The Growing Anti-ESG Movement
The backlash against the ESG movement is on the rise. ‘Anti-woke’ investment funds are launching, and 19 US States wrote a letter to BlackRock, saying it is putting leftist politics above investor interests and returns. Jackie and Peter debate if the ESG backlash could change corporate behaviour around climate and the environment. Especially when you consider that, compared with the pro-ESG movement, the anti-groups currently represent much less capital.
Next, we invite our guest Radha Curpen, Vice Chair, Vancouver Managing Partner and National Leader, ESG and Strategy and Solutions, Bennett Jones to join us to provide an update on the legal aspects of ESG for corporations.
Content referenced in this podcast:
- To receive Peter’s weekly email commentary, sign-up at Energyphile.org
- The Oxford Institute for Energy Studies paper “Global trade of hydrogen: what is the best way to transfer hydrogen over long distances?”
- Arizona Attorney General Mark Brnovich organized and is leading a coalition of 19 states that sent a letter to BlackRock Inc., calling out its practices of putting leftist politics above investors’ interests and returns (August 4, 2022)
- ‘Anti-Woke’ investment fund launches to back companies that only focus on profits, Proactive (May 11, 2022)
- Anti-ESG Activist Investor Urges Chevron to Increase Oil Production, WSJ (September 6, 2022)
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The Growing anti-ESG Movement
Environmental, social and governance (ESG) criteria are a set of standards for a company’s behaviour used by socially conscious investors to screen potential investments. It’s not an entirely new concept at all.
“Even before ESG, there was CSR Corporate social responsibility,” points out Peter. “And, prior to that, I think we called it sustainability or something like that. The whole notion of being responsible toward the environment, towards social issues and govern well, is not going away. I guess it seems like this brand that has been created. I call it ESG, seems to be becoming damaged. And, therefore, if that damage is causing paralysis in our ability to get things done, raising capital to build infrastructure to reduce emissions, then I guess it needs a rethink.”
However, the backlash against the ESG movement is on the rise. ‘Anti-woke’ investment funds are launching, and 19 U.S. States wrote a letter to BlackRock, saying it is putting leftist politics above investor interests and returns.
In this episode Jackie and Peter talk with Radha Curpen, Vice Chair, Vancouver Managing Partner and National Leader, ESG Strategy and Solutions at Bennett Jones. She works in environmental law, Aboriginal law, crisis management and recovery, and ESG.
“Well, I view energy security as falling into all three pillars,” says Ms. Curpen. “It’s not that the climate issues and the climate adaptation, climate change and all that is not important. It is, and there’s many companies in the national resource sectors taking extremely important steps in this area. What we’re saying is that energy security right now is something that is and should be at the forefront of what people are looking at when they’re looking at war in Ukraine and Russia. Look what’s happening in Germany.”
But the concept of ESG investments, while not new, seem to be becoming more polarizing. For example, some investors in Texas are suggesting they won’t back banks they deem to be too ESG-friendly.
“I think it is damaging, because when people talk about ESG, even when you look at the articles in the Wall Street Journal, the Economists, the Financial Times, sometimes there is a misunderstanding of what it is. And I think that people have used ESG and sustainability in a way that makes some products look good, but there’s no substance behind it. There is an appetite for substance behind those words, and that appetite is growing, and I think it should be there.”
“ESG, whether you call it that, or you call it ‘Ways for people to identify and assess 21st century risk and fulfill 21st century opportunities,’ that’s going to continue, whether you call it ESG or not.”
To receive Peter’s weekly email commentary, sign-up at Energyphile.org
Episode 168 transcript
Disclosure:
The information and opinions presented in this ARC Energy Ideas Podcast are provided for informational purposes only and are subject to the disclaimer link in the show notes.
Announcer:
This is the Arc Energy Ideas Podcast with Peter Tertzakian and Jackie Forrest, exploring trends that influence the energy business.
Jackie Forrest:
Welcome to the ARC Energy Ideas Podcast. I’m Jackie Forrest.
Peter Tertzakian:
And I’m Peter Tertzakian, and welcome back. Well, as we’re recording this, it’s been a dramatic day, dramatic week. The UK has a new Prime Minister, Liz Truss. But we’re also recording on the day that Queen Elizabeth II has passed away, which really is a monumental moment given her 70 years in office. It’s definitely a lot of truck waves, especially, it’s not surprising given her age I suppose. But as someone who grew up in the Commonwealth, in the Commonwealth countries, yeah. It’s a big deal.
