The Securities and Exchange Commission’s Division of Corporation Finance (Division) published a sample letter with comments that the Staff intends to issue to public companies regarding their climate change disclosures—or lack thereof—in SEC filings. As explained in a prior Mayer Brown post, Commissioner Lee, when she was Acting Chair of the SEC earlier this year, directed the Staff to increase its attention on the ways in which public companies implement the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change, which provides direction to companies regarding the SEC rules that may require disclosure about climate change, despite the fact that climate change is not explicitly referenced in the existing rules. The SEC’s disclosure requirements are largely principles-based and may require different information from different companies, including climate change-related information.
The sample comments could apply to many companies, and request analysis, as well as disclosure, to the extent material. As an example, one comment states:
We note that you provided more expansive disclosure in your corporate social responsibility report (CSR report) than you provided in your SEC filings. Please advise us what consideration you gave to providing the same type of climate-related disclosure in your SEC filings as you provided in your CSR report.
While the SEC’s rule list indicates that a climate change disclosure rulemaking is on the near-term agenda, no new rules have been adopted or proposed yet. Accordingly, the sample comments are qualified to explain that revised disclosure is only required to the extent material. That said, companies should be prepared to provide a materiality analysis in response to SEC comments.
Regardless of whether companies receive climate change-related comments from the Staff, they should re-read the 2010 Guidance Regarding Disclosure Related to Climate Change and evaluate whether any of the topics are applicable. Companies should also ensure that they have effective disclosure controls and procedures in place to facilitate disclosure of material climate change information in their SEC filings.