Canada: It's 10 p.m. on The Climate Conduct and Compliance Clock. Do You Know Where Your Risk Strategy Is At?

The climate risk landscape is constantly evolving and being reshaped by a number of factors including, globalization, political and economic events and heightened shareholder activism. Further, the shifts underway are unprecedented – in both scope and pace – with risk exposure being triggered even in the absence of established or "black letter" law.

This is new territory for many, and there is no question that companies need to stay abreast of developments through active monitoring and obtain guidance on what they should be doing. It is especially important given the expanding number of international organizations and groups pushing standards of conduct and compliance above and beyond current regulations. We see several key implications and considerations at play in this evolving risk landscape, including:

Expanding oversight and growing collaboration among international regulators – in terms of both increased societal pressure and as the complexity of climate change itself is better understood and feeds back into policy.

Disruption through innovation and technology – accelerating change in society and in organizations, driven in no small way by rapid advances in digital technologies, such as artificial intelligence and remote sensing, predictive analytics and machine learning.

Inconsistent and widely variable reporting – according to a study commissioned by the Chartered Professional Accountants of Canada, more than three-quarters of TSX-listed companies are making climate-related disclosures, however few may disclose board or senior management oversight of climate-related issues, proactive strategies to transition to a low-carbon economy or even financial metrics or targets.1

Growing financial scrutiny – assessment of climate risk by investors, their financiers and financial institutions continues to expand, with initiatives like the Financial Stability Board's recent Task Force on Climate-related Financial Disclosures (TCFD). Also, numerous securities exchanges and oversight groups in the U.S., the UK and Australia are calling for complete and transparent reporting of not just an organization's assessed risks stemming from climate change, but its capacity and readiness to respond.

Rising number of lawsuits – with high-profile actions such as New York City's recent lawsuit seeking billions of dollars in damages from some of the world's largest listed energy companies for contributing to climate change, or the lawsuits filed in California against five oil companies for billions of dollars to finance infrastructure that would deal with rising sea levels blamed on climate change.

As this changing set of global standards is increasingly used to identify best-in-class organizations, energy companies in particular face heightened scrutiny across environmental, social and governance (ESG) contexts.

With market and shareholder expectations of conduct and operational compliance continuing to exceed legal minimum, you are faced with deciding what your company should do versus what your company must do. The first step is to conduct an audit to determine your risk profile. Then, develop an ESG strategy aimed at meeting risk-relevant operational and reputation objectives. Here are some questions to ask yourself:

  • What are the relevant and emerging expectations of investors, financiers, stock exchanges and regulators for your sector and operation environments?
  • What are sector leaders and other competitors doing?
  • What are the data and governance gaps that would need to be addressed to come to an informed decision and strategy?
  • Are there relevant in-house risk management and reporting tools available to analyze climate risks?

Considerations for an ESG strategy:

  • Adopt TCFD or Carbon Disclosure Project recommendations as a template/framework
  • Establish a dedicated committee to evaluate the impact of climate risk on the business, track industry and regulatory developments, develop recommendations for a climate risk strategy, and then oversee the implementation of that strategy while putting in place and reviewing overall disclosure practices
  • Update risk management policies and procedures to include climate risks, taking into account mitigation and adaption
  • Engage with shareholders, including investors, where appropriate

Companies, especially those in the energy industry, can't afford not to assess climate risk nowadays and their tolerance for the reputational issues that may arise. It is critical to determine your organization's risk tolerance, to develop an appropriate strategy and to ensure that you are prepared to respond to an incident – keeping in mind that complacency itself is one of the most significant risks.

Footnote

1. CPA Canada study of climate-related disclosures by Canadian public companies (https://www.cpacanada.ca/en/business-and-accounting-resources/financial-and-non-financial-reporting/sustainability-environmental-and-social-reporting/publications/climate-related-disclosure-study).

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

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