Jackie Forrest:
It is big deal. And, I mean, you’ll laugh Peter, but I get a lot of my history about the crown from the Netflix series. But the events that she’s lived through, just really interesting. Right back to the World Wars. Just the kind of experiences she’d had, I didn’t really appreciate.
Peter Tertzakian:
And the many energy transitions that she’s lived through all the way from her birth in 1926 to today. And, today, of course, there’s other energy transitional problems on that side of the Atlantic. The story of natural gas is not subsiding. The price is over there and the prospect of a very cold winter for people who live there given that Russian gas supplies have been cut off. And, we had Chancellor Olaf Scholz from Germany visiting last week talking about it.
Jackie Forrest:
Yeah, that’s right. And you put out an email as part of Energyphile. I guess people can subscribe to, is it a weekly email commentary that you send out?
Peter Tertzakian:
Yeah.
Jackie Forrest:
And we wanted to talk about that and just some highlights from it. I guess it was more than a week ago now. But when you wrote it was a week ago, and you talked about that Justin Trudeau and the Chancellor from Germany, they penned a hydrogen alliance and sent big signals on the viability of liquified natural gas with our Prime Minister actually saying that he believed that maybe LNG was economic on our East Coast. And you wrote some things about, “Well, hey, we have some vast gas resources.”
Peter Tertzakian:
Well, I mean, LNG is economic. It’s been around since 1959 when the first LNG tankers sailed. The infrastructure reports around the world are able to liquefy and regasify natural gas. There’s 60 plus years of infrastructure that’s built out. Whereas I’m suggesting I’m not anti-hydrogen, but it’s just that hydrogen infrastructure today is where LNG infrastructure was in 1959. That’s sort of like the maiden voyages of liquid hydrogen tanker and an ammonia tanker only this year. That’s what happened in 1959. We had the maiden voyage or the first LNG tanker, and so it’s a long way off to deal with today’s energy security concerns that are very real that I think are going to last for many, many years here.
Jackie Forrest:
Yeah. Well, and although I think hydrogen will be part of the future economy, it’s not today. And it’s not a slam dunk to transport hydrogen. There’s a lot still to be learned in there. There was a really good paper by Oxford Energy Institute, which I’ll put a link to in the show notes, and it was called the Global Trade of Hydrogen. What is the best way to transfer over large distances? And, this was really a technical paper, I’ll warn you. It’s a bit of a technical read, but it talked about the fact that there’s no easy answers here. How are you going to ship it? Which variety is it going to be as methanol, liquid, hydrogen, ammonia? They’ve even looked at methylcyclohexane.
Jackie Forrest:
Now, all of these have pros and cons, just liquefying the hydrogen and sending it. It takes a lot of energy to keep it cold and it’s light, so each ship doesn’t carry very much. Some of these other options, they’re more dense. However, it takes a lot of energy to convert them into things like ammonia. There’s no easy launcher. And, then it also talked about that all of them raise significant safety issues. Some of them are toxic or flammable, and so there’s going to be issues with public acceptance of this. And so it’s probably not going to happen overnight, building out a huge new infrastructure of how to move this stuff safely.
Peter Tertzakian:
No. It’s a really good paper and talks about the four different ways you can transport hydrogen and as you said and liquefied natural gas. Natural gas liquefies as minus 160 some degrees, whereas liquid hydrogen is minus 250 degrees. It’s just the energy gymnastics, I’ll call it, to transport hydrogen across oceans is more challenging than natural gas, more costly. The paper points out all these things. I can buy into hydrogen economies and sort of domestically, regionally, but to convert it to another medium and transport it and convert it back is very challenging economically. And, even with engineering and physics of the whole thing.
Jackie Forrest:
Yeah. They talked about the total cost of transportation will likely be several times higher than other types of energy. Well, let’s leave it at that.
