Key highlights from June 2022 in the sustainability space.
Businesses and the fundamental right to abortion. On June 24, the US Supreme Court reversed the landmark Roe v. Wade decision, thereby ending the constitutional right to abortion that had been upheld for nearly half a century. With immediate implications in over a dozen states, businesses have taken the floor to mitigate the impact of this decision on their employees. Patagonia, L’Oréal USA, JPMorgan and Microsoft, to name a few, have offered to provide travel benefits for employees living in states banning the procedure.
Greenwashing in the hot seat. A French watchdog filing a complaint against Adidas and New Balance, the Norwegian Consumer Authority finding marketing based on HIGG Transparency Program misleading, the SEC investigating Deutsch Bank, BNY Mellon and Goldman Sachs Asset Management on ESG criteria compliance … the recent rise in enforcement actions and litigations coincides with a shift of ESG issues from marketing to legal and compliance teams.
OECD Watch reports on NCPs’ failures. In its annual ‘State of Remedy’ report, the global civil society network finds that National Contact Points (NCPs) continue to fail to facilitate effective remedy outcomes for complainants. While only 2 of the 22 cases concluded in 2021 by NCPs reached full agreement, OECD Watch finds that not a single case resulted in a directly improved situation on the ground. The report offers an apparently necessary reminder that one of the roles of NCPs is to “assist in the resolution of issues between the parties”, which may not be resolved solely by forward looking steps to prevent similar non-compliance in the future. Rather, assisting to resolve issues raised in a complaint before an NCP requires “examining the adequacy of past HRDD conducted by companies and seeking to facilitate remedy for any harms arising from such non-compliance.” Also of note, the network recommends that the OECD Guidelines be updated to ensure their continued relevance and the effectiveness of NCPs.
Uyghur Forced Labor Prevention Act (UFLPA) comes into effect – On June 21, the UFLPA, which was signed into law by President Biden on December 23, 2021, came into effect. It establishes a rebuttable presumption that the importation of any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China, or produced by certain entities, is prohibited and that such goods are not entitled to entry to the United States. In effect, the Act requires companies that import goods from China’s Xinjiang region to provide “clear and convincing evidence” that no component was produced with forced labor. An official guidance for importers is available on the CBP website.
U.S. Supreme Court ruling limits EPA’s authority to regulate carbon emissions – In West Virginia et al. v. EPA et al., which was argued back in February, the Supreme Court held that the EPA did not have the authority to devise emissions caps. In a powerful dissent, Justice Kagan wrote: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb powerplants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”
Human rights and new technologies – In an official address to a panel on good governance in protecting human rights during and after Covid-19 pandemic, Nada Al-Nashif, UN Deputy High Commissioner for Human Rights announced that her Office was “developing UN system-wide guidance on the application of a human rights-based approach to the use of new technologies, complementary to the existing Guiding Principles on Business and Human Rights”. She also made a number of recommendations to governments as they work on fulfilling their duty to protect citizens against abuse and misuse of digital technologies. These include the need to place human rights “at the heart of tech governance”, and to “systematically carry out human rights due diligence with digital technologies in order to prevent and mitigate adverse impacts.”