Climate Policy Advisory: Are Your Climate Disclosures Legally Sound?

The SEC's finalized climate disclosure rule requires large accelerated filers to disclose Scope 1 and Scope 2 emissions in their annual reports, while the EU CSRD requires large companies to report on all three scopes ( including Scope 3, which covers emissions in the company's upstream supply chain and downstream product use ) and the mismatch between these two regimes means that a multinational company reporting under both frameworks must maintain parallel measurement methodologies, different boundary-setting conventions, and different levels of third-party assurance, all of which require legal coordination to ensure that disclosures in one jurisdiction are not inconsistent with disclosures in another in a manner that creates securities fraud exposure.

Carbon emissions compliance and carbon emission regulations counsel can advise on the specific Scope 1, 2, and 3 emissions reporting obligations and develop the emissions reporting and verification compliance strategy.

Physical risks ( the financial consequences of extreme weather events, sea level rise, and temperature increases on the company's assets, supply chains, and operations ) require scenario analysis and asset-level vulnerability assessment, while transition risks ( the financial consequences of the shift to a low-carbon economy, including changes in policy, technology, and market preferences ) require an assessment of how the company's business model and stranded asset exposure will be affected by a range of decarbonization pathways, and both types of risk must be assessed and disclosed under both the SEC climate disclosure rule and the EU CSRD.

SEC compliance and financial regulatory counsel can advise on the specific physical and transition risk disclosure requirements and develop the climate risk identification, assessment, and investor filing disclosure strategy.

The Inflation Reduction Act's clean energy tax credits represent the largest climate-related fiscal incentive program in United States history, and a company that fails to comply with the IRA's prevailing wage, apprenticeship, domestic content, and energy community requirements will claim only the base credit rate rather than the enhanced credit rate, which can reduce the value of available credits by eighty percent. Tax equity financing ( the practice of bringing in a tax equity investor who can use the tax credits generated by a clean energy project to offset its own tax liability ) is the primary mechanism through which project developers monetize IRA credits, and the legal structuring of tax equity arrangements involves a complex interplay of partnership tax law, securities law, and energy regulatory requirements.

Inflation Reduction Act resource center and project finance counsel can advise on the specific IRA tax credit eligibility and tax equity financing structure and develop the IRA tax credit optimization and tax equity financing strategy.

The EU's Carbon Border Adjustment Mechanism applies a carbon price to imports of iron and steel, aluminum, cement, fertilizers, electricity, and hydrogen, with full financial obligations taking effect in 2026, and the mechanism requires importers to purchase CBAM certificates equal to the embedded carbon content of covered goods minus any carbon price already paid in the country of production. A company that imports goods covered by the CBAM must assess whether its supply chain is able to provide the embedded carbon content data required for CBAM reporting, engage with its suppliers about carbon pricing arrangements, and evaluate whether the additional CBAM cost changes the economics of its sourcing decisions in a manner that requires renegotiation of supplier contracts.

International trade law and international sanctions and trade tariffs counsel can advise on the specific CBAM compliance obligations and cross-border trade carbon cost requirements and develop the CBAM compliance and carbon cost management strategy.

The SEC has brought enforcement actions alleging that investment advisers, public companies, and ESG fund managers made materially misleading disclosures about their climate and ESG claims, and the FTC's revised Green Guides create an enforcement framework for consumer-facing environmental marketing claims, while state attorneys general in California, New York, and other jurisdictions have investigated fossil fuel companies and asset managers for alleged greenwashing. The legal risk in greenwashing claims arises not only from affirmative false statements but also from omissions ; a company that publicly commits to net zero by 2050 but fails to disclose that it has not developed a transition plan, has not set interim emissions reduction targets, or relies on unverified carbon offsets to meet the majority of its commitment may face securities fraud, consumer protection, or breach of fiduciary duty claims.

Environmental compliance and litigation and SEC enforcement counsel can advise on the specific regulatory enforcement pattern and greenwashing litigation defense requirements and develop the greenwashing litigation defense and climate disclosure accuracy strategy.

Sustainability and responsible business and sustainability counsel can advise on the specific greenwashing legal liability framework and develop the comprehensive greenwashing defense, net zero commitment, and decarbonization disclosure strategy.

A legally defensible net zero commitment requires more than a headline target ; it requires a documented decarbonization pathway with interim milestones, a methodology for measuring and verifying emissions against those milestones, a clear accounting of the role that carbon credits will play in the pathway, and a governance structure that ensures the commitment is incorporated into the company's capital allocation, procurement, and strategic planning decisions. Companies that make net zero commitments without this supporting infrastructure are creating legal exposure that may materialize years later when actual emissions fail to track the committed pathway, and the legal defensibility of the commitment will ultimately turn on whether the company can demonstrate that it made a good-faith effort to achieve the target.

Energy transition and climate change counsel can advise on the specific net zero commitment and decarbonization disclosure requirements and develop the legally defensible net zero commitment and decarbonization pathway strategy.

The voluntary carbon market offers companies a mechanism for offsetting residual emissions that cannot yet be eliminated through direct decarbonization, but the carbon credit market includes projects with widely varying quality standards, verification methodologies, and additionality claims, and a company that purchases low-quality offsets and represents them as equivalent to actual emissions reductions may face greenwashing claims, securities fraud allegations, and reputational consequences. The legal due diligence framework for carbon credit purchases should assess the registry used, the verification standard applied, the project developer's track record, the vintage and permanence of the credits, and the legal representations the credit seller is prepared to make about the quality and integrity of the underlying offset.

Sustainable finance and impact investing counsel can advise on the specific carbon credit market legal requirements, verification standards, and offset credit risk obligations and develop the carbon credit market compliance and offset risk management strategy.

The most significant governance gap in most companies' climate programs is the disconnect between the sustainability function that prepares ESG disclosures and the board-level oversight processes that are supposed to govern the company's climate-related risks and opportunities, and regulators, institutional investors, and plaintiff's attorneys are increasingly scrutinizing this disconnect to identify cases where boards were not adequately informed about climate risks that later materialized in ways that harmed shareholders. A company that embeds climate risk assessment into its enterprise risk management framework, creates clear board-level oversight responsibility for climate-related risks and opportunities, and establishes internal processes that ensure climate-related information flows to the board in a timely and accurate manner is building the governance infrastructure that will be essential to demonstrating good faith compliance with emerging climate disclosure and liability standards.

Corporate governance and corporate compliance and risk management counsel can advise on the specific climate risk governance and corporate strategy integration requirements and develop the climate risk governance and board-level climate oversight strategy.