Sustainability, Resiliency and Risk Mitigation

October 15, 2021 by Brad A. Molotsky

#ESG – NJ Utility PSEG announces two new environmental commitments and issues 2021 Sustainability Report

Local utility Public Service Enterprise Group (“PSEG”) announced earlier today, October 15, 2021, that it has joined The Race to Zero and Business Ambition for 1.5°C, two campaigns that use science-based targets to aid the fight against climate change.

The Race to Zero and Business Ambition for 1.5°C campaigns are designed to help mobilize support from businesses, cities, regions and investors for a healthy and resilient zero-carbon economy, in line with global efforts to limit warming to 1.5°C.

PSEG’s also issued its 2021 Sustainability and Climate Report, which updates the company’s achievements and goals for a wide range of topics, including air emissions, energy efficiency, transportation and waste minimization.

PSEG Chairman and CEO Ralph Izzo said “Climate change is one of the preeminent challenges of our time, and PSEG has an obligation to help address climate change and its effect on our environment, our customers and communities around the world.”

Their Report showed PSEG’s generation portfolio emission rates for NOx and SO2 were down year-over-year by 58% and 77%, respectively, reflecting emission rates that are significantly below industry averages.

The Report also provides updates on PSEG’s progress across a range of sustainability categories, including:

Energy efficiency: PSEG’s energy efficiency targets have been updated and remain on track. New Jersey regulators approved $1 billion of energy efficiency spend for the three-year programs, designed to help the state achieve its updated framework for energy efficiency and peak demand reduction programs, setting five-year savings targets of 2% for electric distribution and 0.75% for gas distribution companies. PSEG’s targets are aligned with New Jersey’s Clean Energy Act (2018), which calls for these savings to be achieved by 2023.
Transportation: PSEG aims to reduce fossil fuel use in its own transportation fleet through vehicle electrification, rightsizing the fleet and utilizing renewable fuels. By 2030, PSEG aims to convert its passenger vehicles, such as sedans and SUVs, 60% of medium-duty vehicles and 90% of heavy-duty vehicles to battery electric vehicles, plug-in hybrids or anti-idle jobsite work systems.
Waste minimization: Companywide, waste and recycling programs successfully diverted 95.5% of material from landfills in 2020. The ongoing goal for its utility, PSEG to focus on new waste streams for recycling, which will continue to decrease landfill tonnage. The waste minimization goal for PSEG is to divert in excess of 95% of material from landfills.
Air emissions: PSEG is reducing air and other emissions by updating its operations and transitioning to cleaner sources of energy, and, per their Report, already has one of the lowest emissions rates among investor-owned power producers, according to MJ Bradley’s Benchmarking Air Emissions report, July 2021. As of 2020, PSEG has reduced its greenhouse gas emissions by more than 54% since 2005 through switching to lower-carbon fuels, improving energy efficiency and modernizing its electricity and natural gas networks, among other strategies.
Biodiversity: PSEG is committed to promoting and enhancing biodiversity through natural resource conservation while continuing to operate in a safe and reliable manner. PSEG established the Estuary Enhancement Program in 1994. Protection of natural resources and biodiversity informs their environmental philosophy and the planning process considers the potential impacts on regional biodiversity.
Diversity, equity and inclusion: PSEG has a target of 30% of total applicable spending allocated to diverse suppliers, including minority-, women-, veteran- and LGBTQ+-owned suppliers. During 2020, PSEG had a sixth consecutive record-setting year by buying more than $644 million worth of goods and services from diverse suppliers, a 15% increase over 2019. More than 28% of the company’s purchases were with diverse vendors. And PSEG is helping develop New Jersey’s clean energy workforce through innovative training and development programs, emphasizing low- to moderate-income and underrepresented communities.
Environmental justice: According to the Report, PSEG is developing an environmental justice commitment in support of the many diverse communities it serves across the region and believes such a commitment should convey the importance of centering environmental justice considerations across the organization so that customers — especially those in underrepresented communities — can benefit from the coming changes of a decarbonized future.

Triple Bottom Line – PSEG is one of a growing number of public utilities that have pivoted and started to embrace climate goals and climate change as being critical to their future success. While not all utilities are aligned this way, many are beginning to take real steps to make change in this regard. Much still to do for sure but good, solid, accountable and reportable steps in the sustainability and ESG arenas. Kudos for the effort and the transparency.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, Jolie-Anne S. Ansley, David Amerikaner, Christiane Campbell, Sheila Slocum-Hollis, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

September 28, 2021 by Brad A. Molotsky

ESG: Boston University Joins the Growing List of Universities Divesting from Fossil Fuels

Earlier this week, Boston University’s Board of Trustees announced that they had decided to divest its endowment from fossil fuels.

According to an open letter dated Sept. 23 and posted on the school’s website, President Robert Brown said the board made its decision earlier that week.

As of Sept. 22, the school will no longer commit direct investments in companies that extract fossil fuels. It will also divest from current, direct investments in fossil fuel extractors and will not commit to any new investments in dedicated fossil-fuel focused products in any asset class.

However, the school has private fossil fuel investments that will likely take more than a decade to wind down per reporting from Justin Mitchell.

The release also indicated that the endowment will seek out investment managers that can provide opportunities in renewable energy sources and “fossil-fuel-free products.”

Brown’s letter also stated that only “a very small fraction” of the university’s endowment is invested in “fossil fuel producers and extractors,” rendering the move to divest “economically inconsequential.”