Jackie Forrest:
Today we’re going to have a little bit of a different format. We’re going to start with Peter and I reviewing some recent news around ESG. And, then we’re going to bring in our guest Radha Curpen, who is the vice chair Vancouver managing partner and national leader of ESG and Strategy and Solutions at Bennett Jones. And she’s going to provide us an update on some of the legal perspectives on ESG. And we think that’s an important perspective to have.
Jackie Forrest:
But let’s start, because it seems more of a polarizing discussion around ESG recently. We talked a little bit about it this summer, but I wanted to talk about two more recent news items that really highlight that. And one is that Arizona is leading a coalition of 19 states that sent a letter to BlackRock, which is a big investment firm, saying it’s practices of putting leftist politics above investor interests and returns are a problem.
Jackie Forrest:
And, Texas has also called them out, as well as other states specifically saying they’re putting in laws that penalize institutions, and they’re making it difficult for oil and gas companies. And so BlackRock has come back and said they disagree. They sent a letter to these 19 states saying that they are solely focusing on fiduciary duty, and they think that this is a great way to ensure that these investments will make money. And they’ve joined climate organizations merely for dialogue, and it’s not a political statement by any means. They’re pushing back, so that’s one example. 19 states is pretty big deal actually.
Peter Tertzakian:
Yeah. That is a big deal. Just when you thought the polarization of the world of energy couldn’t get any worse. I mean here we have a backlash brewing on ESG. Of course, ESG spends more than just energy, but I think it’s symptomatic of the growing anti ESG sentiment in the face of frankly, inflation and other social problems that are emerging. And energy as in natural gas and oil are a driver of that inflation. This backlash in part is coming from that dynamic. And it’s not just the Arizona and the states against institutions like BlackRock. Texas is not going to allow any institution to deal with their state-run pension plans unless they are willing to invest in fossil fuels or the converse or are not eliminating fossil fuels from their portfolio. In other words, divestment. And, then there’s now there’s a series of funds that are emerging called anti woke investment funds.
Jackie Forrest:
There’s an article Anti Woke Investment Fund launches to back companies that only focus on profits. Sort of implying that the SG ones. This was a May article and there’s this Strive Asset Management OTF. And, Peter, it’s a pretty young entrepreneur heading it up.
Peter Tertzakian:
Yeah. His name is Vivek Ramaswamy. He made the news on September 6th, Wall Street Journal and TESG activist investor urges Chevron to increase oil production. To this point, we’ve seen activist investor companies get on the boards of companies like Exxon Mobil to try and get them to spend more money on energy transition. Now we have funds that are coming in as activists to basically exert influence on corporate boards to get them to spend less on energy transition. This is what I’m talking about the backlash, and ultimately this kind of polarization means nothing gets done.
Jackie Forrest:
Well, okay. But Peter, he has a 0.02% stake in Chevron, so he made a lot of news with this letter. But he doesn’t really have a lot of sway here. Now the fund is actually up to 315 million in assets, which they say is a strong start for a new offering. Back in May, it was reported to only have around 20 million in assets when it first launched. But this is still small, and I did some math here. Even if all 19 states are like Texas and say ultimately if you’re named as one of these funds that we’re saying is too ESG friendly and not friendly enough to oil and gas, we’re going to divest of you. That’s probably still about 3.8 trillion of a money that won’t go into the pro ESG. And, if I add in this 315 and there’s a lot of other smaller funds, maybe in this space, this is still probably 4 trillion.
Jackie Forrest:
But hey, I want to compare that to the GFANZ. Remember the Glasgow Financial lines for zero?
Peter Tertzakian:
Yeah.
Jackie Forrest:
That’s 130 trillion of assets under management. Although these are going to make a lot of noise and things like that, in controversy, I’m not convinced there’s enough capital here to cause companies to turn back on their climate commitments.
Peter Tertzakian:
No. Again, I mean, you got to put it in a different context. And this is where the divestment movement was circa 2014 or 15. It was very small and people said, It’s not going to make any difference.” And I’ve been arguing in the last couple of years, the more extreme ESG activism becomes or divestment activism I’ll call it, the greater the backlash that will accompany. It’s like Newton’s laws of motion. Every action is met with an equal and opposite reaction. And I think you’re going to see this movement grow.
