©2004 Haynes and Boone, LLP Ethics and Sustainability by Jeff Civins* [email protected]...

©2004 Haynes and Boone, LLP

Ethics and Sustainabilityby

Jeff Civins*[email protected]

(512) 867-8477

April 15, 2010

Air & Waste Management AssociationCentral Texas Chapter

Austin, Texas

*Thanks to Walt Shelton for his valuable insights.

© 2004 Haynes and Boone, LLP

Overview

• Corporate Sustainability• Carbon Management• Ethical Considerations

– Legal– Corporate

• Ethics, Sustainability, and Business


What does sustainability mean?• Sustainability means meeting the needs

of the present without compromising the ability of future generations to meet their own needs.

• Sustainability entails:“The continual improvement of business operations to ensure long term resource availability through environmental, socially sensitive, and transparent performance as it relates to consumers, business partners, and the community.”

- U.N. Brundtland Commission Report (1987)


Corporate Sustainability & Corporate Social Responsibility

• The term sustainability as applied to corporations is often used interchangeably with the term “corporate social responsibility (CSR).”

• Both are sometimes described as addressing financial, social, and environmental concerns - - the so-called triple bottom line.

• The notion is that corporations should have objectives that sweep more broadly than making money.


Presently there is no common currency for quantifying social and environmental aspects of CSR and weighing them against each other.


Trends -- Wal-Mart Sustainability Index

On July 16, Wal-Mart, with $406 Billion in revenues in 2009, announced it is developing a “sustainability index” using a sustainability consortium.

It will result in uniform labeling that will focus on:– Energy and Climate (GHG emissions)– Material Efficiency– Natural Resources– People and Communities


Supplier Sustainability Assessment: 15 Questions for Suppliers

Energy and Climate: Reducing Energy Costs and Greenhouse Gas Emissions1. Have you measured your corporate greenhouse gas emissions?2. Have you opted to report your greenhouse gas emissions to the Carbon Disclosure Project (CDP)?3. What is your total annual greenhouse gas emissions reported in the most recent year measured?4. Have you set publicly available greenhouse gas reduction targets? If yes, what are those targets?

Material Efficiency: Reducing Waste and Enhancing Quality1. If measured, please report the total amount of solid waste generated from the facilities that produce your product(s) for Walmart for the most recent year measured.2. Have you set publicly available solid waste reduction targets? If yes, what are those targets?3. If measured, please report total water use from facilities that produce your product(s) for Walmart for the most recent year measured.4. Have you set publicly available water use reduction targets? If yes, what are those targets?

Natural Resources: Producing High Quality, Responsibly Sourced Raw Materials1. Have you established publicly available sustainability purchasing guidelines for your direct suppliers that address issues such as environmental compliance, employment practices and product/ingredient safety?2. Have you obtained 3rd party certifications for any of the products that you sell to Walmart?

People and Community: Ensuring Responsible and Ethical Production1. Do you know the location of 100 percent of the facilities that produce your product(s)?2. Before beginning a business relationship with a manufacturing facility, do you evaluate the quality of, and capacity for, production?3. Do you have a process for managing social compliance at the manufacturing level?4. Do you work with your supply base to resolve issues found during social compliance evaluations and also document specific corrections and improvements?5. Do you invest in community development activities in the markets you source from and/or operate within?


ISO 26000 (Draft) Social Responsibility

• ISO, the International Organization for Standardization, has launched the development of an International Standard providing guidelines for social responsibility.

• The standard is intended to insure that organizations take responsibility for the impact of their activities on society and the environment.

• It provides guidance on conducting activities in a manner that is consistent with the interest of society and sustainable development and is based on ethical behavior and compliance with applicable law.


ISO 26000 (cont’d)

• The standard addresses social responsibility issues related to:– the environment– human rights– labor practices– organizational governance– fair business practices– community involvement– social development– consumer issues


Corporate Sustainability v. Corporate Responsibility

For our purposes, we will use the terms• “corporate social responsibility” or CSR

to refer to the broader concept of the triple bottom line, and

• “corporate sustainability” to focus on environmental aspects, minimizing the company’s environmental footprint, minimizing its impact on future generations


Sustainability as a National Policy

Section 101 of the National Environmental Policy Act (NEPA)

• Declares it the continuing policy of the federal government to, among other things, “create and maintain conditions under which man and nature can exist in productive harmony.”

