On June 24, 2019, the Equator Principles Association announced the release of the draft text of the fourth revision of the Equator Principles. Known as EP4, this document includes a number of changes intended to address perceived shortcomings regarding the manner in which the current framework is applied to different countries and to enhance the focus on issues such as climate change. These changes reflect the evolving nature of transactional diligence with respect to environment, social and governance (ESG) issues.
ESG Transactional Diligence – The Basics
ESG diligence applies a set of standards, framework or criteria related to environmental issues such as energy efficiency, water usage and impacts on climate change; to social issues such as labor standards and indigenous peoples; and to governance issues such as executive pay, cybersecurity and internal controls. ESG diligence is often described as a mechanism for capital markets and investors to capture non-financial risk assessments or sustainable investment strategies, including potential reputational issues. More recently, it has been seen as a framework to understand potential value and performance of a target.
There are various drivers and goals that may motivate an ESG diligence effort. It may be a result of individual entities’ commitments or a result of membership in sustainability associations. ESG diligence is not static and these commitments may change over time. In addition, the existing frameworks and criteria continue to evolve. Further complicating ESG diligence, commitments to adhere to frameworks or criteria may be buried in loan agreements, limited partner agreements, corporate commitments in sustainability reports or may arise by virtue of membership in associations such as Equator Principles Association or Principles for Responsible Investments (PRI). Many of these commitments will need to be included as enforceable covenants in transaction documents.
Project Finance, Project-related Corporate Loans and Equator Principles
The Equator Principles (EP) are among the most commonly applied ESG criteria for project finance. In 2003, the World Bank Group’s International Finance Corporation (IFC) began to develop the EP to promote sustainable environmental and social performance and investment. EP may apply to member financial institutions in project finance, project-related corporate loans and bridge loans. As described by IFC, EP “is a risk management framework, adopted by many financial institutions, for determining, assessing and managing environmental and social risk in projects and is primarily intended to provide a minimum standard for due diligence and monitoring to support responsible decision making.” EP apply globally, including 96 financial institutions known as Equator Principle Financial Institutions (or EPFI) in 37 countries, covering a large percentage of projects worldwide.
EP distinguish between projects in “non-designated countries” and projects in “designated countries”. Projects covered by EP in “non-designated countries”, generally those with developing or emerging economies, require environmental and social impact assessments in accordance with the EP. An initial risk assessment is performed to categorize the project using the IFC environmental and social screening process. There are three categories:
- Category A are “[p]rojects with potential significant adverse social or environmental impacts that are diverse, irreversible or unprecedented;
- Category B are “[p]rojects with potential limited adverse social or environmental impacts that are few in number, generally site-specific, largely reversible and readily addressed through mitigation measures and
- Category C are “[p]rojects with minimal or no social or environmental impacts.”
Under EP, the EPFI must require its client to perform an Environmental and Social Assessment (Assessment) to the EPFI’s satisfaction. An illustrative list of social and environmental issues to be covered in the Assessment are included in an exhibit to the EP and there are guidance documents that describe in detail what the Assessment should cover.
The client of the EPFI must covenant in the financing documentation to comply with all host country environmental and social legal requirements. In addition, for Category A and (where applicable) Category B projects, the client must covenant in financing documents to: (i) comply with the Environmental and Social Management Plan and Equator Principle Action Plan; (ii) provide periodic compliance reports; and iii) where applicable, agree to a decommissioning plan.
For Category A and applicable Category B projects, the Assessment Documentation must include the following:
- an Environmental and Social Impact Assessment to be made available online
- For projects that will emit more than 100,000 tonnes of CO2 equivalent annually, an alternatives analysis
- an Environmental and Social Management Plan including an Equator Principles Action Plan where applicable standards are not met
- Stakeholder Engagement process
- Grievance Mechanism
- Review by an Independent Environmental and Social Consultant
Projects in “designated countries”—i.e., “those countries deemed to have robust environmental and social governance, legislation systems and institutional capacity designed to protect their people and the natural environment”—are not currently covered by EP. They are subject to review under the laws and regulations of the country where the project is constructed.
