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Wall Street's top cop establishes climate, ESG enforcement task force

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According to Market Intelligence, December 2022

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Wall Street's top cop establishes climate, ESG enforcement task force

The U.S. Securities and Exchange Commission is tasking almost two dozen officials with rooting out environmental, social and governance-related misconduct under a new initiative.

Housed within its Division of Enforcement, the top U.S. securities regulator has created a 22-person task force led by acting Deputy Director of Enforcement Kelly Gibson that will work to "proactively identify ESG-related misconduct," including any misleading statements from issuers about the risks their businesses face from climate change, according to a March 4 announcement.

"Climate risks and sustainability are critical issues for the investing public and our capital markets," SEC acting Chair Allison Lee said in a March 4 statement.

According to the SEC, the task force will use sophisticated data analysis to mine and assess information across registrants to identify potential violations. It will also analyze disclosure and compliance issues relating to investment advisers' and funds' ESG strategies and will evaluate and pursue tips, referrals and whistleblower complaints on ESG-related issues.

With the task force's announcement, the SEC continues to plow forward in its efforts under Lee to establish internal processes dedicated to climate and ESG issues.

Lee brought on Satyam Khanna, who previously worked as counsel to former SEC Commissioner Robert Jackson Jr., as a senior adviser on climate and ESG issues less than two weeks after taking over as acting chair.

On Feb. 24, Lee ordered the regulator's Division of Corporation Finance to review climate-related financial disclosures and whether issuers have been reporting such information in accordance with prior guidance issued by the SEC. A day before the task force was announced, the SEC's Division of Examinations released its priorities for 2021, highlighting that it will put a greater emphasis on the risk that climate change poses to companies.

SEC Commissioners Hester Peirce and Elad Roisman in a joint statement questioned whether the latest announcement indicates any meaningful change for enforcement.

"Our Divisions of Corporation Finance, Examinations, and Enforcement all have announced climate- or ESG-related initiatives. What does this 'enhanced focus' on climate-related matters mean? The short answer is: it's not yet clear," the two Republican commissioners said. "Do these announcements represent a change from current Commission practices or a continuation of the status quo with a new public relations twist? Time will tell."

In the statement, Peirce and Roisman called the task force's announcement "programmatically" unclear given that the SEC has always pursued instances of companies making misleading or false statements, ESG-related or not, to investors.

The commissioners went on to question the need for the task force, asking whether it would have been more effective to wait on the results of the Division of Corporation Finance's review of climate change-related disclosures or the Division of Examination's work on companies' climate and ESG disclosures.

"Better yet, shouldn't we wait for our Corporation Finance staff to complete its assessment of our existing rules relating to ESG disclosures to find out if they are unclear or in need of updating before we announce an initiative aimed at bringing enforcement actions in this area? But then maybe the Enforcement Division is merely continuing ongoing efforts with a little extra fanfare," Peirce and Roisman said. "Either way, we must continue to review any alleged securities violations in light of the regulations and guidance in existence at the time of the conduct in question."

The SEC is still widely anticipated to take a hard look at cracking down on how corporate America handles climate change in the coming years, primarily through public disclosures.

Gary Gensler, a former derivatives regulator who has been tapped by President Joe Biden to lead the SEC as chair, told lawmakers March 2 that investors are clamoring for more consistent information about how the climate is threatening companies' businesses, signaling his openness to the SEC considering a uniform ESG disclosure regime.

"In 2021, there are tens of trillions of dollars of invested assets that are looking for more information about climate risk," Gensler said at a nomination hearing. "And I think then the SEC has a role to play to help bring some consistency and comparability to those guidelines."