According to Mr. Mitchell, the endowment is valued at more than $3 billion, according to Boston University’s website and it had approximately $2.4 billion at the end of the 2020 fiscal year, according to an annual report from the National Association of College and University Business Officers.

Boston University is the latest prominent university endowment to announce a divestment from fossil fuels, joining the University of California, Brown University, Cornell University, Georgetown University and Harvard University, in committing to this type of divestiture program.

Triple Bottom Line – BU has joined the growing chorus of major institutions that have begun divesting their endowments of fossil fuel investments. While BU’s announcement is not individually overly statistically significant numerically, the number of major higher educational institutions is continuing to grow and gain momentum. As more institutions of higher education join this chorus, it is likely that fossil fuel divestiture will become more than a few one offs and has the potential to become a trend in the ESG space.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, Jolie-Anne S. Ansley, David Amerikaner, Edward Cramp, Katherine D. Brody, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

September 21, 2021 by Brad A. Molotsky

ESG – Wynn Resorts Announces Sustainability Goals with public ESG Reporting – Big Moves!

Earlier this week, on September 21, 2021 Wynn Resorts issued its Environmental, Social and Governance (ESG) Report, which included the Company’s collective pledges and defined goals to decrease emissions and confront the mounting risk of climate change.

According to the report, Wynn Resorts has achieved various ESG and Diversity, Equity and Inclusion (DEI) goals, with strides being made in community outreach and crisis relief efforts, responsible business practices, and human rights.

In the report’s forward, Wynn Resorts CEO Matt Maddox remarked, “…operating in today’s socially and environmentally-fraught world, [the company] is called to a higher standard: to take responsibility, not just for our decisions, but for the all future impacts of those decisions. Impacts we ourselves may not live to see, but will have caused, nonetheless. Decision-making with careful consideration to the impacts 20 or 30 years from now isn’t just essential, it’s an existential imperative. That is what the future demands of us.”

The Wynn Resorts sustainability program, known as Goldleaf, attempts to bring solutions to the wide range of environment and climate challenges that are unique to each resort that Wynn Resorts operates.

Under the direction of CEO Matt Maddox and Chief Sustainability Officer Erik Hansen, the Company has committed to the following Wynn Resorts Corporate Sustainability Goals:

Net-Zero by 2050: To reduce or offset all carbon dioxide (CO2) produced by our operations no later than 2050.

Carbon Dioxide Emissions Peak by 2030: To stop and reverse year-over-year growth of operational carbon dioxide (CO2) emissions by 2030.

50% Renewable Energy Procurement by 2030: To increase Wynn Resorts supply of renewable energy produced or procured to at least 50% of total consumption by 2030.

The above commitments are aligned with the recommendations made by the Intergovernmental Panel on Climate Change (IPCC) for limiting global warming to below 1.5 degrees Celsius, as referenced in the 2015 Paris Climate Accord.

In 2020, Wynn Resorts completed several major projects in renewable energy, waste diversion, and emissions reduction, including:

Wynn Resorts installed 23 Megawatts of solar power capacity in the United States, which offsets 100% of the energy consumed in the 560,000 square-feet of convention space in Las Vegas, and up to 75% of the peak power demands of the entire 10-million-square-foot Las Vegas resort.

Wynn Las Vegas reduced its annual energy consumption by 20% in 2020 relative to 2015 through capital investments in critical energy-reducing technologies and operational efficiencies, most notably the 160-acre Wynn Solar Field and a concerted effort on preventive systems maintenance.

Encore Boston Harbor received 100% of its energy from renewable and green sources of power and, according to the Report, is the first integrated resort in the Unites States with an onsite microgrid balancing solar energy production, combined heat and power co-generation, and battery storage.

Wynn Las Vegas reduced Carbon Dioxide (CO2) emissions by over 80,000 metric tons from 2019 to 2020, achieved by offsetting energy procured from traditional fossil fuel-based generation with renewable and green energy products.

Encore Boston Harbor diverted 100% of waste from the landfill in 2020 during its first full year of operation, utilizing its comprehensive waste management infrastructure of recycling, composting and waste-to-energy conversion to ensure no waste goes to a landfill.

Wynn Resorts CEO Matt Maddox spearheaded the creation of one of the hospitality industry’s first science-based Health & Safety Plan, which Maddox presented during the White House Business Council on Reopening. The plan became the preeminent roadmap to a successful reopening effort, with policies adopted by several other international brands and industries.

Wynn Las Vegas collaborated with University Medical Center (UMC) to open the UMC COVID-19 Vaccination Center, the first vaccination site to be located onsite at a resort, which administered over 50,000 vaccinations to eligible Nevada residents.

Wynn Las Vegas built and opened the Lighthouse Lab COVID-19 testing facility, a 3,000-square-foot facility at the resort staffed by medical professionals from Lighthouse Lab Services who administer up to 7,000 PCR tests per day, helping usher the return of convention business and group events.

Globally, per the Report, Wynn Resorts donated $23 million USD in funds and in-kind donations to charities in 2020, which included $4.75 million in direct COVID-19 relief efforts, almost $1 million in food and meals, and over 2.5 million pieces of personal protective equipment to recipients like the Nevada National Guard and the Macau Government. In addition, Wynn Resorts global workforce volunteered over 34,000 hours of time in 2020.