This bifurcation of applicability has led to harsh criticism by activists and non-governmental organizations (NGOs), such as Banktrack in particular. In November 2017, the Equator Principle Association announced that it had initiated internal discussion on four areas including: social impact and human rights, climate change, designated countries, and applicable standards and scope of applicability.
On June 24, 2019, the Equator Principles Association announced the release of the draft text of the fourth revision of the EP known as EP4. As revised, the distinction between reviews for projects in designated versus non-designated countries was retained. However, language was added that requires the EPFI to evaluate whether one or more of the IFC Performance Standards should be applied. Language regarding the assessment of human rights and climate change was added to Principle 1 regarding the initial risk assessment. For Category A and as applicable Category B projects globally, language was added to require the EPFI’s ESG diligence to include a review of how the project meets the EP. In addition, a climate change assessment will be required for Category A and applicable Category B projects.
Capital Markets and PRI
Unlike project financings, capital market ESG diligence is typically subject to many different standards or frameworks. For example, many investment banks, institutional investors and investment managers have developed their own programs. These entities may be limited partners in private equity firms and ESG diligence requirements could be included in side letters between the general partner and limited partner or in a limited partner agreement.
An important framework for investors is PRI, which was developed by investors in partnership with the United Nations Environment-Finance Initiative Partnership (UNEP) and the United Nations Global Compact. According to the PRI 2018 annual report, there are over 2000 signatories in 60 countries. PRI issued a due diligence questionnaire in November 2015 which is used often as a basis for ESG diligence. Due to the large variety of issues related to different sectors, industries and supply chains, PRI does not mandate formats or frameworks. Instead, signatories develop their own programs to meet PRI’s six principles.
Corporations and Sustainability
According to a report by Investor Responsible Research Center Institute (IRRC) and Sustainability Investments Institute (Si2) regarding the state of integrated and sustainability reporting in 2018, 78 percent of the S&P 500 issued a sustainability report. However, the actual level of sustainability commitments varies greatly. ESG diligence associated with corporations should take into account any public statements or commitments associated with sustainability as well as any commitments corporations may have made as members of sustainability associations.
Several years ago, diligence associated with corporate sustainability might have been addressed in an environmental assessment report. In many cases, this would suffice as greenhouse gas was the primary focus. More recently, ESG sustainability has evolved to cover social and governance issues as well as an expanded coverage of environmental issues. It is becoming more common for a separate ESG report to be prepared or in some cases several reports or summaries. These documents can take many forms and cover a variety of issues. Since the information in these documents may, in some instances, necessitate disclosure by publically traded companies, the documents should be properly evaluated.
Role of Lawyers
Due to the complexity of the considerations surrounding ESG diligence, legal integration can be an important aspect of the process. Lawyers can facilitate ESG diligence through the coordination of the many goals, evolving frameworks and variety of experts to develop a sound, consistent record that can later be provided to third parties or protected as confidential where appropriate. Lawyers can also ensure that transaction documents contain appropriate provisions to support ESG commitments and provide advice on any reporting or disclosures that may be required as a result of the ESG diligence. The ESG diligence process is in part a risk assessment tool and experienced lawyers can advise clients regarding risk mitigation and potential value creation opportunities. ESG diligence may be considered mainstream, but there are many unsettled considerations. Lawyers can help limit unintended exposure to new risks and liability.
