Board Oversight in ESG—Evolving Trends in the Era of Increasing Disclosure Requirements

August 2022
Citation:
52
ELR 10637
Issue
8
Author
Margaret E. Peloso and Chloe E. Schmergel

In Caremark and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective Caremark EESG Strategy, Leo Strine and co-authors frame a board’s duty of oversight for environmental, social, and governance (ESG) issues in light of the common-law duties articulated under Caremark. The landmark Caremark decision articulated that corporations and their directors have a duty to implement and monitor compliance programs to ensure that the company honors its legal obligations. However, a number of recent proposed rules from the U.S. Securities and Exchange Commission (SEC) signal that ESG in the United States has reached an inflection point—moving from discretionary actions to regulatory ones. This Comment uses the SEC’s recent proposal, The Enhancement and Standardization of Climate Related Disclosures for Investors, to examine how the shift to regulatory ESG may impact the board’s oversight of ESG issues, potentially rendering Strine et al.’s Caremark framework obsolete.

Margaret E. Peloso is a Partner at Vinson & Elkins, LLP, in Washington, D.C., where she also serves as Lead Sustainability Partner. Chloe E. Schmergel is an Associate at Vinson & Elkins, LLP, in Houston, Texas.

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