The Wynn Resorts Human Rights Policy was broadened in 2020 to include specific expectations and core principles for diversity, inclusion, and non-discrimination. In addition, the Wynn Resorts Diversity Council drafted the first Wynn Resorts DEI Policy to codify goals that foster a culture of inclusion, embrace a diverse workforce, and develop vendor partnerships that create a fair and equal economy.

According to the company, extensive training and security procedures were enhanced in 2020 to combat human trafficking and commercial sexual exploitation, including the development of a company-wide training program for trafficking awareness that will be mandatory for all employees.

The Wynn Resorts ESG Report presents information that references select Global Reporting Initiative (GRI) Standards and Sustainability Accounting Board Standards (SASB).

Triple Bottom Line – Wynn’s public announcement of their Sustainability Goals is a big step and will likely put pressure on their competitors to make similar announcements regarding their plans. Time will tell. Care to take a bet on this front?

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, Jolie-Anne S. Ansley, David Amerikaner, Adam Berger, Frank DiGiacomo, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

July 2, 2021July 2, 2021 by Brad A. Molotsky

ESG – Green Bonds and Green Financing Continues Torrid Pace of Uptake – $2.36 Trillion Anticipated by 2023

I had the pleasure of hosting Emily Paciolla (Federal Realty), Dan Winters (GRESB), Ethan Gilbert (Prologis) and Ben Myers (Boston Properties) this past week on our monthly ESG podcast.

Wow, what a fascinating conversation focusing on what each of their companies (leaders in their own industry segments of industrial, office and retail as well global benchmarking on the GRESB front) are doing and how they are utilizing green bonds as a part of their strategies for continuing to invest in sustainable solutions for their companies and their clients (i.e., their tenants).

The panelists represent over 1 Billion Square Feet of office, industrial and retail space in the US and abroad and are market movers in their respective sectors.

We heard on the podcast that interest in GRESB, the Global Real Estate Sustainability Benchmark that is used to rate companies (i.e., aggregation of assets not just single buildings but portfolios), has also continued to have an incredible uptake of clientele companies joining GRESB and submitting to their voluntary benchmarking and scoring. In 2020, over 1,200 international companies submitted to GRESB and, with yesterday’s filing deadline for 2021, it is likely that over 1,600 companies will be submitting in 2021. Each of these companies have multiple assets and, as such, represent a growing footprint of square footage willing and interested in participating in measurement, verification and benchmarking.

The panelists also discussed that within their companies, they are voluntarily reporting their results publicly and are having these results verified by external reporting. These ESG and sustainability reports have been published and other public companies are following their lead and also publishing their results (e.g., over 85% of Fortune 500 companies publish their results).

All panelists have issued green bonds and anticipate likely future issuances. Both Boston Properties and Prologis have issued over $1B of green bonds each and continue to expand the depth and breadth of their investments. Federal Realty has also used their green bond proceeds to broaden and deepen their LEED certifications and other sustainability programs within the portfolio of over 110 properties in the US. Green bond dollars have been used to further other ESG and sustainability initiatives and help expand building certifications (LEED and BREAM as well as WELL and Fitwel) within each of their respective portfolios and enable initiatives to be pushed further and faster.

Of particular interest is not only the scale that they are issuing bonds but also that these bonds are being priced with a discount of 5-15 basis points cheaper than non green bonds – meaning, it is cheaper to borrow this type of money for green usage and investment than for non green usage. Over a few billion dollars, these basis points may sound small but these savings are NOT…think millions of dollars of savings each year and over the life of the bond. Real money being invested in green investments at a cheaper rate!

During 2021, ESG efforts at these companies will be focusing on supply chain sustainability metrics, use of materials, embodied carbon, renewables including on-site solar energy generations, energy efficiency, the Task Force on Climate Disclosure, Scope 3 emissions and diversity, equity and inclusion.

While not all tenants everywhere are asking about green features in their buildings, more and more are interested in them in the panelists’ views and to address this interest, these companies continue to offer more and more green attributes and features within their respective portfolios. Moreover, with return to work post pandemic being somewhat imminent, the panelists also saw the role of the Chief Sustainability Officer being expanded in most cases to include some level of involvement or oversight with respect to health and safety and return to work – think elevator policy, green cleaning and chemicals, plexiglass and social distancing, air conditioning and fresh air intake and MERV filtering of air (13 or higher to trap 99% of air borne particulate matter), etc.

Our panelists have also tied their revolving credit facility metrics on rate to various ESG metrics and are also tying executive compensation to various ESG and sustainability metrics. As we have reported previously, as more public companies tie compensation to reaching various ESG goals, the uptake will continue to build until this approach is not viewed as novel but, rather, common place, as others will likely begin to follow this lead or be viewed by investors as not paying attention or caring.

We also heard the Roger Platt-ism of a “self-licking ice cream cone” being used to describe the interplay of measuring, verification and outcome in the green space across various segments (longer explanation need than we have room for but ring me and we can discuss) – as well as describing the ESG space as being a lot of Plan, Do, Check and Act!

