Is the SEC getting serious about sustainability?
By Sanford Lewis
Much of what we think of as corporate sustainability reporting is currently done on a voluntary basis. But most observers believe it is only a matter of time until sustainability disclosure will be a legal requirement just as financial disclosure is today.
The Securities and Exchange Commission recently took an important and celebrated step toward mandating sustainability disclosure with a guidance on climate related risks. The guidance clarified duties of companies to disclose certain kinds of climate data and analysis in SEC filings. The guidance was based on existing legal requirements, such as the duties to report on litigation and liabilities and on emerging trends, events and uncertainties.
Since these requirements are already on the books, why the need for guidance? NGO and investor reviews of SEC filings show that, in the absence of SEC guidance, environmental and social issues disclosure in SEC filings is sparse, inconsistent, and typically omits large issues facing the reporting company.
For instance, there is growing concern by investors on how potential environmental impacts from natural gas extraction including drilling and related processes may affect energy companies. An estimated 60-80% of natural gas wells drilled in the next decade will require a process known as “hydraulic fracturing” (“fraccing”) in which huge volumes of water, chemicals and particles are injected underground to release natural gas. Public concerns regarding toxicity and water impacts are already having an effect.
For instance, Chesapeake Energy, recently withdrew several natural gas-related development plans after public and government expressions of concern on potential environmental hazards. These included plans to drill in the New York City watershed, to dispose of waste water in an abandoned well near a water supply in upstate New York, and to withdraw water for fracturing from the Delaware River basin. Yet, the company did not mention these problems in its latest annual 10-K report filed with the SEC.
Another company, Cabot Oil & Gas, was hit with numerous environmental enforcement actions in 2009 around its operations in Pennsylvania due to toxic spills, and to methane entering nearby private drinking wells. Enforcement included a temporary shutdown order and a consent agreement containing a civil penalty of $120,000. Again, these did not appear in the Company’s SEC filings.
The lack of disclosure of the $120,000 penalty might seem notable in light of an SEC regulation requiring disclosure of pending or likely environmental enforcement actions where the penalty is expected to exceed $100,000. But a recent study found that 73% of all companies are not disclosing environmental enforcement actions with penalties in excess of $100,000. It seems either the rule’s applicability to specific cases is considered by companies to be equivocal, or the absence of SEC enforcement is not inspiring broad compliance.
For Cabot, the $120,000 penalty was not the end of the matter. On April 15, 2010, the state modified the consent agreement with a fine of $240,000, and a continuing penalty of $30,000 per month until Cabot rectifies identified environmental problems. The new order also bans the company from drilling new wells in the area for a year. In response, the company issued a news release (but so far, not an SEC disclosure) noting that “This modified order does not impact the number of wells scheduled to be drilled under Cabot’s 2010 drilling effort, nor will it impact our production guidance.”
Shareholders monitoring the gas companies remain concerned about poor disclosure. New York State Comptroller Thomas DiNapoli, Green Century Funds and numerous other investors are attempting to fill the natural gas sector’s disclosure gap through a series of shareholder resolutions requesting reports on this issue by energy companies. Beyond the disclosure gaps on this specific issue, it is obvious that additional SEC guidance and enforcement could enhance disclosure of an array of issues in SEC filings.
On the other hand, better enforcement or single issue approaches like the climate guidance,
are not the end-all and be-all of sustainability disclosure. Arguably, fully integrating current financial reporting to the SEC with data associated with impacts of the corporation on society could be far more useful. The Social Investment Forum submitted a proposal to the SEC last summer calling for movement in the direction of an integrated disclosure requirement, such as that suggested by Harvard business professor Robert G. Eccles and Michael P. Krzus of Grant Thornton LLP in their new book, One Report: Integrated Reporting for a Sustainable Strategy.
The SIF proposal had two elements. First it requested that the SEC require issuers to report annually on a comprehensive, uniform set of sustainability indicators. The letter suggested that the Global Reporting Initiative (GRI) reporting guidelines would be a reasonable starting point. Secondly, it asked that the SEC issue a guidance to ensure disclosure of short- and long-term sustainability risks in the Management Discussion and Analysis section of the 10-K (MD&A). The latter proposal would reduce the subjectivity of a company’s decisions to disclose by providing more objective thresholds to trigger disclosure obligations, such as disclosing the emergence of peer-reviewed studies indicating potential hazards of a company’s products or activities.
Such changes would go much further in ensuring that investors and other stakeholders have ready access to the information needed for an integrated examination of where and how finances and sustainability converge.
About Sanford Lewis
SANFORD LEWIS is an attorney focused on environmental and securities law. His clients include investors, institutions, NGOs and coalitions, including the Investor Environmental Health Network (IEHN). He is an advocate for reform of disclosure and accounting standards of the Financial Accounting Standards Board and the Securities and Exchange Commission, and for the right of shareholders to bring resolutions. His law practice focuses on the drafting and defense of shareholder resolutions, and review of corporate SEC filings for sufficiency of disclosures related to sustainability and human rights. Lewis is author of the 2009 report for IEHN, Bridging the Credibility Gap: Eight Corporate Liability Accounting Loopholes which Regulators Must Close. In addition to CSRwire Talkback, Lewis blogs at http://corporatedisclosurealert.blogspot.com and tweets as @sanfordlewis. In addition to law, Sanford Lewis also produces public policy videos, through his video company, Strategic Video.
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