While all eyes are on proposed federal and European climate disclosure rules, the California legislature passed two climate-related bills that overlap somewhat with the Securities and Exchange Commission (SEC)’s proposed climate rules (see our client alert on the proposal). Senate Bill 253, the Climate Corporate Data Accountability Act, requires California’s State Air Resources Board (CARB) to adopt regulations requiring U.S. companies that do business in California to publicly disclose their Scope 1, Scope 2 and Scope 3 greenhouse gas emissions. Companies will also need to receive independent third-party assurance of their Scope 1 and 2 emissions data to start, with the potential for Scope 3 emissions assurance if CARB establishes such a requirement. Senate Bill 261, Greenhouse Gases: Climate-Related Financial Risk, requires companies to publicly disclose a climate-related financial risk report regarding their climate-related financial risks and any risk mitigation and adaptation measures for such risks. These bills, if adopted, would apply to private and public companies with specified revenue levels that also do business in California—and impose significant burdens in terms of compliance efforts and related expenses.
Notably, SB 253 was introduced and failed in a prior legislative session, but there seems to be a larger amount of support this time around, including from companies like Apple. The California Assembly and Senate passed and sent the bills to Governor Gavin Newsom, who has until October 14 to sign or veto them.
Climate Corporate Data Accountability Act
Authored by Senator Scott Wiener, SB 253 would, if adopted, require annual disclosure of companies’ direct, indirect and supply chain–related greenhouse gas (GHG) emissions. The proposed bill is especially notable for requiring Scope 3 emissions data—an aspect of the SEC’s proposed climate rules that was highly controversial due to the difficulty in calculating Scope 3 emissions, which are also often the largest piece of the total corporate carbon emissions pie.
Corporations, limited liability companies and certain other business entities (1) with total annual revenues in excess of $1 billion dollars (based on the company’s revenue for the prior fiscal year) and (2) that do business in California are subject to these disclosure and assurance obligations.
The bill doesn’t define what it means to “do business” in California. However, it may not require companies to have a physical presence in California. Companies may need to look beyond this bill and into different parts of California law, including the California Corporations Code and caselaw, to assess whether they fall in scope. For example, under the California Corporations Code §§ 191 and 2105(a), transacting intrastate business is defined as “entering into repeated and successive transactions of its business in [California], other than interstate or foreign commerce.” Certain activities may not be considered doing business in California, including simply maintaining a bank account in California or conducting an isolated transaction completed within a 180-day period. See also, for example, Hurst v. Buczek Enterprises, LLC, for a discussion on what constitutes doing business under the California Corporations Code. Similarly, under the California Revenue Taxation Code §23101, doing business is defined as “actively engaging in any transaction for the purpose of financial or pecuniary gain or profit,” including if the company is commercially domiciled in California.
The bill does not have any exemptions for private companies.
Required GHG Disclosures and Verification
Companies will start reporting, in an easily understandable and accessible manner, their Scope 1 and Scope 2 GHG emissions starting in 2026, and Scope 3 GHG emissions starting in 2027.
- Scope 1 emissions are defined as “all direct greenhouse gas emissions that stem from sources that a [company] owns or directly controls, regardless of location, including, but not limited to, fuel combustion activities.”
- Scope 2 emissions are defined as “indirect greenhouse gas emissions from consumed electricity, steam, heating, or cooling purchased or acquired by a [company], regardless of location.”
- Scope 3 emissions are defined as “indirect upstream and downstream greenhouse gas emissions, other than scope 2 emissions, from sources that the [company] does not own or directly control and may include, but are not limited to, purchased goods and services, business travel, employee commutes, and processing and use of sold products.”
The GHG emissions will be reported using the standards and guidance promulgated by the Greenhouse Gas Protocol (GHG Protocol). The GHG Protocol is an emissions accounting standard many companies are already familiar with, as various climate reporting frameworks and regulations, including the SEC’s proposed rules, already refer to the GHG Protocol to account for and report GHG emissions. Note that the GHG Protocol is in the middle of its standards update process, and final versions of updated standards and guidance may be expected in 2025. The CARB will also conduct a review process starting in 2033 and every five years thereafter to potentially adopt an alternative accounting and reporting standard.
Companies will need to obtain an assurance engagement for the GHG emission disclosures and provide to an emissions reporting organization a copy of the assurance provider’s report, including the name of such assurance provider. The third-party assurance provider will need to have “significant experience in measuring, analyzing, reporting, or attesting to the emission of greenhouse [gases] and sufficient competence and capabilities necessary to perform engagements in accordance with professional standards and applicable legal and regulatory requirements.”
Starting in 2026, Scopes 1 and 2 emissions will be assured at a “limited assurance” level, and at a “reasonable assurance” level starting in 2030. For Scope 3 emissions, companies may need “limited assurance” starting in 2030, depending on CARB’s review and evaluation in 2026.
