Annals of the Obscure--Accounting Rule Changes May Adversely Impact Energy Efficiency and Renewable Energy

I have tried to make simple and clear many complex legal topics before, including class action law suits and IRS tax-free bonds, but never have I faced this great a challenge. 

Apparently, the Financial Accounting Standards Board (FASB) and the International Accounting Standards Board (IASB), which are in charge of setting new accounting standards for companies, have set in motion a rulemaking process which would require companies to list leases as assets and liabilities on their books.  These leases would include Power Purchase Agreements, Sale-Leasebacks of renewable energy installations and ESCO contracts. 

By putting these transactions "on the books," it has a variety of implications, including increasing the debt ratio of many companies, and increasing the disclosure and transaction costs associated with those efforts.  These implications may mean that companies are less willing to do renewable energy and energy efficiency transactions, and ESCOs and other companies have a harder time benefitting from the transactions. 

 The folks over at the National Renewable Energy Laboratory have done a detailed analysis of the rule changes here and Forbes had a more user friendly (if less detailed) piece here

 

Sunshine Is The Best Disinfectant--SEC Changes Climate Risk Disclosure Rules

Yesterday, the Securities and Exchange Commission issued revisions to Staff Legal Bulletin No. 14E (CF).  Why do we care about an obscure SEC procedural document here at GBLB? According to the RiskMetrics Group Blog, an earlier 2005 version of the document

concluded that resolutions [about climate change risk] could be omitted under SEC Rule 14a-8 (i)(7) as ordinary business matters, not suitable for shareholder consideration, if they involve “an internal assessment of the risks or liabilities that the company faces as a result of its operations that may adversely affect the environment or the public’s health.”

In other words, shareholder resolutions seeking information about companies'  financial climate change risk did not have to be addressed by SEC regulated corporation.

The brand spanking new Legal Bulletin 14E changes the metrics for determining when shareholder resolutions regarding climate change risk need to be included in SEC documents:

Henceforth, the bulletin says, in deciding when a company can omit a resolution, rather than focusing on whether a resolution relates to an evaluation of risk, the staff will instead focus on the underlying subject matter to which the risk pertains.

So, if a company has a large financial risk due to carbon belching power plants or portfolios of resource sapping buildings, it is possible that shareholders will be able to call for an accounting of the risk to their investments. 

As Justice Brandeis said, "Sunshine is the best disinfectant."  By allowing shareholders to demand cliamte risk disclosure, companies may be more inclined to undertake risk management strategies--like green building--to ameliorate their risk.