Peter Tertzakian:
I do. I don’t think it’s small. I think you’re going to see more. I called it a couple years ago, I said, “Just watch out.” I think you’re going to see an alt finance movement emerge that has completely opposite objectives to the mainstream finance world and the sustainability finance world. We thought polarization was just a political thing or something that’s just across the dining room table, but it’s really starting to manifest itself in the world of finance, as well. And I think that ultimately causes us to think about, well, where is ESG going? And so that’s what we want to explore with our guest speaker today.
Jackie Forrest:
All right. We’re going to switch to that conversation that we had with Radha Curpen on the legal aspects of ESG.
Peter Tertzakian:
We want to understand ESG, and we are delighted today to have someone who is an expert in ESG, especially from a legal perspective. And that is our special guest, Radha Curpen. She’s the vice chair at Bennett Jones, and also the national leader of the ESG and Strategy and Solutions Practice. Welcome, Radha.
Radha Curpen:
Thank you. Thank you, Jackie and Peter.
Jackie Forrest:
Great. Well, we’re happy to have you on. ESG is just a bigger and bigger issue, and it’s even become bigger in that there’s now sort of different camps popping up. Some against it, some for it. But before we get into that, Radha, we’d just love to get a sense of your background and your practice at Bennett Jones.
Radha Curpen:
Yes. I practice law, but I’m also the Vancouver managing partner. I do work in the environmental law area, Aboriginal law, crisis management and recovery, as well as ESG. Environmental social governance issues is taking a lot of my time. I do not call it a practice area; I call it a platform. A lot of time is spent with colleagues and with clients on those issues.
Peter Tertzakian:
Well, you already highlighted, and I think most people who listen to our show already know that E is environmental, S as social, and G is governance. Can you give us a brief review of the sort of where everything is at in terms of ESG? Is it equal waiting? There was very heavy emphasis on the E for a while and then the S and the G. What is the state of the union of this whole ESG movement right now?
Radha Curpen:
Obviously, there’s a lot of emphasis on E when we talk about climate change and energy transition. Energy security, I would say right now is important from a governance and social perspective, but there’s a lot of emphasis, as well and rise of the social criteria. And we can talk about that for in a few minutes when we talk about the EDS and the G if you want. But in terms of the state of the Union or how things are at right now, it’s really, there are events that there is crisis that’s happening all over the world that causing the social issues to be looked at. The governance I view as something extremely important.
Peter Tertzakian:
Yeah. One thing I want to key in on that you said here is that the S and the G now incorporates energy security and also presumably in a societal sense, energy affordability, especially since the invasion of Ukraine. Talk about how companies are viewing energy security and affordability. Improving environmental performance is one thing, but I guess I’m trying to understand how security and affordability fall under the S, and how you quantify that.
Radha Curpen:
Yeah. Well, I view energy security as falling into all three pillars. It’s not that the climate issues and the climate adaptation, climate change and all that is not important. It is, and there’s many companies in the national resource sectors taking extremely important steps in this area. What we’re saying is that energy security right now is something that is and should be at the forefront of what people are looking at when they’re looking at war in Ukraine and Russia. Look what’s happening in Germany.
Jackie Forrest:
Radha, why not just hit on your point. You talked about there’s more emphasis on S and G, but have we really seen that in terms of people’s desire to invest in higher carbon companies? For instance, companies that may have a high carbon footprint today, but they’re providing affordability and energy security and over time they’re going to reduce their emissions. Have you seen institutional investors and others actually be more interested in investing in some of these companies as an outcome of some of the recent events?
Radha Curpen:
Well, what I do want to say is that I sit on the industry working group for the regulators of pension funds and we just develop an ESG guide for pension funds. And one of the things that I said during the various meetings and made it clear to others and others feel the same way too, ESG is not about divesting. It is about engaging. And, in order to get us to the ambition we have about doing more in renewables and all of that, we need all of our energy sources today.
Peter Tertzakian:
Well, ESG is I think sort of more of a high level, I don’t want to call it philosophical, but a high-level guideline framework. But underneath that, there’s all these organizations with an alphabet soup of acronyms that actually get to regulating things. Radha, you mentioned you’re on the CAPSA, I think that’s the industry working group on pension plans, coming up with guidelines. There’s all these guidelines coming, which necessitate reporting. Can you comment on pragmatically, the level of reporting and guidelines, and I guess I’ll call it overall bureaucracies, companies that you work with are having to deal with and if it’s becoming onerous or how are they dealing with it?