Triple Bottom Line – with over 23 countries represented and a Strategic Framework being created and issued by the World Bank in 2008, green bond issuances started slow and steady but have seen a massive uptake in interest and investment in the last 6 years. The bonds and financings have been used to support and encourage environmentally friendly projects in the US and internationally (including required covenants to maintain these projects on a go forward basis). In 2020 over $269 Billion in green bonds were issued, noting that the pandemic did little to dampen enthusiasm for this green type of investment vehicle. In Q-1 of 2021 we saw over $106.86 Billion of green bond issuances, a bit of a harbinger of a super green bond year. All in all there have been approximately $1 Trillion of green bond issuances cumulatively with an annual year of year uptake of 60% growth since 2015. Current estimates have cumulative totals of green bond issuances at over $2.36 Trillion dollars by the end of 2023!

As such, this author’s view is that green bonds as a financing source is NOT a passing fad, rather they are a viable source of debt capital and continuing to build in interest and issuances both nationally and internationally and will continue to do so.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, Jolie-Anne S. Ansley, David Amerikaner, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

P.S. Our panelists divulged that their favorite podcasts these days include “How things Work”, “The Hidden Brain”, “How to Save a Planet”, “The Energy Gang” and “Big Switch” – check it out! Also, if you are looking for a super children’s book to help explain climate change to your kids, check out “Earth’s Climate Heroes” – A+

June 23, 2021June 23, 2021 by Brad A. Molotsky

NYC enacts Racial Equity Reporting for Many Land Use Projects

On June 17, 2021 the New York City Council passed Intro – 1572-B, legislation which requires “racial equity reports” for certain land-use actions. According to Langan and the ordinance, racial equity reports will be standalone, project-specific, publicly-available documents that provide supplemental information for use during the Uniform Land Use Review Procedure (“ULURP”) process.

Starting June 1, 2022, a racial equity report will be required for applications involving all of the following actions:

Adopting citywide zoning text amendments that affect 5 (or more) community districts;
Designating historic districts that affect 4 (or more) city blocks;
Acquiring or disposing of (selling) city-owned land for a project containing at least 50,000 square feet of floor area;
Increasing permitted residential floor area by at least 50,000 square feet;
Increasing permitted non-residential floor area by at least 200,000 square feet;
Decreasing permitted floor area or number of housing units on at least four contiguous city blocks;
Changing the permitted floor area (for any use) in a manufacturing district; and
Changing use regulations in a manufacturing district with a project containing at least 100,000 square feet of floor area.

The New York City Department of City Planning (“DCP”) and Department of Housing Preservation and Development (“HPD”) will have administrative oversight of the racial equity reports and have been charged with aggregating the data and developing detailed guidance for further report preparation.

According to the Real Deal, the measure requires the DCP and the HPD to create a database (called the “equitable development data tool” (“EDD”)) with current and historic information focusing on neighborhood demographics, affordability and displacement risk. The EDD will include a 20 year lookback, disaggregated by race origin, aimed at spotting trends in the data over time.

For residential developments, reporting would include proposed rents or sales prices and the household incomes as well as listing the number of government-regulated affordable units at different income levels.

For nonresidential projects, reporting would include the “projected number of jobs in each sector or occupation, median wage levels of such jobs based on the most recently available quarterly census data on employment and wages or other publicly available data, and the racial and ethnic composition and educational attainment of the workforce for the projected sectors of such jobs.”

It’s easy to provide this information for projects with government regulatory agreements; not so for areawide re-zonings and private applicants, where many outcomes are possible. By acknowledging the “worst” possible outcomes (market-rate housing! non-union jobs!), the reports will tee up the opposition’s demands.

Triple Bottom Line – often California leads policy and mandates on various social issues, in this instance, New York City has taken action and mandated racial equity reporting in various land use developments for new projects on a go forward basis. This action will require the aggregation of critical data in order to make land use decisions which will likely result in a different, more informed decision making process that takes into account racial disparity and equity. A big step in the process and one which many towns and municipalities in the US will look to in their own decision making. Too early to call on overall success of the initiative or what will occur, but in my view, a big important step in enabling more informed decisions, that this commentator believes will be the beginning of a more national move in many cities to similar reporting and requirements.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, David Amerikaner, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

June 16, 2021 by Drew D. Salvest

Bank of England explores impact of climate change on the UK banking sector

With climate change an increasing political and policy concern, the Bank of England (BoE) is making moves to ensure UK banks and insurers measure and understand their exposure to the risks from climate change and adjust their business models and strategies in response. On 8 June 2021, the BoE published “Climate Biennial Exploratory Scenario: Financial risks from Climate Change” (CBES), identifying climate change as a financial risk with a view to exploring its impact on the banking and insurance sectors. It is the first time an exploratory climate-related stress test of UK banks and insurers has been undertaken.

The Regulatory Agenda

In 2021, banks face a number of regulatory and supervisory deadlines. The UK Prudential Regulatory Authority has set a 2021 deadline for UK banks (and insurers) to have strategies and business models to manage climate risks. The European Central Bank will require banks at the Banking Union to undertake a self-assessment of their compliance with its guidance on climate risks in 2021 before conducting a review in 2022. In the US, the New York State Department of Financial Services has set out climate-related standards for banks under its supervision. Rating agencies are also factoring in climate change to their assessments.

In this post we will provide an overview of the CBES and its implications for banks and borrowers.

CBES

The CBES participants are made up of the largest UK banking groups, building societies and insurers. Participants have until October 2021 to make initial submissions, with the results expected to be published in May 2022. The results will be published on a combined basis to reflect systemic risk.

The CBES is intended to be a learning exercise for both the BoE and participants in measuring climate risks based on different policy pathways that could be taken by the government to achieve its aim of net zero greenhouse gas emissions by 2050. The CBES states the exercise will not be used to set capital requirements, however it may inform future policy.

