Pillsbury Litigation partner and former federal prosecutor Kimberly Jaimez was featured in the GlobeSt.com article, SEC Ready To Clamp Down On ESG Investment Claims, offering insight on the increased awareness of environmental, social and governance (ESG) concerns in commercial real estate. With ESG now being viewed by most CRE investors as a top priority in business operations, a new source of risk has resulted: increased SEC scrutiny over overinflated or otherwise false ESG claims. This could mean CRE investment funds, REITs, and other real estate entities will have to increase compliance vetting on marketing and communications. Jaimez presented the following comments:
Cybersecurity becomes an increasing concern when buying digital land, a significant property tax break in New York is set to expire, climate disclosure mandates in commercial real estate are on the horizon, and more.
Though ESG has been around for a while, with roots that extend back to the environmental sustainability movement, the script for current ESG litigation and investigations is still being written. ESG efforts have expanded to include diversity within companies and an increased focus on compliance and governance within organizations. Regulatory oversight, especially from the SEC, has swiftly come to the fore to monitor those compliance efforts. As with many areas where the precise regulatory and enforcement regime is still coming into focus, it is crucial to recognize the importance of being both proactive and pragmatic.
In a mixed decision for international investors, the International Centre for Settlement of Investment Disputes (ICSID) recently published a tribunal’s award finding that the Republic of Colombia breached its obligations under the Canada-Colombia Free Trade Agreement when it blocked Eco Oro Minerals Corporation’s mining project in an effort to protect a high-altitude wetland known as the Santurbán Páramo but held that Colombia did not indirectly expropriate Eco Oro’s concession contract with the government pursuant to which Eco Oro’s investment was made because its actions were a legitimate exercise of Colombia’s right as sovereign state to protect its environment. ICSID arbitration, as its name implies, exclusively deals with international commercial disputes, where “investors” (as defined by applicable treaties and include both companies and individuals) submit claims under international treaties against foreign governments. The Eco Oro decision and its underlying analysis are not unique to investor-state arbitration and illustrate how domestic policy concerns, such as the protection of the environment, may result in States acting against the interests of foreign commercial investment.
Amenity-rich buildings become a key focus in enticing employees back into the office, supply chain links are strained by a lack of storage capacity in warehouses and port areas, green lease signings are on the uptick, and more.
Presidential Executive Order 14008, “Tackling the Climate Crisis,” a long and unusually detailed Executive Order published in the Federal Register on February 1, 2021 (see 86 FR 7619), has generated considerable discussion and commentary. Below, I briefly outline its provisions.
In a previous post, we described how the New York City Climate Mobilization Act, 2019 (the CMA, or Local Laws 92, 94, 95, 96, 97, and 147 enacted in 2019) was passed with the goal of reducing New York City’s carbon emissions by 40 percent by 2030 and by 80 percent by 2050 (as against a 2005 baseline as provided for in item 3 of Local Law 97). It is the most ambitious building emissions law to be enacted by any city in the world. The CMA impacts “Covered Buildings” (described below) and, besides contemplating the retrofitting of Covered Buildings to achieve energy efficiency and establishing a monitoring program for Covered Buildings, the CMA contemplates compliance by means of the purchase of carbon offset credits or renewable energy. (Note the new NYC Accelerator program, launched in 2012 by the Mayor’s Office of Sustainability, provides guidance regarding energy-efficient upgrades to properties and emission reductions.)
Environmental Justice, as an urgent priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, the disproportionately high and adverse human health and environment effects of its many programs, policies and procedures on minority populations and low-income populations. The primary legal basis for this order was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance. Over the years, the Supreme Court has reviewed the scope and importance of Title VI. In Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 only prohibits intentional discrimination. Noting that disproportionate impact is not the sole touchstone of invidious racial discrimination. Moreover, the Court also ruled in Sandoval that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has established an administrative system to process environmental justice complaints at 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the program may continue to be the subject of countless symposiums and seminars. However, this may change soon.
The Climate Mobilization Act constitutes a profound shift in the regulation of commercial real estate in New York City—and all stakeholders including building owners, investors, sellers and purchasers, tenants, and lenders will need to consider how to quantify and allocate the costs of compliance (or non-compliance). In “Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City“, colleagues Caroline A. Harcourt and Sheila McCafferty Harvey, discuss the potential impact of the newly enacted Climate Mobilization Act (CMA or the Act) for developers and building owners, tenants and lenders operating or underwriting loans in New York City.
As we previously reported, the popularity of the sustainability linked loan and the green loan have snowballed in recent years. However, it’s not just the loan market that’s taking the consideration of environmental, social and governance (ESG) practices seriously. Studies show that companies are coming under pressure from all sides to adopt sustainable practices.