work the staff has been doing for more than a decade and not a program to assess public filers’ disclosure against any new standards or expectations,” they wrote.

They also wondered if assembling the task force is premature.

“Wouldn’t it be more prudent for us to await the results of the Corporation Finance staff’s latest review of climate change-related disclosure and the Examinations staff’s climate- or ESG-related findings in this new exam cycle before allocating resources to an ESG-specific Enforcement initiative?” they asked. “Better yet, shouldn’t we wait for our Corporation Finance staff to complete its assessment of our existing rules relating to ESG disclosures to find out if they are unclear or in need of updating before we announce an initiative aimed at bringing enforcement actions in this area?”

Maybe all this attention being paid to climate and ESG-related disclosures is simply “a little extra fanfare” for examination and enforcement priorities that have been in place all along, they said.

Others cheered the task force’s creation.

“Decades of deception in the fossil fuel industry have cheated investors of critical information and left our economy woefully unprepared to address climate change. We look forward to working with whistleblowers and others fighting climate-related corruption to ensure that this task force succeeds with its critical mission,” said John Kostyack, executive director of the National Whistleblower Center.

Compliance takeaway

“The concern here is that by creating an enforcement task force, SEC staff will feel the need to show its success by bringing cases,” said Mark Schonfeld, partner with Gibson, Dunn & Crutcher and former director of the SEC’s New York office. The task force “could also be successful if it determines there are no violations.”

As a result of the task force’s formation, public companies should re-examine their disclosures about climate-related risks, particularly if they are in an industry that is vulnerable to legislation or regulation related to climate change or the environment, he said. Such disclosures will be evaluated by SEC staff to determine whether they adequately describe how climate risks could affect their business.

For investment advisors, the SEC has indicated it will scrutinize their description of ESG funds under their management and will seek to determine whether claims made in those disclosures are consistent with the investments actually being made.

For the Enforcement Division to bring an enforcement action, they must determine a disclosure was material and intentionally misleading, “which is a high burden to prove,” Schonfeld said.