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For a growing number of businesses, implementing smart environmental policy aids legal compliance and promotes competitiveness. Gone are the days when the only companies concerned about environmental laws were heavy manufacturers. Recent developments in both the U.S. government and private corporate sectors have ushered in a new era of corporate sustainability, in which complying with environmental regulations is moving from a recommendation to a mandate for a wide range of businesses. Just as organizations must develop and enforce policies in the areas of governance, employment, and safety, many companies and public agencies are now required to track and report sustainability measurements to ensure legal compliance. Moreover, many forward-thinking companies are already implementing environmental policies to stay competitive, even though it is not yet a legal requirement. In-house counsel should be aware of the new corporate sustainability requirements and recommendations to advise organizations how to develop policies, avoid liability and succeed in the new green economy.

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While 2010 began without a comprehensive U.S. federal climate law or legally binding international agreement, regulatory action and negotiations are ongoing. Despite the failure of the United Nations Climate Change Conference in Denmark last December to produce any binding greenhouse gas emission ("GHG") reduction laws, nations will continue working toward a global climate treaty. In the U.S., a bi-partisan bill being sponsored by Senator John Kerry (D-Mass.) could succeed in bringing the parties together and finally getting a new climate law passed.

In the meantime, businesses cannot afford to sit back and wait for definitive law in this area, since a new federal Executive Order, EPA regulations, SEC guidance and private sector programs have gone into effect which apply to a wide variety of companies and public agencies. All organizations that are subject to these new requirements should be incorporating them into their planning and taking steps to ensure compliance.

I. Executive Order 13514

On October 5, 2009, President Obama signed Executive Order 13514, titled Federal Leadership in Environmental, Energy, and Economic Performance. This Executive Order requires all federal agencies to inventory their GHG emissions, set targets to reduce their emissions by 2020, and develop a plan for meeting a wide range of goals for improving sustainability, such as increasing energy and water efficiency, reducing waste, reducing fleet petroleum consumption, supporting sustainable communities, developing and maintaining high performance buildings, and leveraging Federal purchasing power to promote environmentally-responsible products and technologies.

Other environmental targets in the order include a 30% reduction in fleet gasoline use and 26% boost in water efficiency by 2020, and a 50% waste recycling and diversion rate by 2015. The 2030 net-zero-energy building requirement must also be implemented under the order. Each agency must appoint a senior sustainability officer responsible for complying with the order. The Chair of the Council on Environment will report agency goals and results directly to the President.

"As the largest consumer of energy in the U.S. economy, the Federal government can and should lead by example when it comes to creating innovative ways to reduce greenhouse gas emissions, increase energy efficiency, conserve water, reduce waste, and use environmentally-responsible products and technologies," President Obama said in a statement.

The Executive Order was intended to jumpstart a transition to a clean energy economy as climate change legislation works its way through power bi training london Congress, saving taxpayers money in the process. The order will have a significant impact based on the Federal government's sheer size: it occupies nearly 500,000 buildings and operates more than 600,000 vehicles.

Another key component of the Executive Order is a green procurement policy requiring 95% of new federal contracts and acquisitions to meet sustainability requirements which promote environmentally responsible products and technologies. This also carries a lot of weight due to the government's huge buying power, which exceeds more than $500 billion spent on goods and services annually. The Executive Order charges the General Services Administration ("GSA") with exploring the feasibility of tracking vendor GHG emissions. Recommendations could include requiring vendors to register with a voluntary GHG emissions registry and disclose their efforts to reduce emissions. Preferences or other incentives could be given for "products manufactured using processes that minimize greenhouse gas emissions."

For the purchase of electronic products and services, the Executive Order requires the GSA to ensure that 95% of new contract actions, task orders, and delivery orders for products and services (excluding weapon systems) are energy efficient (ENERGY STAR® or FEMP-designated), water efficient, bio-based, environmentally preferable (Electronic Product Environmental Assessment Tool (EPEAT) certified), non-ozone depleting, contain recycled content, or are non-toxic or less-toxic alternatives where such products and services meet agency performance requirements.

The GSA announced in late January 2010 that it had already drafted energy service agreements with 18 companies to reduce its consumption through energy audits, monitoring and use of renewable energy.The GSA also took steps to make the federal fleet more efficient with the purchase of thousands of new vehicles last year using $210 million in stimulus funds. Roughly 6,500 of the vehicles -- a mix of hybrids, flex-fuel and four-cylinders -- are earmarked for the U.S. Postal Service, which operates the country's largest fleet of alternative fuel vehicles.In 2008, the GSA estimated its purchase of 15,000 seats of power management software would save up to $750,000 annually.

Eventually, all federal purchasing will incorporate the measurement of GHG emissions as a contract requirement. The first step, which is part of Executive Order 13514, is the creation of a voluntary GHG emissions reporting system for government contractors and vendors. Contractors' (and subcontractors') ability to measure and minimize their GHG emissions and provide energy efficient products and services will become an important factor in winning government contracts.

II. SEC Guidance on Climate Change Disclosures

The U.S. Securities and Exchange Commission ("SEC") issued Interpretive Release No. 33-9106 on February 2, 2010 in order to provide guidance to public companies of the agency's disclosure requirements regarding climate change issues. The guidance, which became effective immediately, applies to all public companies.

The release doesn't create new disclosure requirements or modify existing disclosure requirements, but rather, was issued for clarification purposes. Specifically, the guidance addresses four areas that may trigger disclosure obligations under existing SEC requirements:

(1) whether the impact of proposed or existing climate change laws and regulations in the U.S. and other countries may materially affect the company's financial condition or operations;

(2) whether international climate change accords or treaties will impact its business;

(3) whether a company is likely to face indirect opportunities or risks arising out of legal, technological, political and scientific developments regarding climate change (such as changes in demand for the company's goods/services, increased competition, or reputational damage); and

(4) whether a company faces potential physical impacts of climate change on its business (such as disruption to operations caused by weather or supply interruptions, increased insurance, or water availability and quality).

The SEC guidance provides that these climate change disclosures may be required under the Description of Business (Item 101), Legal Proceedings (103), Management's Discussion and Analysis (303), and Risk Factors (503(c)) sections of companies' filings under Regulation S-K.

The SEC noted its concern that some companies had already been providing climate change information on a voluntary basis to third parties, and it wanted to ensure that similar disclosures were in SEC filings as may be required under SEC regulations. Independent organizations such as The Climate Registry and The Carbon Disclosure Project maintain corporate climate change data, while the most dominant reporting regulations are those of the Global Reporting Initiative (GRI). Launched in 1997 with the goal of "enhancing the quality, rigor, and utility of sustainability reporting," the GRI develops criteria that could eventually serve as the basis for generally accepted sustainability reporting standards. As of 2008, more than 1,000 companies from more than 60 countries registered with the GRI and were issuing corporate sustainability reports using its reporting framework.

The SEC expressly indicated in the comments to the guidance that it will be focusing on climate change disclosures in its review of company filings. As a practical matter, public companies are well advised to treat this guidance as binding; if they haven't disclosed climate risks in the past, they'll need to begin establishing disclosure procedures for all future relevant filings using these measures as a roadmap.

III. EPA Mandatory Greenhouse Gas Reporting Rule

Beginning on January 1, 2010, a mandatory EPA rule went into effect, which requires that all major GHG emitters track and report their GHG emissions data under a new system. The new rule applies to industries or facilities that emit