Companies walking biodiversity liability tightrope says report

Firms who fail to transition to a sustainable economy face renewed liability risks according to a new report from law firm Clyde & Co and the Global Resilience Partnership.

The two organisations have released their Biodiversity liability and value chain risk report which highlights how the requirement to protect biodiversity and respond to the associated natural capital reporting and compliance standards are set to become the next ESG challenge for global businesses, raising significant liability and litigation risks.

Clyde & Co partner, Nigel Brook, explained: “Businesses will see new physical, regulatory, market and reputational risks – all of which are compounded by the hyper-connectivity of global value chains. The consequences of not managing these risks will play out in terms of inability to attract finance, do deals and ultimately in damage to market value. Insurers will face scrutiny of the biodiversity risks and impacts of their underwriting and investments. Biodiversity loss will lead to write-downs and write-offs in impacted business lines, increasing claims and rising premiums.”

The report said wide-ranging value chain due diligence standards of care are coming to the fore and will be in place in many jurisdictions by 2024. At the same time, new standards in nature-related risk reporting will be embedded into mainstream corporate reporting standards.

A global framework for nature-related disclosures (through the Taskforce on Nature-related Financial Disclosures – TNFD) will be trialled this year. Following the climate disclosures playbook, investor pressure will lead to adoption, with mandatory reporting regimes to follow.

“In the EU, the proposed Directive on Corporate Sustainability Due Diligence is expected to be adopted later this year and will require companies with significant turnover in the EU to understand whether value chain activities are having an adverse impact on biodiversity, as well as other environmental harms and human rights abuses,” said the report. “These duties will extend to any part of a value chain where there is an ‘established business relationship’, not just direct suppliers. Building on similar mandatory Human Rights and Environmental Due Diligence (“mHREDD”) legislation in France and Germany, the Directive will require companies to take action to prevent, mitigate or end adverse impacts. The Directive will create a civil liability regime, and national administrative authorities will be empowered to levy fines for non-compliance. As with other far-reaching EU legislation, like GDPR, the effects will be transmitted through value chains to corporates globally. Member States will have two years to implement the Directive, with harmonisation expected by 2024.”

Clyde & Co senior associate, Wynne Lawrence, added: “In many ways, climate change wrote the playbook here. Like the climate, the biosphere is a planetary boundary we endanger at our peril. The economy is wholly dependent on a healthy biosphere and there are many initiatives to translate that structural material risk into corporate decision-making.

“There are ever-rising standards of care for biodiversity risk assessment, monitoring and disclosure. At the same time, courts are increasingly willing to look beyond corporate structure at group companies and value chain partners.”

Brook warned that the liability issues are already a reality.

“We have seen the first cases be brought under existing mandatory due diligence standards in France,” he explained. “Courts in the UK, Netherlands and Canada have found parent companies can be responsible at law for the actions of their foreign subsidiaries. These developments will raise the bar for responsible business conduct in the biosphere.”

Nathanial Matthews, CEO of the Global Resilience Partnership, said: “Nature has been providing its ecosystem services free of charge with economic models not properly accounting for nature’s contributions to people and planet, or for the true costs of pollution and environmental degradation. As a result of ignoring the importance of the natural world and our impacts upon it, we are now facing a biodiversity crisis that will reverberate across society and economies.”

Brook, concluded: “Companies that fail to anticipate the scale of the transition to a sustainable economy will find themselves exposed to liability risk. Businesses will need to stay nimble and anticipate incoming investor and regulatory pressures, as well as rapidly changing procurement priorities for value chain partners.”

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