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- PEMEX
- Penalties
- Penalty
- PennEast Pipeline
- Pennsylvania
- Perfluoroalkyl
- Permian Basin
- Permitting
- Pesticide Devices
- Pesticides
- Pete Buttigieg
- Petition
- Petition for Rulemaking
- Petitions for Objection
- PetraNova
- Petrochemical Regulation
- Petróleos Mexicanos
- Petroleum Products
- PFAS
- PFAS Action Plan
- PFAS in Products State Law Tracker
- PFAS Reporting Rule
- PFAS Strategic Roadmap
- PFBA
- PFBS
- PFNA
- PFOA
- PFOS
- PHMSA
- Physicians for Social Responsibility
- Pimphales Promelas
- PIP
- Pipe Manufacturing
- Pipeline
- Pipeline and Hazardous Materials Safety Administration
- Pipeline Attacks
- Pipeline Construction
- Pipeline Safety
- Pipelines
- PIPES
- Plastic
- Plastic Carryout bag
- PNAS
- POCSR
- Point Source
- Point Source Discharge
- Policy
- Policy Statement
- Pollution
- Pollution Exclusion
- Pollution Liability
- Pollution Prevention for Healthy People and Puget Sound Act
- Polyalkyl
- Polyfluoroalkyl
- Port of Los Angeles
- Porter-Cologne Water Quality Control Act
- Potentially Responsible Party
- POTW
- PRA
- Practical Law
- Precedent
- Preconstruction Authorizations
- Preemption
- Prejudice
- Preliminary Injunction
- President Biden
- President Trump
- Presidential Transition
- PRGs
- PRI
- Priebus
- Principal
- Principles for Responsible Investments
- Priority Pollutants
- Privacy
- Process Safety Management
- Produced Water
- Product Safety
- Production Cuts
- Production Sharing Contract
- Prohibition on Sale
- Project Development
- Prop. 65
- Proposition 65
- Protected Species
- Protecting Our Conserved Lands Act of 2019
- PRP
- Pruitt
- Pruitt Task Force
- PSC
- PSD
- PSH
- PSM
- Public Comment
- Public Lands
- Public Utilities
- Publicly Owned Treatment Works
- Pumped Storage Hydropower
- PURPA
- Quality Assurance Plan
- R-Project Transmission Line
- Racing Vehicles
- RAGAGEP
- Railroad Commission
- Railroad Commission of Texas
- Railroad Commission of Texas (RRC)
- Rapanos
- RBI
- RCRA
- RCRA Subtitle D
- REACH
- Reasonable Progress Plans
- RECLAIM
- Reconsideration
- RECs
- Redevelopment
- Refinery
- Reform
- Reforma Energética
- Regional Clean Air Incentives Market
- Regional Clean Hydrogen Hubs
- Regional Greenhouse Gas Initiative (RGGI)
- Regional Haze
- Regional Water Quality Control Boards
- Registration Evaluation Authorization and Restriction of Chemicals
- Regulation
- Regulation S-K
- Regulation S-X
- Regulations
- Regulatory
- Regulatory Agenda
- Regulatory Freeze
- Regulatory Guidance
- Regulatory Programs
- Regulatory Reform
- Regulatory Review
- Reliability
- Reliability Safety Valve
- Remediation
- Removal Action
- Renewable
- Renewable Energy
- Renewable Energy Certificates
- Renewable Energy Portfolio
- Renewable Fuel Standards
- Renewable Portfolio Standard
- Renewables
- Renewals
- Reporting
- Request for Information
- ReRED
- Rescind
- Resilience of the Bulk Power System
- Resource Conservation and Recovery Act
- Responsible Business Initiative
- Restoration
- Restriction of Hazardous Substances
- Retail
- Retailers
- Retained
- Retroactivity
- Return on Equity
- RFS
- RHA
- Richard Glick
- Rigs to Reefs
- RIN
- Ripeness
- Risk and Technology Review
- Risk Assessment
- Risk Evaluation
- Risk Management
- Risk Management Plan
- Risk Management Program
- Risk Management Regulations
- Rivers and Harbors Act
- RMP
- Roadmap Release
- Roanoke River Basin Association
- Robert Powelson
- ROE
- ROEs
- RoHS
- Roundtable on Sustainable Palm Oil
- Roundup
- Royalties
- RPS
- RRBA
- RRC
- RTR