The three stated aims of the CBES are:

measure the financial exposures of participants to climate-related risks;
understand the challenges to participants’ business models from climate-related risks and the implications; and
assist participants in improving management of climate-related risks.

The CBES asks participants to look at three climate scenarios – early policy action (with transition beginning in 2021), late policy action (where transition begins in 2031) and no additional policy action. Each scenario has different outcomes in terms of global temperatures and the economy over the period 2021-2050, a significantly longer time period than the traditional planning period for financial institutions. Participants will measure the impact of the three different scenarios on their year-end 2020 balance sheets.

Within each scenario, two key risks from climate change are identified. “Transition risks” are risks that arise as the economy moves to net zero emissions, such as carbon taxes and changes in technology, regulation and policy that could create credit exposures for banks and other lenders. UK financial institutions are exposed to a wide range of sectors worldwide, many of which will be affected by climate change and the transition to net zero. In addition, reputational risk could arise from shifting attitudes of customers and other stakeholders towards the UK banks response to climate change.

“Physical risks” are the risks that are likely to occur as a result of climate change if no further policy action is taken by the government, such as extreme weather events and rising sea levels. Physical risks could result in large financial losses, reducing asset values and the value of investments held by banks. Extreme weather events are likely to impact businesses, affecting their ability to repay loans and damaging the value of assets.

Opportunities

There are a range of opportunities that banks, borrowers and other lenders are considering, particularly in the green finance space that we have previously covered in posts here and here. It is likely that banks and borrowers will take advantage of the opportunities which arise in the transition to a greener and more sustainable economy, as illustrated by the inflows to green investment products and the growth in the green and sustainability-linked bond and loan markets. With banks looking at how their business models will be impacted by various climate change policies, borrowers will also need to consider how their business practices may need to change in light of the changes to the financing options that might be available.

If you have any questions about this post, please contact Drew D. Salvest, Natalie A. Stewart, Rebecca Green any of the attorneys in our Banking and Finance Industry Group or the attorney in the firm with whom you in regular contact.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, please contact Brad A. Molotsky, David Amerikaner, Nanette Heide, Darrick Mix, Vijay Bange, Steve Nichol, or the attorney in the firm with whom you are regularly in contact.

June 13, 2021 by Brad A. Molotsky

ESG: Will Creating C-Suite Pay Linkages with Diversity, Equity and Inclusion Goal Achievement drive behavior change?

Earlier this year we saw some large market movers tie certain of their credit facility metrics to achieving various ESG goals regarding gender and diversity goals. This appears to be gaining some traction as more companies who’s facilities are renewing are seeing some pressure on this front (i.e., cheaper credit/borrowing rates for achievement of ESG goals).

In addition to borrowing rates now starting to bear some correlation to ESG goal achievement, some companies are now tying executive compensation to specific ESG goal achievement as well.

As recently reported by Emily Glazer and Theo Francis in the Wall Street Journal, Starbucks (increase in managerial diversity), McDonald’s (increase in minority and racial minority leadership roles), Nike (increase in racial and gender diversity) have announced actual compensation based targets that will affect CEO and sr. officer pay depending upon specific ESG DEI (diversity, equity and inclusion) goal achievement. While some would argue this is in relation to increased Board, shareholder and stakeholder engagement and pressure on these companies, others would respond that the companies were already moving in the direction of more causal linkage of ESG goals and compensation.

Nike – setting a goal of 45% of global leadership positions to be held by women, up from 40% in 2025; and 30% of US directors to be members of a racial and ethnic minority, up from 27%

McDonald’s – setting a target of 15% of top executive bonuses being tied to human capital measures including improving the number of women and minorities in the company i.e., 45% of international senior directors and higher managers should be women and 35% in the US are to be held by racial and ethnic minorities, up from 37% and 29% according to the reporters.

Looking back at corporate disclosures from 2020, it was reported that 165 companies or 33% of the S&P 500 companies had disclosed using some level of diversity metric in their compensation structure. This 33% is up from 2020 where Glass Lewis reported that 20 companies had specific DEI metrics tied to compensation and up from 2018 where only 10 had any such metrics.

As these metrics continue to evolve, my sense is better and more transparent measurements will emerge and begin to be assured by external audit type companies to confirm and verify goal achievement. How one retains a worker, recruits a worker and how diverse their supply chain is subject to interpretation, and, as such, clarifying what is being measured and by whom will take some work but our sense is this will be clarified in the next 1-3 years.

“There is a growing body of evidence that shows that companies that have diverse teams outperform companies that are not diverse, whether they’re looking at operating performance or financial performance or innovation“, according to Simiso Nzima, head of corporate governance for California Public Employees’ Retirement Systems as identified in the WSJ article.

Triple Bottom Line – Will putting their proverbial money with their disclosure mouths have been drive additional change? I tend to believe that directly incenting behavior with targeted bonus compensation will, and does, drive specific behavioral outcomes. In this case linking specific bonus targets to ESG DEI outcome achievement will create additional focus and precision in the company’s adhering to and achieving these DEI goals. As such, my sense is that as more and more companies adopt these practices, ISS and Glass Lewis will consider if these metrics should be “matter of course” and as such if a company does NOT have it as a compensation metric it will run the risk of being singled out as poor performer.