Radha Curpen:
It is difficult, because one of the things that companies do when they approach us, it’s almost always about how do we report? And so we always go back and say, “It’s not just about how you report. It is what are you doing? It’s about taking stock first about some of the things you’re doing.” And, people say, “Well, we are new to this.” And, we say, “Not necessarily. You’re not. You’ve been doing things in those relevant areas of ESG, but you need to put it together in a way that people can understand. And also, you need to mean what you say and say what you mean.” You need to go back, and people say, “Well, we are confused by all these standards and frameworks and all of that.” And, we say, “Don’t worry about that. We’ll tell you what those are meant to do.” We can work together with you and the entire, not just the department, but the operational people and the accounting people and the investor relations people, all of them have a role to play.
Jackie Forrest:
Radha, the stakes are getting higher and higher. And, up until now, a lot of the ESG reporting has been more voluntary. Yes, there’s lots of different standards and things you could follow, but it’s changing for public companies, right? There’s plans from the US Securities and Exchange Commission and the Canadian Securities Administrator to have mandatory reporting on ESG. How do the legal risks change under this new mandatory requirement? And I think up until now, companies have been making sort of broad goals. Maybe there weren’t a lot of plans behind those goals. Are they going to have to be more cautious about that? For example, committing to things like net zero by 2050 or some big reduction by 2030 in their emissions?
Radha Curpen:
Absolutely. Jackie, A lot of companies come to us sometimes before they make a commitment, because of the fact that the commitment is going to increase expectations definitely. There’s also litigation risk coming out of those commitments that are being made. When you’re making those commitments, what do you mean? What are the steps that you’re going to be taking in order to ensure that you can meet those commitments, because you’re going to be held accountable. The other thing you mentioned is securities regulation. What I do want to say, reporting issuers provide investors with disclosure. Securities regulators have made it clear that ESG related disclosure will be subject to increased scrutiny for compliance with securities law requirements. And, even in 2021, I think both the British Columbia Securities Commission and the Ontario Securities Commission commenced this green sweep of registrants such as investment fund managers, which were identified as participants in ESG investing to monitor their compliance with securities law and ensure that their disclosure in marketing materials for ESG products is consistent with their investment portfolios.
Peter Tertzakian:
Actually, can I just jump in? The fear of litigation in ESG, do you think that is going to cause companies to not make commitments, because they’re just fearful that if they don’t fulfill those commitments, then they’ll get sued. Isn’t this kind of a dangerous territory we’re entering that it actually may inhibit companies from making commitments?
Radha Curpen:
Well, Peter, it’s a good question. Actually, we have advised companies in some situations not to make certain commitments. I think companies are increasingly looking at their internal legal people and their external lawyers and the board to say, “When do we make a commitment?” We often say, we ask questions, “What is the goal of making the commitment? Why do we need to make it? And, if we do make it, what do we want to say, and what can we say at this point in time?”
Peter Tertzakian:
And I know you and your practice sort of help companies do that to sort of balance all these risks. And so you have the risks of making a commitment that will get you sued versus the risk of not making a commitment and then not being able to raise money. And, in the worst case, the whole ESG thing causes some sense of paralysis and greater polarization, which is my gut feel is sort of where we’re heading. But it’s not just a gut feel, because in recent few months, there’s been high profile articles and comments that have cast doubt on ESG as a whole. One article quotes an Oxford professor Robert Eckels as saying, “ESG label needs to be shelved and replaced with something new.” The Economist magazine opined recently that ESG is in need of a rethink and on and on. What do you think? Is it actually necessary that ESG get rebranded?
Radha Curpen:
It’s that ESG, whether you call it that, or you call it ways for people to identify and assess 21st century risk and fulfill sort of 21st century opportunities that’s going to continue, because whether you call it ESG or not, that is going to continue.