• Directs federal agencies to carry out their responsibilities so that the Nation may, among other things, “fulfill the responsibilities of each generation as trustee for the environment for succeeding generations.”


Section 102 of NEPA directs that, “to the fullest extent possible,” the

policies, regulations, and laws of the US be interpreted and

administered with NEPA’s policies.


ISO 14000Environmental Management Standards

(EMS)

• ISO developed EMS that focus on policies and management rather than on performance

• The standard contemplates commitment to compliance, continued improvement, and prevention of pollution

• It involves– Planning– Implementation and operations– Checking and corrective action– Management review


EMS includes:

• Eco-Labeling• Environmental auditing• Life cycle assessment• Environmental performance

evaluation• Environmental aspects in product

standards


Aspects of Sustainability

• Waste reduction, reuse, and recycling• Reduction in impacts on environment• Use and generation of less toxic

materials• Reduction in water use• Reduction in energy use• Reduction in use of resources• Carbon management


Presently there is no common currency for quantifying various

aspects of sustainability and weighing them against each other.


Sustainability of Energy Sources

• Fossil fuel energy cannot be sustainable.

• Solar, biomass, wind, and tidal energy are sustainable.

• Nuclear is less sustainable than alternatives but more so than fossil fuels.


What is the relationship of carbon management to sustainability?

• Carbon management is but one aspect of sustainability, but carbon management is the present focus of regulatory attention.

• A carbon-only focus may result in unintended impacts on other aspects of the environment.

• Companies should take a holistic view and consider overall environmental impacts of their activities in the development of their carbon management strategies.


What is meant by the term “carbon”?

• Greenhouse gases (GHGs) are commonly referred to collectively as carbon.

• Carbon is shorthand for carbon dioxide, which is considered to be the most important GHG and which is the GHG to which other GHGs are compared.


Indirect v. Direct Sources of GHGs

• Direct sources of GHGs generally will be subject to regulation, e.g., refineries, power plants, chemical plants.

• Indirect sources of GHGs generally are driven to control carbon by market forces rather than by regulation, e.g., big box retailers.


Examples of voluntary measures to reduce carbon

• Alternative Energy*• Alternative Fuels*• Energy Conservation*• Energy Efficiency*• Recycle/Reuse*• Carbon Treatment• Carbon Capture

– Storage– Beneficial Use, e.g., enhanced oil recovery*

• Carbon Offsets– Controlled Emissions– Alternative Projects

*Of value independent of climate change considerations


Voluntary Measures to Reduce CarbonLow CO2

Emission FuelEnergy Conservation & Efficiency

Product Distribution, Use & Disposal

Carbon Capture

TreatmentCreation or Purchase

of Offsets or Renewable Energy Credits

Carbon StorageBeneficial use,

e.g., Enhanced Oil Recovery

- CO2

- CO2

+ CO2

+ CO2 + CO2

+ CO2

+ CO2

Alternative Energy

Fossil Fuel Energy

Material Reuse & Recycle

Waste Transport & Disposal

Raw Materials & Fuel Transport

Manufacturing

Low CO2 Emission Fuel

orAlternative Energy

+ CO2

- CO2

- CO2

- CO2

Other Transportation-related Options

- CO2


Presently there is no common currency for quantifying carbon offsets and weighing them against each other.


How does ethics relate to sustainability?


From what perspective do we view the concept of sustainability?

• Anthropocentric--what instrumental value does a resource have, i.e., what does or can a resource do for man?– a Judeo-Christian view– a regulatory view, e.g., NRD

assessments focus on, among other things, services a resource provides

• Non-anthropocentric—what intrinsic value does a resource have, e.g., do or should trees have standing? Perhaps more consistent with views of eastern religions.