- Rule 14a-8(i)(7)
- Rule 65(c)
- Rulemaking
- Russia
- SAB
- Sacred Sites
- SAFE
- Safe Drinking Water Act
- Safe Harbor
- Safe Harbor Regulation
- Safe Harbor Warning
- Safer Consumer Products
- SAFETY Act
- Safety Management System
- San Francisco Bay Regional Water Quality Control Board
- SASB
- SaskPower’s Boundary Dam Unit 3
- SB 1371
- SCAQMD
- Science
- Science Advisory Board
- Science Advisory Board (SAB)
- Scope
- Scope 1
- Scope 2
- Scope 3
- Scott Pruitt
- SCOTUS
- SDWA
- SEC
- Section 10
- Section 104 Request
- Section 114 Request
- Section 179B(b)
- Section 208 Request
- Section 308 Request
- Section 4
- Section 401
- Section 404
- Section 408
- Section 45Q
- Section 5
- Section 6(b)
- Securities Act
- Securities and Exchange Commission
- Securities and Exchange Commission (SEC)
- Securities Law
- Seismicity
- Seminole Rock
- Senate
- Senate Energy and Natural Resources Committee
- Senator Lamar Alexander
- SEP
- SEPs
- Services
- Settlements
- Sewage
- Shareholder Lawsuits
- Shutdown
- Sierra Club
- Significant Figures
- Significant Guidance
- Significant New Use Rule
- SIP
- Smelter
- SNUR
- Social
- Social Media
- Solar
- Solid Waste
- South China Sea
- South Coast Air Quality Management District
- SPCC
- Species
- Spill Prevention Control and Countermeasure Rule
- SSB 5135
- SSM SIP Call
- Stabilization Clause
- Standing
- Standing Rock Sioux
- Stare Decisis
- State
- State Administrative Appeals
- State Air Pollution Control Board
- State Constitutions
- State Environmental Quality Review Act
- State Implementation Plan
- State Law
- State Water Resources Control Board
- States
- Statute of Limitations
- Statutory Authority
- Statutory Interpretation
- Stormwater
- Strategic
- Straw Proposal
- Subrogation
- sulfur dioxide
- Sunset Review
- Superfund
- Supplemental Environmental Projects
- Supply Chain
- Supreme Court
- Supreme Court of Texas
- Supreme Court of the United States
- Surface Mining Act
- Surface Water Discharge
- Susan Bodine
- Sustainability
- Sustainability Accounting Standards Board
- Sustainable Development Goals
- Sustainable Investing
- SWDA
- Switzerland
- SWRCB
- Tailings Storage Facility
- Take
- Take Prohibition
- Takings
- Task Force on Climate-Related Financial Disclosures (TCFD)
- Tax
- Tax Credits
- Tax Cuts and Jobs Act
- Tax Reform
- Taxonomy Regulation
- TCEQ
- TCI
- Temporary Policy
- TERP
- Texas Alliance of Energy Producers
- Texas Commission on Environmental Quality
- Texas Legislature
- Texas Railroad Commission
- Texas Water Development Board
- Thailand
- THC
- The European Commission
- The Mikado
- The Treasury Department
- The Water Infrastructure Improvements Act
- the WIIN Act
- Third Circuit
- Threatened Species
- Title V
- TMDL
- TMDLs
- TNALs
- Toledo
- Tolling Order
- Total Maximum Daily Load
- Toxic Chemicals
- Toxic Substances Control Act
- Toxic Substances Control Act (TSCA)
- Toxics
- Toxics Release Inventory
- Transcos
- Transition
- Transmission
- Transparency
- Transport
- Treasury
- Treaty Rights
- Trends
- TRI
- Tribal Rights
- Tribes
- Trump
- Trump Administration
- TSA
- TSCA
- TSF
- TWDB
- U.S. Army Corps of Engineers
- Ultimate Net Loss
- UNCLOS
- Underground Injection Wells
- Underground Storage Tank
- UNFCCC
- Unified Agenda
- United Airlines
- United Nations
- United Nations Framework Convention on Climate Change
- Urgenda
- US Army Corps of Engineers
- US Chemical Safety Board
- US Climate Alliance
- US Court of Appeals for the Ninth Circuit
- US Customs and Border Protection
- US Department of Agriculture
- US Department of Justice (DOJ)
