This week’s round-up features virtual land marketplaces, proposed sanctions from the European Commission against Russia, ESG reporting and transparency in the real estate industry, and more.
This week’s round-up features the intersection of real estate and energy efficiency, including state efforts surrounding clean energy legislation, Inflation Reduction Act tax credits, hotel & hospitality sectors creating sustainable initiatives to reduce carbon emissions, and more.
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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.)