Morals, Ethics, and Law• Morals--of, pertaining to, or concerned

with the principles or rules of right conduct (by an individual) or the distinction between right and wrong; may be grounded in religion

• Ethics--the rules of conduct recognized in respect to a particular class of human actions or a particular group or culture, e.g., legal or business ethics

• Law--any written or positive rule or collection of rules prescribed under the authority of the state or nation


The Relationship of Morals, Ethics, and Law

Morals

LawEthics


Examples of Differences• It may be moral for a lawyer to disclose a

client’s conduct regarding that client’s involvement in a crime, but it may be unethical.

• It may be legal to eat meat or other living things, but whether it is moral will depend on the individual’s values and whether it is ethical, on the group to which the individual belongs.

• It may have been moral for an individual to engage in a sit-in to protest segregation, but it may have been illegal.


Legal Ethics


Environmental Law involves Public Health and Welfare

• Administrative and civil penalties are based on strict liability.

• Criminal liability for some statutes, e.g., the Clean Water Act, is predicated on simple negligence. See U.S. v. Hanousek, 176 F.3d 1116 (9th Cir. 1999).

• “Responsible Corporate Officials” may be held personally responsible criminally based on their authority to exercise control over a corporation’s activity. See U.S. v. Iverson, 162 F.3d 1015 (9th Cir. 1998).


Ethics and Environmental Law• The ethics rules that apply to the legal

profession should also serve the public interest generally . . .” Issues of Legal Ethics in the Practice of Environmental Law, Irma Russell, ABA SEER (2003) p. xix.

• The practice of environmental law, because it involves public health and welfare, may impose additional ethical responsibilities on lawyers.

• “Environmental laws reflect philosophical values and the need to conserve and protect the environment for its inherent value as well as for utilitarian reasons. Id. at xvi.


A Sampling of Ethical Issues Confronting Environmental Attorneys

• What role does moral judgment apply in resolving ethical issues?

• Do governmental attorneys have greater ethical responsibilities than their peers in private practice because of their mission to protect the public interest? TDRPC §1.12

• What are unique ethical issues in-house counsel face? TDRPC §1.12


A sampling of Ethical Issues confronting Environmental Attorneys

(cont’d)

• Whom does the environmental lawyer represent when the client corporation’s contact is responsible for violations and what reporting obligations does the lawyer have to the corporation? TDRPC §1.12

• What ethical responsibilities/conflicts do environmental lawyers have when they obtain knowledge that the conduct of their client or a condition of which their client is aware may endanger public health or, the environment? TDRPC §§1.02(d) and 1.05(e)

• What ethical responsibilities does an environmental lawyer have when his/her client ignores his/her advice?


A sampling of Ethical Issues confronting Environmental Attorneys

(cont’d)

• What ethical responsibilities does attorney have to court and agency? TDRPC §3.03

• What are ethical issues relating to ex parte communications?See Ethics Opinion 587TDRPC §3.05 Texas Penal Code §36.04


Corporate Ethics


Historical Hierarchy of Corporate Environmental Policies

CorporateSustainability

RiskManagement

ComplianceCompliance focus on avoiding

regulatory liability

Risk Management

focus on avoiding regulatory, common law, and Superfund-type liabilities

Corporate Sustainability

focus on integrating environmental considerations into corporate decision-making with objective of minimizing environmental footprint

ProactiveProactive

DefensiveDefensive


Corporate Ethics

• Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission, corporations are not individuals.

• Corporations are subject to laws that arguably deal with “right and wrong,” e.g., Sarbanes Oxley, but whether they are or should be subject to ethical codes is not clear.

• For example, some say the business of business should be business; others say businesses do have social responsibilities.

• Corporations have responsibilities to shareholders to increase profits; the issue is whether and to what extent they may consider other interests, including those of other stakeholders.


Who are the stakeholders in corporate decision-making?

• Investors• Customers • Non-governmental Organizations

(NGOs)• Lenders• Insurers• Media• Public at Large


Arguments Against CSR/Corporate Sustainability

• A corporation’s focus should be on increasing shareholder value and those other stakeholders, such as governments, individual, and NGO’s, are better equipped to address social and environmental concerns.