- US Environmental Protection Agency
- US Fish and Wildlife Service
- US FWS
- US SAFETY Act
- US Securities and Exchange Commission
- US Securities and Exchange Commission (SEC)
- US Supreme Court
- USACE
- USDA
- USDOT
- USFWS
- USMCA
- Utilities
- utility
- vapor intrusion
- Vapor Recovery Units
- VCP
- venting
- Veto
- Village of Old Mill Creek. v. Star
- Vineyard Wind
- Virginia Clean Economy Act
- Virginia Community Flood Preparedness Fund
- Virginia Department of Environmental Quality
- Virginia State Corporation Commission
- vision of Corporation Finance
- VOCs
- Volatile Organic Compounds
- Voluntary Cleanup Program
- Voluntary Remediation
- Waiver
- Waiver Period
- Warnings
- Washington
- Waste
- Waste Discharge Identification Number
- Waste Electrical and Electric Equipment
- Waste Permitting
- Wasted Food
- Wastewater
- Wastewater Treatment
- Water
- Water Quality Certification
- Water Quality Criteria
- Water Regulation
- Water Reuse
- Water Supply and Management
- Water Systems
- Waterfront
- Waters
- Waters of the United States
- WDID
- WEA
- WEEE
- Well Blowout
- Well Control Rule
- WET Tests
- Wetlands
- Whole Effluent Testing
- Wholesale Electricity
- WildEarth Guardians
- Wildfire
- Wind
- Wind Energy
- Wind Energy Area
- wind farms
- Winning on Reducing Food Waste Initiative
- Winter v. NRDC
- Withdrawal or Reinstatement
- World Bank Group Equator Principles
- Worst-Case Discharge
- WOTUS
- WQBELs
- WQC
- Wyoming
- Zero Emissions
- Zero-Emissions Vehicle Initiative
- Zinke
Authors
- Yaniel Abreu
- Elizabeth E. Aldridge
- Walter J. Andrews
- John J. Beardsworth, Jr.
- Nancy B. Beck, PhD, DABT
- Jordan L. Bernstein
- Timothy E. Biller
- George Borovas
- Lawrence J. Bracken II
- Shannon S. Broome
- Karma B. Brown
- Samuel L. Brown
- F. William Brownell
- Courtney Cochran Butler
- Julia J. Casciotti
- Michelle G. Chan
- E. Carter Chandler Clements
- Abigail Contreras
- Benjamin Y. Cooper IV
- Christopher J. Cunio
- Alexandra B. Cunningham
- Andrea DeField
- Meredith Doswell
- Douglas L. Dua
- Deidre G. Duncan
- Frederick R. Eames
- Clare Ellis
- Latosha M. Ellis
- Susan S. Failla
- Geoffrey B. Fehling
- Andrea Field
- Hannah Flint
- Steven C. Friend
- Kevin E. Gaunt
- Andrew G. Geyer
- Erin Grisby
- Elisabeth R. Gunther
- Steven M. Haas
- Alexandra Hamilton
- Patrick Jamieson
- Kevin W. Jones
- Dan J. Jordanger
- Ryan T. Ketchum
- Sami M. Khan
- Jonathan H. Kim
- Scott H. Kimpel
- Charles H. Knauss
- Garrett Kral
- J. Pierce Lamberson
- Lucinda Minton Langworthy
- Jaclyn E. Lee
- Matthew Z. Leopold
- Charlotte Leszinske
- Brian R. Levey
- Michael S. Levine
- Elbert Lin
- Eric R. Link
- Nash E. Long
- David S. Lowman, Jr.
- Phyllis H. Marcus
- Jeffrey N. Martin
- Lorelie S. Masters
- Patrick M. McDermott
- Kerry L. McGrath
- Robert J. McNamara
- Michael J. Messonnier, Jr.
- Jennifer MikoLevine
- Todd S. Mikolop
- Angela Morrison
- Michael J. Mueller
- Eric J. Murdock
- Ted J. Murphy
- William L. Newton
- Henry V. Nickel
- Paul T. Nyffeler, PhD
- Peter K. O’Brien
- G. Michael O’Leary
- Evangeline C. Paschal
- Kate Perkins
- Shemin V. Proctor
- Shawn Patrick Regan
- Myles F. Reynolds
- Doris Rodríguez
- Brent A. Rosser
- Christian Rudloff
- Rachel Saltzman
- Arthur E. Schmalz
- Penny A. Shamblin
- Michael R. Shebelskie
- George P. Sibley, III
- Joseph C. Stanko
- Martin P. Stratte
- Javaneh S. Tarter
- Thomas W. Taylor
- Patricia Tiller
- Linda Trees
- Andrew J. Turner
- Emily Burkhardt Vicente
- Gregory R. Wall
- Thomas R. Waskom
- Malcolm C. Weiss
- Michelle-Ann C. Williams
- Susan F. Wiltsie