Peter Tertzakian:
Yeah, I agree. Even before ESG, there was, I mean, it’s still out there. CSR Corporate social responsibility. And, prior to that, I think we called it sustainability or something like that. The whole notion of being responsible toward the environment, towards social issues and govern well is not going away. I guess it seems like this brand that has been created. I call it ESG, seems to be becoming damaged. And, therefore, if that damage is causing paralysis in our ability to get things done, raising capital to build infrastructure to reduce emissions, then I guess it needs a rethink. What do you think, Jackie? I mean it’s…
Jackie Forrest:
Yeah. Well, I guess the thing too is if is it going to enable you. Is it becoming more polarized? You’re seeing some high profile events or like the Texas saying, “I’m not going to back banks who have too many ESG friendly.” Allow banks to operate in my state or my pension fund to invest in these banks, because they’re too ESG friendly. I think it is becoming polarizing, and it’s really kind of a people that are for doing something about climate and people who are less concerned by it. In some ways, it’s become just used that way.
Peter Tertzakian:
Well, that’s what I said at the beginning. It’s just becoming more and more polarized, and so maybe we have to rethink the whole ESG.
Jackie Forrest:
Well, I don’t think the requirements to be reporting are going away. In fact, they’re getting more and more each year. I don’t think that’s going away, especially now for public companies that it’s moving from being voluntary to require by regulators. However, as that continues, that ball continues to roll, it does provide more opportunity for people to say, “Hey, this stuff’s all green washing.” And, how damaging are some of these lawsuits? There’s been a couple of high-profile examples here in the last month or two over the summer where people have made certain claims around their products or whether they be funds that they manage, that they are green, and it’s being found out that they’re not as green as they say they are. How damaging is that to the reputation of ESG when people start to see more and more of those headlines? Because I’m concerned that as this gets more into the mandatory, that you’re going to see more and more examples of legal claims that tarnish the brand.
Radha Curpen:
Yeah. I think it is damaging, because when people talk about ESG, even when you look at the articles in the Wall Street Journal, the Economists, the Financial Times, sometimes there is a misunderstanding of what it is. And, also, I think that people have used ESG and sustainability in a way that makes some products look good, but there’s no substance behind it. There is an appetite for substance behind those words, and that appetite is growing, and I think it should be there. And, you are right, we can expect there to be more in terms of reporting.
Radha Curpen:
I do want to make this emphasis though, there’s always a disclosure obligation as to anything that investors would consider material. What is material? What is material today is for companies to take a look at those ESG factors, because it is part of the 21st century risk in which we’re operating. There’s already obligation to report and what is material. That’s already material.
Radha Curpen:
But then in addition to that, there are sort of ESG aspect of reporting that that regulators are going to clarify. We can expect there to be fines and higher risks of not reporting. And, of course, like we said, litigation, shareholder activism and derivative actions, those kinds of things. There’s also going to be litigation against the government and regulators by companies and anti ESG activism groups too. I think we’re saying both sides, and it creates even more clutter where people, they have to be focused on what they are trying to do in that world of ESG and make sure that they understand what they are going to say and what they will do.
Peter Tertzakian:
And I like your word clutter, because that’s how I feel it’s accumulating. And I think this is a subject that’s not going away, and we’re probably going to have to revisit. But I think we’re out of time, Jackie.
Jackie Forrest:
Yeah, we are. But thank you very much for joining, Radha. You really highlighted some of the issues. I think one takeaway for me is that companies are going to have to be a lot more diligent going forward in terms of the promises they’re making and making sure they can back them up. Because they’re going to get a lot more questions and a lot more problems if they can’t than maybe the last three, four years where it’s been a little bit, people are able to make broad statements and not have to back them up.
Peter Tertzakian:
Up. And as a corollary to that or a precursor to that, the takeaway is that companies have to put into place the protocols and walk the talk. And, then from there, they make the commitments. Not the reverse, which is what I think I’ve been seeing is a lot of companies make sort of statements about what they’re going to achieve, but then not really have the organization behind it to delivered on the commitments.
Jackie Forrest:
And Radha talked about everyone in the organization has to be on board and working towards that goal. Having a lot more coordination and communication across the firm, which isn’t that easy really. Well, thank you, Radha, for all your insights. We really appreciate you joining the podcast.
Radha Curpen:
Thank you very much. And don’t forget, ESG is a business tool. Use it as a business tool. Thank you, Jackie and Peter, for this opportunity. I really appreciate this conversation.
Jackie Forrest:
And thank you to our listeners. If you enjoyed this podcast, please write us on the app that you listen to and tell someone else about us.
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