Thus, one’s ESG diversity and inclusion goals will actually begin to have a direct fiscal impact on a company’s compensation to its senior officers which is highly likely to get additional or continued focus by these senior officers to insure achievement of these goals. As other S&P 500 corporations begin to include DEI metrics as being tied to compensation, this will also put additional pressure on other public and non public companies to begin measuring and then reporting on DEI type outcomes.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Darrick Mix, David Amerikaner, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

June 7, 2021 by Brad A. Molotsky

The Network for Greening the Financing System (NGFS) – 90 Worldwide Central Banks and Growing – The Advent of Pricing Carbon into Lending Rates

According to a recent Wall Street Journal Article by Simon Clark, this past December saw the US Federal Reserve join various international central banks and supervisors in the “Network for Greening the Financing System” (the “NGFS”), an international assembly of central banks who set monetary policy around the globe. The NGFS includes central banks and regulators of major European countries as well as Japan, China and Russia. Started in 2007 with 8 members, the NGFS now has over 90 central banks and regulators in its membership and is planning to meet later this month (June) to discuss further policy changes in the climate and risk arena.

Central banks throughout the world are quietly, but more publicly, getting much more involved in climate change risk analysis when setting monetary policy. Some of the central banks are even taking on what some would consider activist stances on the environment and risk. Formerly behind the scenes discussions are evolving into various central banks stating publicly that climate change is a current fiscal and economic risk and, that it is time to take into account these risks when setting monetary policy.

This pivot is already finding its way into monetary policy that will impact US companies doing business overseas, as banks like the Bank of England, now specifically include environmental sustainability as well as price stability in their monetary policy. This policy change will result in US based companies doing business in the UK being impacted by these types of policy changes as it will affect their borrowing rates overseas. For instance, earlier this year the UK Treasury chief changed the Bank of England’s interest rate setting for its committee, to require inclusion of strong sustainable and balanced growth that is also environmentally sustainable as part of its pricing review.

In addition to the Bank of England, the European Central Bank which overseas monetary policy in the EU, has also publicly stated that climate change is within their purview and they will begin taking climate change into consideration when setting monetary rates.

As noted in the Wall Street Journal article, the Bank of France has also begun collecting data on the potential costs of climate change, having found that the cost of insurance claims due to flood and drought impacts are likely to rise by as much as 6x in various French provinces by 2050.

Some of the central banks that are members of the NGFS have adjusted policy based on climate considerations, including higher capital charges for lending to fossil-fuel based companies and including stress testing for climate risk and rising temperatures in their portfolio analysis.

The NGFS’ beginning of increasing of interest rates to address climate concerns, comes at a time where the inflow of investor capital into consumer products, green bonds and stocks of companies focusing more on ESG and products that support ESG and sustainability efforts is at an all-time high and exponentially continuing to show signs of a stable base of investors looking for climate considered attributes.

According to Mr. Simon, the risks being explored include loss of loans or a decline in asset value given locations at or near waterfronts as well as risk adjusting properties in areas that are and have been the subject of wild fire risks. The central banks are also considering charging higher interest rates to lenders that pledge carbon intensive assets as collateral. Meaning, those member banks who continue to lend to carbon intensive asset classes will see higher interest rates that they will pass along to their more carbon intensive customers seeking to borrow these funds

Some of the central banks are also considering whether to require their member banks to set aside additional capital for loans to fossil-fuel companies and less to those in renewable arenas. This would likely translate into loans being made to more carbon intensive user/borrowers having to have a higher loan to value for their assets than their less carbon intensive competitors; resulting in more lending capacity for less carbon use intensive borrowers than their carbon consuming rivals.

Historically, the central banks have always avoided, at least publicly, attempting to influence lending decisions of their member banks where the decisions would have political implications regarding whether climate change is a man-made event. This shift at the NGFS in taking a more public stance, would effectively shift direction for their central bank members and put them directly into the cross hairs of the political discussion of how and what to do about climate change and whether climate change is “man-made”.

Triple Bottom Line – as the NFSG continues to garner more members and, as these members, including the US Fed, start to really include carbon intensity in their pricing decisions for lending, companies that borrow funds internationally will begin to see the impact of their carbon use and will likely face increased risk and higher borrowing costs depending upon how intensive their impact is on the environment. Thus, one’s carbon footprint will actually begin to have a fiscal impact to their operations which will likely create additional disclosure around this risk and attendant result.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, David Amerikaner, Nanette Heide, Darrick Mix, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

May 11, 2021 by Drew D. Salvest

Sustainability-Linked Private Placements

In this post we will be looking at sustainability-linked loan principles and their application to a recent sustainability-linked private placement by Trafigura Funding S.A. (“Trafigura”), a subsidiary of Trafigura Group Pte. Ltd., a market leader in the global commodities industry. Trafigura’s private placement of $203.5 million of Senior Guaranteed Sustainability-Linked Notes is believed to be the largest sustainability-linked financing on record in the US Private Placement market to date. Duane Morris previously represented Trafigura in its 2020 private placement of Senior Guaranteed Notes to institutional investors in the United States.

Industry Principles

The two primary sustainability products in the loan market are green loans and sustainability-linked loans. The Loan Syndications and Trading Association (“LSTA”), Loan Market Association (“LMA”) and Asia Pacific Loan Market Association (“APLMA”) originally established standards for these products (called the “Green Loan Principles” (“GLP”) and “Sustainability Linked Loan Principles” (“SLLP”)) in 2018 and 2019 respectively. On 5 May 2020 the LSTA, LMA and APLMA published guidelines that outline considerations for the market in structuring such transactions, as detailed in our alert here.

