Climate Change Risks and Disclosure Requirements in Australia: A Sampling of 2013 Company Disclosures has Shown only Limited Information on the Risks and Impacts arising from Climate Change

by Amanda Liu, CCCL Affiliate*

A review of the 2013 disclosures made in annual reports from a sample of Australian Securities Exchange (ASX) Top 20 listed entities has shown a lack of comprehensive risk identification and discussion which links climate change risks to business strategy and financial performance. The review found that many of the company annual reports which were considered contained only limited basic information on climate change risks, if any at all, rather than any substantive disclosure of the risks associated with climate change impacts and their materiality on operations, business strategy or financial performance.

In August 2013, the ASX Corporate Governance Council released a revised draft of its Corporate Governance Principles and Recommendations which all ASX-listed entities are required to comply on an “if not, why not” basis. Public submissions in response to the draft revisions closed in November 2013. One of the new proposed recommendations would require ASX-listed entities to disclose environmental and social sustainability risks to investors. This follows the increasing calls globally for the business community to address matters of economic, environmental and social sustainability in their disclosures for greater transparency on these matters so that investment risks can be properly assessed. To date, market-driven environmental and sustainability reporting is already undertaken to a limited extent amongst the largest ASX-listed companies, however practices have varied in terms of whether the risks of climate change are discussed at all as well as the quality of the disclosure. In March 2013, Australia’s corporate, markets and financial services regulator, the Australian Securities and Investments Commission (ASIC) published ASIC Regulatory Guide 247 which provided guidance to ASX-listed entities on what should be provided in an entity’s operating and financial review which forms part of its annual report. Relevant to the risks of climate change, such as sea level rise and extreme weather events, the ASIC regulatory guide provides that operating and financial reviews should include a discussion of environmental and other sustainability risks where those risks could affect the entity’s achievement of its financial performance or outcomes disclosed, taking into account the nature and business of the entity and its business strategy.

The CCCL working paper, “Climate Change Securities Disclosures in Australia,” by Amanda Liu (Columbia Law School, LLM 2013 graduate) reviews the above disclosure laws for Australian-listed entities under Australian securities filings regulations and provides an analysis of what is being reported in practice for the 2013 reporting year in relation to the risks of climate change.

*Amanda Liu is is an Australian-trained corporate lawyer with experience in energy and resources issues in the Australian private sector. She holds an LL.M. degree from Columbia University and prior to her graduate studies was an associate at Herbert Smith Freehills in Sydney, Australia.

Photo courtesy of Vintuitive

Shelley Welton

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Published April 9, 2021

April 2021 Updates to the Climate Case Charts

FEATURED CASE

Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies. The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.” City of New York v. BP p.l.c., No. 18-2188 (2d Cir. Apr. 1, 2021).