Companies will also need to pay an annual fee that will be contributed to a newly created Climate Accountability and Emissions Disclosure Fund to help maintain this program. The fee has yet to be determined, but the total amount collected shall not exceed the CARB’s actual and reasonable costs for administration. The fee may also be adjusted in any year to reflect changes in the California Consumer Price Index.
This emissions data will be available on a digital platform created by the emissions reporting organization, and consumers will be able to view this data as aggregated in a variety of ways (including multi-year data). Combined with the bill’s aim in making the disclosure “easily understandable and accessible,” the sponsors believe that consumers will be able to assess whether companies touting their sustainability efforts are truly walking the walk.
The CARB is required to develop these disclosure regulations on or prior to January 1, 2025.
Starting in 2026 (on or by a date to be determined by the CARB), companies will need to publicly disclose and verify their Scopes 1 and 2 emissions for their prior fiscal year.
Starting in 2027, companies will need to publicly disclose their Scope 3 emissions for the prior fiscal year no later than 180 days after the disclosure of their Scopes 1 and 2 emissions. This 180-day gap may change by January 1, 2030, depending on any later updates by the CARB.
While these deadlines are coming quickly and companies will need to ramp up, it may also lead to opportunities for companies that want to attract consumers who purchase from more sustainable brands.
Penalties for Noncompliance
Companies that fail to comply with this bill will receive an administrative penalty not to exceed $500,000 in a reporting year. The penalty amount will depend on the company’s facts and circumstances, including past and present compliance with the bill and any good faith measures taken. Companies shall not be subject to an administrative penalty under this section for any misstatements with regard to Scope 3 emissions disclosures made with a reasonable basis and disclosed in good faith, and between 2027 and 2030, only penalties for failure to file will be assessed on Scope 3 emissions reporting.
Greenhouse Gases: Climate-Related Financial Risk
Authored by Senator Henry Stern, SB 261 would, if adopted, require biennial disclosure of climate-related financial risks and risk mitigation measures.
Corporations, limited liability companies and certain other business entities (1) with total annual revenues in excess of $500 million dollars (based on the company’s revenue for the prior fiscal year) and (2) that do business in California are subject to these disclosure obligations. Even if a company’s subsidiary meets these scoping requirements, it will not need to provide a separate report if the parent company submits a consolidated report. As discussed above, there is some ambiguity as to what it means to “do business” in California as this bill also does not define the term.
This bill similarly does not have any exemptions for private companies.
Required Risk Disclosures
Companies will need to biennially prepare a climate-related financial risk report disclosing:
- Climate-related financial risks, in accordance with Final Report of Recommendations of the Task Force on Climate-related Financial Disclosures (the TCFD), as published by the TCFD or any successor thereto; and
- Measures adopted by the company to reduce and adapt to the disclosed climate-related financial risks.
The bill defines “climate-related financial risks” as “material risk of harm to immediate and long-term financial outcomes due to physical and transition risks, including, but not limited to, risks to corporate operations, provision of goods and services, supply chains, employee health and safety, capital and financial investments, institutional investments, financial standing of loan recipients and borrowers, shareholder value, consumer demand, and financial markets and economic health.”
A company that cannot provide all the required disclosures must provide what it can to the best of its ability, provide a detailed explanation for any reporting gaps, and describe steps the company will take to provide all required disclosures.
A company may satisfy its requirement under SB 261 if it prepares a publicly accessible biennial report that includes climate-related financial risk disclosure information (1) under a law, regulation or listing requirement issued by a regulated exchange, national government or other governmental entity incorporating similar disclosure requirements, likely including the proposed SEC climate disclosure rules and/or (2) voluntarily using a framework that provides for similar disclosure.
The bill specifically notes that compliance with the International Financial Reporting Standards (IFRS) Sustainability Disclosure Standards, as issued by the International Sustainability Standards Board (the ISSB Standards) would meet a company’s reporting obligations. In June 2023, the ISSB, which will be the successor to the TCFD’s monitoring responsibilities going forward, published its initial sustainability disclosure standards, IFRS S1 and IFRS S2, which build on the TCFD framework and consolidate various sustainability-related frameworks and standards.
To the extent the company discloses a description of its GHG emissions or voluntary mitigation thereof in its report, the CARB may consider such claims if they are verified by an independent third-party verifier. The bill does not specify any minimum requirements for the third-party independent verifier.
A subject company must make the report publicly available on its corporate website. A climate reporting organization will review a subset of these reports by industry and identify inadequate reports. This organization will also propose any additional changes and best practices for disclosure.
On or before January 1, 2026, subject companies will also be required to pay an annual fee to the CARB upon filing their disclosures for the administration and implementation of the bill. The fee has yet to be determined, but the total amount collected shall not exceed CARB’s actual and reasonable costs for administration.