The key element of a green loan is that the proceeds are used for “green” purposes. A sustainability-linked loan can be any type of debt financing where a company is economically incentivized to achieve sustainability objectives. Unlike a green loan, the proceeds of a sustainability-linked loan can be used for general corporate purposes. The objectives are measured using sustainability performance targets (“SPTs”) that include key performance indicators (“KPIs”) and other metrics to measure improvement. The SLLP guidelines provide examples of SPTs with categories including energy efficiency, greenhouse gas emissions, renewable energy, water consumption and biodiversity.

The GLP and SLLP guidelines are increasingly being applied more widely than the loan market, with private placement issuers utilizing the guidelines for green or sustainable private placements. These products are not only intended for “green” companies; any company can access the green or sustainability loan market provided the transaction is structured in the right way. This means a broad range of industries can utilize the guidelines in a transaction provided there is an appropriate commitment to green projects or sustainability objectives.

Components of a Sustainability-Linked Private Placement

The SLLP guidelines outline four components of a sustainability-linked transaction that we will illustrate the practical application of with reference to the recent sustainability-linked private placement by Trafigura. These components are:

1. Relationship to the company’s overall sustainability strategy
2. Target Setting
3. Reporting
4. Review

1. Relationship to the Company’s Overall Sustainability Strategy

As sustainability-linked private placements are intended to improve a company’s existing sustainability strategy, there needs to be 1) a sustainability strategy in place and 2) a link between the sustainability strategy and the SPTs the company is seeking to achieve. Trafigura selected three KPIs in relation to its operations: reducing greenhouse gas emissions, developing its renewable energy portfolio and bringing its procurement program in line with international sustainability standards.

The SLLT guidelines also encourage companies to disclose sustainability standards or certifications to which they are seeking to conform. For example, Trafigura outlined its intention for full alignment of the business with the ISO standard 20400:2017, an international standard for sustainable procurement.

2. Target Setting

The SPTs need to be “ambitious and meaningful” to the company’s business. For Trafigura, the KPI for reducing greenhouse gas emissions is the same target as set in the company’s sustainability-linked revolving credit facility that closed earlier this year. This KPI will measure Trafigura’s performance in reducing scope one and two emissions by 30% by 2023 (compared to 2020 levels) as set out in its 2020 Responsibility Report.

The SLLP guidelines suggest SPTs should be determined using internal or external specialists so that they are “fit for purpose” with respect to the company’s business and industry. In order to set the KPI aligning Trafigura’s procurement program with international standards, an independent sustainability verifier, ERM Certification and Verification Services (“ERM CVS”), conducted a gap assessment of Trafigura’s management system framework against the ISO standards.

The SPTs and calculation methodologies are communicated between the company and the investors. Price incentives are linked to the performance of the company in achieving the pre-determined SPTs. These price incentives could be an upwards interest rate adjustment if an SPT is not met, an downward interest rate adjustment if SPTs are met, or a two-way pricing structure utilizing upward and downward interest rate adjustments depending on performance.

The Trafigura sustainability-linked private placement is structured with only an upward interest rate adjustment if an SPT is not met. The interest rate adjustment is structured in this way to work around any potential ERISA Final Rule issue, as a downwards adjustment in interest rate based on meeting the targets could be interpreted as a sacrifice of return on investment for a non-pecuniary goal. Although the Department of Labor has subsequently issued a notice it will not enforce the Final Rule, until further guidance is published an ERISA fiduciary must only consider pecuniary factors when making investments.

3. Reporting

A company will need to report up-to-date data in relation to SPTs. The SLLP guidelines suggest reporting should be on an annual basis at a minimum. Companies and investors may seek external opinions and reports with respect to methodologies and assumptions used in reporting.

In Trafigura, ERM CVS will undertake an assessment of the KPI performance on the relevant assessment date each year. The results will form the basis of the KPI report, produced and verified by ERM CVS which details performance with respect to the SPTs. The report is attached to a compliance certificate signed by Trafigura and delivered to the investors each year, stating whether SPTs have been achieved for that period.

4. Review

The SLLP guidelines suggest external review and verification is to be negotiated on a transaction by transaction basis between the company and the investors. External review is strongly recommended where information regarding SPTs is not publicly available. The SLLP guidelines strongly recommend verification by an auditor, environmental consultant or rating agency. Trafigura engaged ERM CVS to review and report on KPIs and SPT compliance for each relevant period.

Although sustainability-linked products originate in the loan market, particularly among European lenders, interest from issuers and investors in the capital markets is increasing as ESG issues move back up the public agenda as the impact of COVID-19 begins to recede. Moreover, application of the SLLP guidelines allow issuers across a broad range of industries to access capital from investors who are demonstrating growing support for businesses that incorporate sustainability into their business operations. Trafigura’s recent US private placement is an indication that US institutional investors are also supporting issuers committing to sustainability targets.

If you have any questions about this post, please contact Drew D. Salvest, Natalie A. Stewart, Rebecca Green any of the attorneys in our Banking and Finance Industry Group or the attorney in the firm with whom you in regular contact.

May 10, 2021May 10, 2021 by David Amerikaner

Autonomous Vehicle Legislation: State Updates

Note: This post was drafted by Ryan J. Stevens and appears on the Duane Morris Government Strategies blog.

