Financial Climate Alex Roth

In the last episode of this show, I had the privilege of talking with Elizabeth Burch and Adam Orford, two law professors from University of Georgia. They helped me to better understand many of the types of climate lawsuits that have proliferated in recent years.

But there are so many varieties of climate litigation that there’s a whole other category we barely touched on, which has special relevance to the nexus of climate and finance. I’m talking about shareholder lawsuits brought under corporate or securities law. As before, I wanted to talk with an expert insider, but someone who has more objectivity and a broader perspective than a lawyer immersed in pending cases. 

My guest today is Emily Strauss. She’s a law professor at UC Law San Francisco. That’s the University of California law school that was formerly known as UC Hastings. She’s an expert in corporate law and securities and financial regulation, and some of her recent scholarly research spcifically explores patterns in climate-related shareholder litigation. I sat down with Emily to learn more about how these lawsuits relate to other types of climate-related shareholder advocacy and other types of climate lawsuits. I wanted to know what opportunities shareholder litigation might create to push corporations toward action on climate, and what limitations they may have as a tool for advancing environmental or social goals. 

Additional resources:
Climate Change and Shareholder Lawsuits (academic paper by Emily Strauss)Is Everything Securities Fraud? (academic paper by Emily Strauss)Climate Change Litigation Databases (Columbia Law School, Sabin Center for Climate Change Law)

In recent years, as climate change has gained attention, there's been a proliferation of climate related lawsuits. They're based on a wide variety of legal theories. Some are brought under federal statutes like the Clean Air Act, others are brought under state statutes. Still others rely on common law, which is so old that it predates the widespread use of fossil fuels. Some of these lawsuits seem mainly symbolic. Others have been brought by state and local governments—inspired by the multibillion dollar tobacco litigation of the 1990s—seeking to hold fossil fuel companies liable for astronomical financial damages.

The Sabin Center for Climate Change Law at Columbia University maintains a public database that tracks climate related litigation. The center reports 97 climate related cases filed just in the first 10 months of 2023, with well over 100 filed each year since 2017. And that's for the U.S. alone.

To better understand all this, I thought about talking with some of the attorneys bringing or defending these lawsuits. But it seemed like a better idea to talk to experts with a more objective viewpoint than an attorney involved directly in a case. I also wanted to understand better where these climate change cases fit into the bigger picture of environmental law. I wanted to learn how they relate more broadly to the use of litigation to bring about change on major societal issues like opioids, or toxic waste or the spread of disinformation.

Today I'm joined by two law professors from the University of Georgia School of Law. Elizabeth Chamblee Burch is an expert in complex civil lawsuits. Among her many publications on related subjects, she wrote a book in 2019, called Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation. Adam Orford’s expertise is in environmental and climate change law and the energy transition. He's litigated complex environmental and energy cases in private practice. And besides his law degree, he has a Ph.D. in energy and resources. 

Other resources:
Climate Change Litigation Databases (Columbia Law School, Sabin Center for Climate Change Law)Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Climate Change, by Naomi Oreskes and Erik M. Conway

The Paris climate agreement was designed to keep Earth habitable through a framework of national emission reduction commitments. But actual binding laws enforcing those commitments are still lagging behind. In response, many corporations have promised to reach net zero emissions voluntarily. Many have released plans of how they intend to do that. And consumers and investors have sought to hold them accountable.

Despite some admirable progress, a lot of corporate commitments are based an incomplete patchwork of emission disclosures. And too often, companies’ climate plans are full of caveats, inconsistencies, and outright greenwashing. Federal governmental action to require rigorous climate disclosures is—at best—slow in coming. 

But California has found a brilliant workaround. If California were a country, it’s economy would be the fifth largest in the world. By passing a state law that affects companies doing business in California, the state can set a standard that companies are held to around the country and the world. 

On October 7, California Governor Gavin Newsom signed a bill called the Climate Corporate Data Accountability Act, championed by State Senator Scott Wiener. The law will soon require rigorous and standardized disclosures for a huge number of companies that do business in California. 

This episode’s guest, Catherine Atkin is an attorney, a climate entrepreneur, and the co-founder of a nonprofit organization called Carbon Accountable. She’s also a CodeX fellow at the Stanford Center for Legal Informatics. State Senator Wiener’s office has described Catherine as the legal mastermind behind the new law. 
SB 353 TextCarbon AccountableCatherine Atkin Stanford CodeX Fellow bio

InnSure is a nonprofit organization that fosters insurance-related innovations to address climate problems. Usually, we think of insurance as a tool for climate change adaptation—and it is. But InnSure also looks at insurance as an indispensable tool to help implement and scale emission-reducing technologies. I wanted to understand better why and how that is. I also wanted to learn about the enormous climate-related business opportunities emerging in the insurance industry, and how these relate to the set of transformative insurance initiatives commonly known as insurtech.

This episode's guest, Christopher Lowell, is a Managing Director at InnSure. He has deep expertise and hands-on experience in the insurance industry. He worked as the Managing Director of Corporate Strategy and Research at Liberty Mutual. Among other insurance roles, he also set up and led an experimental insurance innovation lab inside The Hartford.
https://innsure.org/https://www.linkedin.com/in/christopher-lowell

More than ever before, advocates are pressuring private-sector companies to take action related to climate impacts. One thing that’s increased the potential effectiveness of these tactics is the tremendous concentration of corporate voting power in the hands of a small number of enormous asset managers. And at the same time, huge, secretive, private equity firms are amassing control of privately held companies, or are taking publicly-traded corporations private.  
Harvard Law and Economics professor John C. Coates has just released an insightful and thought-provoking book about the dangers and challenges of these investing trends. During his distinguished career, he was a partner at the leading Wall Street law firm of Wachtell, Lipton, Rosen & Katz, and he served at the U.S. the Securities and Exchange Commission in several roles, including as General Counsel. His new book is called The Problem of 12: When a Few Financial Institutions Control Everything. 
I sat down with John Coates to learn about the many problems stemming from this extraordinary concentration of corporate power. I was especially interested to understand what his arguments mean for the efforts of the activists and consumers pushing corporations to meet climate goals and uphold other standards of environmental and social responsibility. 

Robin Millington is the CEO of the London-based nonprofit financial think tank Planet Tracker. She talks about how her organization uses sophisticated financial tools to make markets more environmentally sustainable.

https://planet-tracker.org/