On 20 December 2023, the Council of the EU reached an agreement on its negotiating mandate on a proposal for a regulation on ESG ratings  (the “Proposed EU Regulation“). This builds on the European Commission’s proposal, which was published on 13 June 2023.

The EU’s desire to regulate ESG rating agencies is a response to increasing concerns from a variety of stakeholders about the reliability, comparability and transparency of ESG ratings and the data behind these ratings.Continue Reading Council of the EU agrees on proposal to regulate ESG ratings providers

Most UK climate litigation concerns challenges to the decisions of public authorities on projects with environmental effects or policies being adopted by Government that can have significant impacts on the environment.

A series of five recent decisions in the courts – all of which have rejected challenges based on climate grounds – show that the UK courts are extremely reluctant to call into question the decisions of national or local public authorities in the case of individual projects.  However, as we will see, there is room for challenges to be successful in limited circumstances which we consider below.Continue Reading A Wrap-Up of Recent UK Climate Change Litigation

On 28 November 2023, Baroness Young of Hornsey introduced the Commercial Organisations and Public Authorities Duty (Human Rights and Environment) Bill (the “Bill”) to the House of Lords.  If passed, the Bill would introduce mandatory human rights and environmental due diligence (“HREDD”) into UK law.

The description of “reasonable” HREDD set out in the Bill is consistent with the standards set out in the UN Guiding Principles and existing and draft legislation in other jurisdictions (including the EU Corporate Sustainability Due Diligence Directive, “CS3D”, as outlined in our previous blog here).  Companies with international footprints, including through their direct operations and supply chains, should already have in place a plan to implement enterprise HREDD processes that meet existing soft law standards and emerging hard law HREDD requirements.

While it is unclear whether the Bill would be supported by the UK Government, companies should already be taking steps to anticipate and prepare for HREDD.  The direction of travel is undoubtedly trending towards HREDD legislation and stakeholder expectations around how companies should respond continue to increase.  In particular, several jurisdictions have already adopted laws that require companies to identify, address, prevent, mitigate and remedy harms in their operations and supply chains (e.g. France, Germany, Norway, Switzerland, the Netherlands) in advance of CS3D which will directly apply to many large non-EU based companies given its broad extraterritorial application, while others are considering such laws (e.g. CS3D) (e.g., see our previous blogs here and here).Continue Reading Business and Human Rights – could the UK adopt mandatory human rights due diligence?

On 28 November 2023, the UK’s Financial Conduct Authority (“FCA“) published its “Sustainability Disclosure Requirements (“SDR“) and investment labels” policy statement (PS23/16) (the “Policy Statement“). The Policy Statement introduces a set of new rules aimed at tackling greenwashing, including investment product sustainability labels and restrictions on how terms

Our international ESG team has been keeping an eye on what’s going on with regards to green taxonomies. With so much activity already this year, we summarize some of the key developments below.

EU

We recently published this reminder of the EU’s taxonomy framework. Our publication is particularly relevant to non-EU groups with large subsidiaries

UK Prime Minister, Rishi Sunak, has announced a major U-turn on the UK’s “net zero” policies.  This amounts to 3 key policy changes:

  • Electric vehicles – 3 years after announcing a ban on the sale of new petrol and diesel vehicles from 2030, the ban has been delayed to 2035;
  • New exceptions to ban on sale of new domestic gas boilers from 2035 – although the ban on the sale of new gas boilers from 2035 remains, new exceptions will be introduced to help poorer households, although the details are to follow.  The sale of oil, LPG and coal boilers for off-grid homes is to be delayed to 2035;
  • Tougher EPC requirements to be scrapped – from 2025, no residential property was to be let unless it achieved a “C” rating for energy efficiency.  This has been scrapped.  Mr Sunak said that this could have led to a requirement to invest around £8,000 per property.  No announcements were made regarding commercial properties.

The changes have met with a mixed response, with some commentators highly critical of Mr Sunak’s U-turn, warning that introducing uncertainty could severely undermine investor confidence in the UK.Continue Reading UK rolls back “net zero” ambitions, carbon offsets face renewed attack and the spotlight falls (again) on policing carbon markets

Given the ambitious targets for offshore wind in support of the UK’s net zero ambitions, it is recognised that the existing grid connection infrastructure may be inadequate and that it is likely that provision needs to be made for more co-ordinated grid connections that incorporate the additional capability required to connect future offshore generation projects.

The risk of an accusation of “greenwashing” is now an important concern for many companies. Greenwashing is an ill-defined concept but, nevertheless, is increasingly a source of litigation and regulatory scrutiny – with more of both expected. It carries with it reputational, regulatory and litigation risks for which companies should be prepared. Whilst the risks are always context specific – varying by jurisdiction, industry

A new requirement for most developments to achieve a minimum level of “biodiversity net gain” will come into force in November this year.  For some this will be an additional burden when preparing planning applications, but others will see it as an opportunity to create value through enhancing biodiversity whilst burnishing their “green” credentials.

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On 7 June 2023, the UK Advertising Standards Authority (“ASA“) – the UK’s independent advertising regulator – banned a series of advertisements from a number of large oil and gas companies for including misleading information about their socio-environmental credentials. These landmark rulings, which mark the latest step in the ASA’s fight against greenwashing, are expected to set a precedent for how companies advertise their socio-environmental credentials in the future. More broadly, the increased regulatory scrutiny will likely feed into the expected rise in ESG-related litigation.

This move from the ASA mirrors similar moves by regulators and law-makers both in the UK and in other jurisdictions. The UK Competition and Markets Authority (“CMA”) has, for example, commenced investigations into the accuracy of environmental claims made by businesses in the fast-moving consumer goods sector (for further information on the CMA’s investigation, read our earlier blog post here). The US Federal Trade Commission and the European Commission have also taken steps to tighten regulation addressing greenwashing in marketing materials (for further information on these initiatives, read our earlier blog posts here and here).Continue Reading Greenwashing: UK advertising watchdog bans greenwashing advertisements