Tag: anti-ESG legislation
Are you ready for anti-anti-ESG?
You all remember the reams of anti-ESG bills that poured out of some of the states, not to mention the U.S. House? According to Reuters, some “states have unleashed a policy push to punish Wall Street for taking stances on gun control, climate change, diversity and other social issues, in a warning for companies that have waded in to fractious social debates.” A 2022 Reuters analysis found that there were at least 44 bills or new laws in 17 states “penalizing such company policies, compared with roughly a dozen such measures in 2021.” (See this PubCo post.) In 2023, an article in Institutional Investor reported, 198 pieces of legislation were introduced, 23 laws passed and 6 resolutions adopted. And in 2024, the article reports, state legislators wrote 161 bills and resolutions in 28 states for consideration, with six bills passed so far. (See this PubCo post.) Recently, however, ESG proponents have begun to employ a more aggressive strategy regarding anti-ESG legislation. They’re now playing in the same sandbox as the anti-ESG groups, pursuing anti-anti-ESG litigation—premised in part on…wait for it…the First Amendment, one of the favored legal strategies, of course, of the anti-ESG groups. What’s good for the goose is good for the gander? What goes around comes around? As the call, so the echo? A couple of cases may illustrate the phenomenon. Will we see more?
What’s happening with anti-ESG legislation?
Reams of anti-ESG legislation have been proposed recently at both the state and federal levels. This article from Institutional Investor updates us on the status of state anti-ESG legislative efforts in 2024. And, following “ESG month” in the U.S. House (see this PubCo post) and the advancement of seven pieces of anti-ESG legislation to the House floor, Public Citizen engaged pollsters Lake Research Partners to conduct a survey of voters’ views of anti-ESG bills and the policies underlying them, as discussed in this article on the Harvard Law School Forum on Corporate Governance.
Tackling ESG backlash
As ESG backlash escalated this past year, companies have often felt caught between Scylla and Charybdis, struggling to navigate between the company’s commitment to ESG issues that the company believes will contribute to its long-term performance and benefit investors and other stakeholders, and the opposition that has arisen to the corporate focus on ESG, particularly social and environmental matters. The Conference Board, however, suggests that we look at it differently: “Despite the negative connotations, ESG backlash can be a clarifying moment for companies. It can prompt companies to reevaluate their ESG strategy, priorities, and commitments,” providing an “opportunity to clarify their ESG strategy and communications.” In a recent TCB survey, half the companies indicated that they had experienced some form of ESG backlash, whether against their industry (26%), more generally (e.g., their state) (20%) or against the company specifically (18%). In addition, 61% thought that ESG backlash would “stay the same or increase over the next two years.” TCB posits that the increase will be driven largely by “emotionally charged topics, such as hot-button social issues and the transition to more sustainable forms of energy that raises fear of job losses.” With that in mind, this paper from TCB attempts to provide some analysis of the nature of ESG backlash and guidance on how companies can address it.
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