• Social and environmental benefits are more likely to be realized if corporations focus on what they do best.

• There is the potential for legal exposure if a company’s social and environmental programs undercut its ability to profitably conduct its core business or are inconsistent with shareholders’ reasonable expectations, based on prior representations.


Arguments For CSR/Corporate Sustainability

• Socially and environmentally progressive policies positively affect the bottom line--in numerous ways: – preempting of potentially burdensome

regulatory requirements; – improvement of public image; – increased sales, investment, productivity, and

employee satisfaction; – development of new business opportunities;

and – cost-savings in reducing energy demands and

environmental risks and expenses.• It’s the right (ethical) thing to do.


NY Times (1/19/2008) article suggests:

• There is only a very small correlation between socially responsible behavior and good financial results and

• “Companies can do good and do well, even if they don’t do well by doing good.”


• To realize business advantage of these policies, corporations must publicize them.

• But there are risks associated with public representation.

• To the extent a company falls short of written public commitments, including commitments regarding suppliers, there is the potential for regulatory and private litigation based on, among other things, fraudulent statements involving securities, as well as for negative publicity and reputational risk.

Risks associated with Green Marketing


Reputational Issues Associated with Green Marketing

U.S. NEWS DECEMBER 30, 2008

Green Goal of 'Carbon Neutrality' Hits Limit By JEFFREY BALL

ROUND ROCK, Texas -- Computer giant Dell Inc. said this summer that it has become "carbon neutral," the latest step in its quest to be "the greenest technology company on the planet."

What that means, and what it doesn't, may surprise Dell customers and other consumers who have been bombarded with bold environmental promises from major corporations.

In the two years since Al Gore's movie, "An Inconvenient Truth," helped make climate change a marquee issue, companies from Timberland Co., the shoe maker, to News Corp., the owner of The Wall Street Journal, have promised to become "carbon neutral."

Dell's Carbon Footprint

The term may suggest a company has reengineered itself so that it's no longer adding to the carbon dioxide and other greenhouse gases scientists say are contributing to climate change. The experience of Dell, one of the few multinational corporations to claim it already has achieved carbon neutrality, shows the reality often falls short of that ideal.

DECEMBER 31, 2008, 8:28 A.M. ET

How Green Is Apple? By BEN CHARNY | Dow Jones Newswires

SAN FRANCISCO – Apple Inc.'s eye-catching logo - an apple with a bite taken from it - has come in many colors in the past. Now, the iconic computer company is trying to prove its commitment to the color green.

In recent advertising, the Cupertino, Calif., company presents itself as an environmental leader. Apple's Web site bills its new line of MacBook computers as "the world's greenest family of notebooks." It now makes iPods and iPhones free of polyvinyl chlorides and brominated flame retardant, and it's in the final stages of making all of its products without bromine and chlorine. Both chemicals have been criticized for creating toxic byproducts.

Competitors and environmentalists, however, say Apple's green efforts have less to do with cleaning up its products and manufacturing and more to do with marketing. In a recent blog posting, a senior executive at Round Rock, Texas-based Dell Inc. said he was "surprised" by Apple's claims of environmental-friendliness. Environmental groups, like Greenpeace, point to surveys ranking Apple below other computer makers, such as Dell and Hewlett-Packard Co. in green practices.

"Apple is... guilty of using 'green' as a marketing ploy, rather than making green a core part of their business practices," said Stephen Stokes, vice president of business and climate change at AMR Research Inc.


Legal risks associated with green marketing?

•State Deceptive Trade Practice Acts/Common Law, e.g., Nike v. Kasky

•FTC – Green Guides•SEC – Interpretive Guidance



Conclusions

• Sustainability may include economic, social, and environmental aspects

• Environmental aspects of sustainability include a number of factors.

• Corporate sustainability may make good business sense.

• Sustainability may be an ethical imperative.• There are business and legal risks

associated with a commitment to sustainability.


Ethics and Sustainabilityby

Jeff [email protected]

(512) 867-8477

April 15, 2010

Air & Waste Management AssociationAustin, Texas

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