Not another addition to the burgeoning agenda template.

Boards are asked to consider the impact of climate change on their strategy and risk profile and, where they judge it appropriate, make climate change related disclosures. This is expressly stated in the recent amendment to the Guernsey Financial Services Commission’s (“GFSC”) Finance Sector Code of Corporate Governance which will come into effect for financial years starting 1 October 2021.

Before we consider the practical impact hereof for directors, it could be worthwhile taking a step back to remind ourselves of the bigger picture:

According to the World Economic Forum’s Global Risks Report 2021 (16^th Edition) (as depicted in the below scatter diagram extracted from said Report): “Climate change—to which no one is immune—continues to be a catastrophic risk. Although lockdowns worldwide caused global emissions to fall in the first half of 2020, evidence from the 2008–2009 Financial Crisis warns that emissions could bounce back. A shift towards greener economies cannot be delayed until the shocks of the pandemic subside. “Climate action failure” is the most impactful and second most likely long-term risk identified in the GRPS [“Global Risks Perception Survey”].”  

*Source: http://www3.weforum.org/docs/WEF_The_Global_Risks_Report_2021.pdf

Given the real challenges, consequences and impact the Covid19 pandemic has had (and still continues to have) on each and every one of us across the globe and seeing climate action failure in such real catastrophic terms on par with infectious diseases, in this diagram, there can be no doubt that we need to take action.

Governments are taking heed and regulatory changes are being made and the duties and responsibilities imposed on directors are ensuing. The winds of change are also evidenced by the recent rise in court cases brought by ordinary individuals against governments and corporations and the increase in rulings made in favour of said applicants. An example hereof is the world first recent Australian federal court case brought by teenagers that found the environment minister has a duty of care to protect young people from the climate crisis. More on this story can be read here.

And closer to home, the recent landmark ruling in the Netherlands, ordering Shell to cut its emissions by 45% by 2030, is the first time a company has been legally obliged to align its policies with the Paris climate accords. More on this story can be read here.

To quote Ellie Mulholland, Director of the non-profit Commonwealth Climate and Law Initiative and a Senior Associate in the climate risk governance team of commercial law firm MinterEllison: “There have been five recent developments which, I suggest, heighten the standard of care and consideration to which UK directors must bring to bear on climate risks and climate change.” More on this can be read here. Albeit UK focused, the themes are just as important for Guernsey directors to take note of and to ensure they meet their fiduciary duties, common law duty of skill and care and statutory duties, especially given the recent GFSC’s amendment to the Finance Sector Code of Corporate Governance.

Herewith a quick reference guide on some of the hot (and hotter) topics:

In summary, from Al Gore’s Inconvenient Truth, Leonardo DiCaprio’s Before The Flood, The Greta Thunberg Effect to the recent Oscar-winning documentary My Octopus Teacher, by Craig Foster, a South African documentary filmmaker, naturalist, and founder of the Sea Change Project, the message is crystal clear, however, personal views and moral convictions aside, directors now have a real duty imposed on them to do more. The result of not doing so could in turn have a real financial and reputational impact on corporations and the risks and liabilities associated therewith needs to be properly assessed, managed and mitigated.

Therefore climate change mustn’t only be seen to be added to the burgeoning agenda, but directors must give proper consideration to the impact thereof on their strategy and risk profile and, where they judge it appropriate, make climate change related disclosures.

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