Companies will need to disclose the climate-related financial risk reports starting on or before January 1, 2026.
Penalties for Noncompliance
Companies that fail to comply with this bill will receive an administrative penalty not to exceed $50,000 in a reporting year. The penalty amount will depend on the company’s facts and circumstances, including past and present compliance with the bill and any good faith measures taken.
Comparison Against SEC’s Proposed Climate Disclosure Rules
In March 2022, the SEC proposed climate disclosure rules would require public companies to disclose certain climate-related information in their annual reports and registration statements. These proposed rules require, among others, disclosure regarding (1) climate-related risks that are reasonably likely to have a material impact on a company’s business, results of operations or financial condition, (2) GHG emissions, (3) board oversight of climate-related risks, and (4) certain climate-related financial metrics in the company’s audited financial statements.
Below are two key differences between two sets of regulations:
- California’s bills also reach large private companies. While the SEC’s proposed climate rules are limited to public companies, California’s bills reach further to large private companies. Under SB 253, companies with annual revenue over $1 billion that do business in California would have to disclose Scope 1, Scope 2 and Scope 3 emissions, regardless of whether they are private or public. Under SB 261, companies with annual revenue over $500,000 that do business in California would have to provide climate-related financial risk reports.
- California’s SB 253 requires mandatory Scope 3 GHG emissions disclosure. Under the SEC’s proposed climate rules, companies must disclose their total Scope 3 emissions if material, or if they set a GHG emissions reduction target or goal that includes their Scope 3 emissions. Additionally, smaller reporting companies are exempt from the Scope 3 GHG emissions requirement. However, California’s SB 253 will require subject companies to disclose their Scope 3 GHG emissions starting in 2027.
Considerations and Takeaways
- Companies should prepare to beef up their climate-related disclosure controls. Companies that have not previously conducted GHG inventories or assessed their exposure to climate-related risks will need to develop internal reporting structures and establish processes and procedures to gather, verify and report such information. These bills also do not constrain the scope of disclosures solely to GHG emissions data or climate-related financial risks located within California, so these controls must be developed across the organization’s geographies. Unlike the SEC’s proposed rules, the California bills do not distinguish between private or public companies; therefore, private companies subject to these bills may also need to develop disclosure controls and procedures similar to those of public companies to report the required information. Even if companies are not subject to either of these sets of regulations, they may need to provide emissions data if they are part of another company’s Scope 3 GHG emissions. Further, funding sources may start to require representations with respect to these disclosures. For guidance on developing such disclosure controls, see our general guidance and our previous client alert for private companies.
- Companies should start educating their board and management teams regarding climate-related risks and disclosures. Sustainability-related regulations are being adopted not just in the U.S., but internationally, including in the European Union (EU). As a result, it is critical to educate boards and senior management of material sustainability-related risks and whether the company’s business model and strategy account for those climate-related risks. Even without mandatory climate disclosure rules in place, companies’ lack of climate-related disclosures have started to impact the boardroom in recent years, for example, with CalSTRS voting against directors at 2,035 global companies without adequate climate risk disclosures in 2023. Moreover, to the extent that a company makes any sustainability-related claims without proper oversight and disclosure controls, a public company may not only face greenwashing-related litigations but also draw the attention of the SEC’s Climate and ESG Task Force in the SEC’s Division of Enforcement. Finally, to the extent the company is materially impacted by any climate catastrophe (i.e., hurricanes, wildfires), shareholders may potentially sue the board for inadequate oversight of material climate-related risks.
- Companies should ensure that their various climate-related disclosures are consistent. A company may be subject to additional climate-related reporting requirements under international and federal laws, such as the EU’s Corporate Sustainability Reporting Directive, the SEC’s proposed rules or the proposed federal supplier disclosure rules (see our client alert here). In addition, a company may face demands from stakeholders to report to a voluntary framework such as the TCFD or the ISSB Standards. SB 253 acknowledges that there may be other national and international GHG emissions reporting requirements, and companies may submit reports meeting such other requirements, as long as such reports also satisfy the requirements of SB 253.
- Public companies covered under SB 253 should consider disclosing Scope 3 emissions in SEC filings. As discussed above, under the SEC’s proposed climate rules, certain companies may not be required to disclose their Scope 3 GHG emissions. However, the SEC—as well as company stakeholders—may question a company’s materiality assessment if the Scope 3 emissions disclosed under the California bills are large in comparison to its Scopes 1 and 2 emissions and the company fails to disclose Scope 3 emissions in its SEC filings.
Also published in The Harvard Law School Forum on Corporate Governance.
Also published in the Corporate Governance Advisor.
Additional coverage by Reuters, Law.com and the LA Daily Journal (subscription required).