Autonomous vehicles have automated driving systems that allow for self-driving, with little or no human input. While fully automated vehicles are not readily available at this point, lawmakers are already taking action with a myriad of autonomous vehicle legislation. As we have seen with E-Bikes, drones, and personal delivery devices, government regulation is not far behind the new technology.

At least 29 states have already enacted various autonomous vehicle legislation.

Connecticut
One piece of autonomous vehicle legislation introduced by Connecticut lawmakers is H.B. 6486. The bill would require the Connecticut Department of Transportation to develop a program to test and operate vehicles equipped with automated driving systems. It would also eliminate the autonomous vehicle testing pilot program (which never started).

Generally, the bill would require the Department of Transportation to adopt regulations that include both state and federal laws and national best practices on testing. Also, it would set application requirements for owners of ADS-equipped vehicles to seek approval to either test or operate their autonomous vehicles on state roads. Further, the bill would require ADS-equipped vehicles to comply with federal safety standards, be registered, and be adequately insured.

The bill would define a fully autonomous vehicle as an “ADS-equipped vehicle” with an automated driving system designed to function without an operator and classified as level four or level five by SAE. The bill would further define “ADS” (automated driving system) as the hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis.

Florida
Florida lawmakers recently passed HB 1289 related to autonomous vehicles. Under the bill, a low-speed autonomous delivery vehicle would be allowed to operate on streets or roads with speed limits under 35 miles-per-hour or less. However, the vehicle may operate between 35 and 45 miles per hour under certain exceptions.

The autonomous vehicle legislation further requires low-speed autonomous delivery vehicles to be equipped with headlamps, stop lamps, turn signal lamps, taillamps, reflex reflectors, and vehicle identification numbers. The bill also requires such vehicles to be covered by an automobile insurance policy. It allows counties and municipalities to prohibit low-speed vehicles on any road under its jurisdiction if necessary in the interest of public safety.

The bill defines a “low-speed autonomous delivery vehicle” as a fully autonomous vehicle not designed for or capable of human occupancy.

Massachusetts
H. 3475, introduced by lawmakers this year, would require autonomous vehicles registered in Massachusetts to register in the state to continue to meet federal standards and regulations for a motor vehicle. The autonomous vehicle legislation stipulates that such vehicles shall not engage in interstate commerce or transport eight or more people or goods for hire unless a human operator is present in the autonomous vehicle. They can monitor the performance of the vehicle and intervene if required.

Nevada
Nevada became the first state to authorize the operation of automated vehicles in 2011 via Assembly Bill 511. In the 2021 legislative session, the Nevada Assembly passed AB 412, which relates to neighborhood occupantless vehicles, defined as low-speed vehicles not designed, intended, or marketed for human occupancy.

Under the bill, neighborhood occupantless vehicles would be allowed to operate on a roadway with a speed limit of greater than 35 miles per hour but no more than 45 miles per hour.

New Jersey
New Jersey lawmakers passed Assembly Joint Resolution 164 in 2019, creating the New Jersey Advanced Autonomous Vehicle Task Force. The Task Force was created to conduct a study of advanced autonomous vehicles and make recommendations for laws and rules.

The resolution called for the Task Force to issue a report to the Governor and the legislature within 180 days of the Task Force’s initial meeting. The report was to include:

an evaluation of existing state laws that may impede the testing and operation of autonomous vehicles on public roads in New Jersey,
an evaluation of existing state and federal laws related to autonomous vehicles as it relates to licensing, registration, insurance, liability, law enforcement, and
accident reporting, land use, road and infrastructure design, public transit, and workforce changes.

The Task Force was also required to make recommendations for implementing pilot programs for autonomous vehicles on public roads and to evaluate existing legislation and regulations in other states concerning the issue.

The Task Force created by AJR 164 issued its report in 2020, which included the recommendation to establish a two-step permitting process to allow companies to test and then employ HAVs (highly autonomous vehicles) on public roadways in the Garden State. The Task Force also recommended the New Jersey Motor Vehicle Commission as the lead agency responsible for approving and overseeing both testing and deploying HAVs in the state and recommended requiring all testing on public roadways be conducted with a safety driver present in all vehicles.

On the legislative side, A1189 would establish a fully autonomous vehicle pilot program. The bill would require the New Jersey Motor Vehicle Commission, in consultation with the state Department of Transportation, to establish the New Jersey Fully Autonomous Vehicle Pilot Program, allowing for autonomous vehicle testers to operate fully autonomous vehicles on New Jersey highways. The pilot program would last one year under the legislation.

Texas
Texas previously enacted autonomous vehicle legislation in 2017, allowing for the testing and deployment of automated vehicles on public roads.

Lawmakers in Texas introduced HB 3026 in the current legislative session. Under the bill, an autonomous vehicle designed to operate exclusively by the automated driving system for all trips is not subject to motor vehicle equipment laws or regulations in Texas that relate to or support motor vehicle operation by a human driver and are not pertinent for an automated driving system.

Further, if a vehicle safety inspection is required to operate an autonomous vehicle, the vehicle must automatically pass inspection with respect to any equipment covered by the bill’s exemption or any equipment not subject to inspection under Texas law.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, David Amerikaner, Nanette Heide, Darrick Mix, Michael Schwamm, or the attorney in the firm with whom you are regularly in contact.