On March 21, 2022, a divided U.S. Securities and Exchange Commission (SEC) proposed enhanced and standardized climate-related disclosure rules to require disclosure of climate-related information in registration statements, annual reports, and the audited financial statements filed with the SEC, by both domestic registrants and foreign private issuers. This client alert summarizes the proposed amendments and disclosure requirements. The SEC will seek comments to the proposed rule until at least May 20, 2022.1
Disclosure Requirements
New "Climate-Related Disclosure" Section
Under the proposed rules, the following climate-related disclosures would be required in a separately captioned "Climate-Related Disclosure" section, except for the information required in the notes to the financial statements. The information under this section could be incorporated by reference from other parts of the disclosure document (e.g., from risk factors, business, management's discussion and analysis, or the financial statements) or from other filed or furnished reports, as long as the registrant satisfies the general incorporation by reference requirements. Additionally, any forward-looking statements required under these proposed rules would be covered by the Private Securities Litigation Reform Act (PSLRA) safe harbor, subject to customary exceptions (e.g., IPO registration statements and SEC enforcement action). A short summary of the proposed disclosure requirements is bulleted below.
New Financial Statement Disclosure
The proposed rules also provide for disclosure of disaggregated climate-related metrics in a separate note to the financial statements. Since these metrics would be included in audited financial statements, they would be included in the scope of any required audit of the financial statements and within the scope of the registrant's internal control over financial reporting. The metrics required would be as follows:
Registrants would also be required to disclose whether the estimates and assumptions used to produce the consolidated financial statements were impacted by exposures to risks and uncertainties associated with, or known impacts from, climate-related events or transition risks—and if so, provide a qualitative description of how such events have impacted the development of the estimates and assumptions used by the registrant in the preparation of such financial statements.
Attestation of Scope 1 and Scope 2 Emissions
Large accelerated filers or accelerated filers would be required to obtain limited assurance9 of their GHG emissions in fiscal years 2 and 3 after the date by which they need to begin providing climate-related disclosures (see the Compliance Timeline section, below), and reasonable assurance10 in fiscal year 4 and beyond. The proposed rules provide that assurance would be required on the following schedule, assuming the proposed rules are adopted with an effective date before December 31, 2022 and the registrant has a December 31 fiscal year-end:
Filer Type | Scopes 1 and 2 GHG Disclosure Compliance Date | Limited Assurance | Reasonable Assurance |
Accelerated Filer | Fiscal year 2024 (filed in 2025) | Fiscal year 2025 (filed in 2026) | Fiscal year 2027 (filed in 2028) |
Large Accelerated Filer | Fiscal year 2023 (filed in 2024) | Fiscal year 2024 (filed in 2025) | Fiscal year 2026 (filed in 2027) |
Compliance Timeline
Large accelerated filers may need to have processes in place to comply with the proposed rules starting as early as January 2023, while other filers are given more time before their compliance date. The proposed rules provide the table below summarizing the proposed compliance dates for climate-related disclosures, assuming the proposed rules are adopted effective December 2022, and a December 31 fiscal year-end.
Registrant Type | Disclosure Compliance Date | Financial Statement Metrics Audit Compliance Date | |
All proposed disclosures, including GHG emissions metrics: Scope 1, Scope 2, and associated intensity metric, but excluding Scope 3 | GHG emissions metrics: Scope 3 and associated intensity metric | ||
Large Accelerated Filer | Fiscal year 2023 (filed in 2024) | Fiscal year 2024 (filed in 2025) | |
Accelerated Filer and Non-Accelerated Filer | Fiscal year 2024 (filed in 2025) | Fiscal year 2025 (filed in 2026) | Same as disclosure compliance date |
Smaller Reporting Company | Fiscal year 2025 (filed in 2026) | Exempted |
What to Do Now?
These proposed rules are comprehensive and detailed. They are intended to encourage consistent, comparable, and reliable disclosure of climate-related information in companies' registration statements, annual reports, and financial statements. Registrants should begin to familiarize themselves with the proposed rules, participate in the comment process if they desire, and begin to prepare for the potential disclosure requirements and the implementation of the governance and operational systems necessary to satisfy them. Given the substantial effort that would be needed to comply with these disclosure requirements if adopted, companies can prepare for these proposed climate-related disclosure requirements by reviewing climate-related oversight responsibilities, data collection and review, climate-risk analyses, strategic plans, and climate-related goals and actions.
Whether or not adopted in this form, the proposed rules are a further indication of the growing importance of environmental, social, and governance (ESG) precepts in today's economy, and the expanding market opportunities for companies that embrace a climate-oriented perspective in the conduct of their business.
We expect that companies of all sizes and across all industries will have questions as they begin to familiarize themselves with the rules and the potentially far-reaching implications for their businesses. For more information on the proposed climate-related disclosure rules or any related matter, please contact any member of the firm's public company representation or sustainability and decarbonization practices.
[1] The proposed rules, long anticipated, follow previous SEC guidance regarding disclosure related to climate change from 2010, an SEC request for public input on climate change disclosure from early 2021 to which thousands of comments were submitted, and a series of individual comment letters and follow-up letters sent by the SEC’s Division of Corporation Finance to public companies in late 2021 and early 2022.
[2] Physical risks include both acute and chronic risks. Acute risks are event-driven risks like extreme weather events. Chronic risks are risks that result from longer term weather patterns and related effects.
[3] Transition risks include such risks as increased costs attributable to climate-related changes in law or policy, reduced market demand for carbon-intensive products, changes in consumer behavior, competitive pressures associated with adoption of new technology, the devaluation or abandonment of assets, or risk of legal liability and litigation defense costs.
[4] The proposed rules do not define these time periods. Registrants must describe how they define short-, medium-, and long-term horizons, including how they take into account or reassess the expected useful life of assets, and for planning processes and goals.
[5] E.g., energy usage, water usage, conservation or ecosystem restoration, or revenues from low-carbon products.
[6] A transition plan is a registrant’s strategy and implementation plan to reduce climate-related risks.
[7] A carbon offset is an emissions reduction or removal of greenhouse gases (GHG) in a manner calculated and traced for the purpose of offsetting an entity’s GHG emissions. A renewable energy credit (REC) is a credit or certificate representing each purchased megawatt-hour of renewable electricity generated and delivered to a registrant’s power grid.
[8] Scenario analysis considers the impacts of certain temperature increases on business operations, such as temperature increases of no greater than 3⁰ C, 2⁰ C, or 1.5⁰ C above pre-industrial levels.
[9] Limited assurance is the level of assurance provided over a registrant’s interim financial statements, which primarily requires inquiries into factual assertions.
[10] Reasonable assurance is the level of assurance provided in an audit of a registrant’s audited consolidated financial statements and requires the assurance provider to obtain an understanding of the registrant’s internal controls.