Reader’s Note: The Columbia Center on Sustainable Investment (CCSI) and the Sabin Center for Climate Change Law (Sabin Center) are conducting a Landscape Analysis of Antitrust and Sustainability to identify the boundaries of competition and collaboration in markets as they impact non-economic benefits, particularly with respect to sustainability initiatives. In connection with this effort, the reading list below offers an introduction to the intersection of sustainability and antitrust, with a predominant focus on the US. We hope this is useful to practitioners, organizations, and firms who are seeking to familiarize themselves with these issues. A full report detailing the initial findings of the Landscape Analysis is available here.
Top Recommended Resources:
[Webinar] Overview of interconnected antitrust + sustainability considerations, including competitor collaborations, the anti-ESG movement, greenwashing, and more:
- Arnold and Porter Webinar, 27 April 2023, ESG Investigations Series: Navigating The Minefield Of State AG, DOJ, And FTC Enforcement Risk.
[Blog] Contends that much of ESG related corporate and investor activity does not run afoul of antitrust law. “Other than in rare circumstances, antitrust law is generally concerned with collaborative behavior between competing firms and negative effects on consumers. Companies seeking to take action to align themselves better with customer or market preferences, reduce their carbon footprint, choose suppliers who are themselves more sustainable (and thus reliable in the long term), be responsive to investor priorities, or otherwise take account of ESG factors, all in the interest of creating long-term value, generally have wide liberty in implementing such single-firm policies.”:
- Antitrust and ESG | Harvard Law School Forum on Corporate Governance Forum, January 21, 2023, which summarizes the authors’ lengthier analysis, here: Understanding the Role of ESG and Stakeholder Governance Within the Framework of Fiduciary Duties.
[Short primer] Legal analysis of the difference between unilateral and collaborative ESG initiatives. Notes that although “virtuous intentions do not immunize companies from antitrust laws…the overall message is that while companies implementing ESG commitments should be conscious of antitrust law, they should be confident that antitrust will not stand in the way of ESG efforts that are well justified and carefully implemented.”
- Hill Wellford, Ryan Will, and Laura Muse, ESG Considerations and Antitrust: Why ESG-Focused Efforts Have Little to Fear from Antitrust Law, Vinson & Elkins LLP | ABA Antitrust Section Spring Meeting 2022, Panel on “Making Antitrust Sustainable” (2022).
[Blog] Breakdown of state-level anti-ESG laws, some of which incorporate boycott language:
- ESG Battlegrounds: How the States Are Shaping the Regulatory Landscape in the U.S. | Harvard Law School Forum on Corporate Governance Forum, March 11, 2023.
[Academic Paper] Explains how antitrust law shapes market coordination, and private-sector firms are one or many economic actors to consider when allocating coordination rights. “It is conventionally understood that the purpose of antitrust law is to promote competition. Much more fundamentally, however, antitrust law allocates coordination rights. In particular, our current antitrust framework authorizes large, powerful firms as the primary mechanisms of economic and market coordination.” This “has served to undermine other coordination mechanisms—such as workers’ organizations, “cartels,” and the public coordination of markets.”
- Sanjukta Paul, Antitrust As Allocator of Coordination Rights, UCLA Law Review, Vol. 67, No. 2, (2020).
Primer Articles and Webinars – Sustainability and Antitrust in Tension:
- Cynthia Hanawalt and Denise Hearn, The Slippery Notion of Boycotts in the Anti-ESG Movement, Climate Law: A Sabin Center Blog, June 14, 2023.
- Columbia Center on Sustainable Investment, April 25, 2023, Webinar: Does Antitrust Help or Hinder Sustainability?
- Elizabeth Paton, Ephrat Livi, and Jenny Gross, When Does Collaboration Become Collusion?, New York Times, November 7, 2022 (updated Nov. 13, 2022).
- Matteo Gasparini, Knut Haanaes, and Peter Tufano, When Climate Collaboration is Treated as an Antitrust Violation, Harvard Business Review (October 17, 2022).
- Elizabeth Meager, Why competition law is a threat to climate collaboration, Capital Monitor (October 10, 2022).
- Marios Iacovides, Why Aligning Antitrust Policy With Sustainability is a Moral Imperative, ProMarket (March 22, 2022).
- Hal Singer, Gangster Antitrust and the Conservative Fight to Burn Fossil Fuels, The American Prospect (August 3, 2020).
Academic Papers and Reports – Why Aspects of Competition Policy May Be a Barrier to Sustainability, and How to Respond:
- Michelle Meagher and Simon Holmes, A Sustainable Future: How Can Control of Monopoly Power Play a Part? (May 2022).
- Amelia Miazad, Prosocial Antitrust, 73 Hastings Law Journal 1637 (2022).
- Amelia Miazad, From Zero-Sum to Net Zero Antitrust, UC Davis Law Review, (May 2023).
- International Chamber of Commerce, How competition policy acts as a barrier to climate action (November 10, 2022).
Competitor Collaboration Agency Guidelines (US, Canada, UK, and EU):
- Official Website of the U.S. Federal Trade Commission (“FTC”), Antitrust Guidelines for Collaborations Among Competitors, Issued by the Federal Trade Commission and the U.S. Department of Justice, (April 2000).
- Official Website of the Government of Canada, Competition Bureau, Competitor Collaboration Guidelines (May 6, 2021).
- Official Website of the Government of the United Kingdom, Competition Markets Authority, Draft guidance on environmental sustainability agreements (February 28, 2023).
- Official Website of the European Commission (“EC”), Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, (June 1, 2023).
Cynthia Hanawalt is the Director of Climate Finance and Regulation at the Sabin Center for Climate Change Law.
Denise Hearn
Denise Hearn is a Senior Fellow at the Columbia Center on Sustainable Investment and co-author of The Myth of Capitalism: Monopolies and the Death of Competition.
