2022 will be the year of green transition: Cyril Shroff, Richa Roy

There is therefore certainty about the need for ambitious actions despite prevailing uncertainty regarding the timing and nature of impacts of climate change. The financial sector—as the nerve centre of the economy—bears a special responsibility to drive adoption of sustainability as a core business practice.

The Reserve Bank of India (RBI) joined the central banks’ and supervisors’ Network for Greening the Financial System (NGFS) as a member in April. It released a statement indicating the integration of regulatory priorities with those of climate change, identifying vulnerabilities in its supervised entities’ balance sheets, integrating climate-related risks into financial stability monitoring.

Separately, the Indian Banks’ Association (IBA) released the National Voluntary Guidelines for Responsible Financing, laying down broad principles towards “integrating ESG risk management into financial institutions’ business strategy, decision-making processes and operations”.

In 2022, the RBI could consider specific disclosure standards for banks and their borrowers, a possible audit framework to ascertain the veracity of such disclosures, as carried out in the CBI Initiative or EU Green Bonds disclosure framework. The central bank could consider adopting a scheme similar to the ‘On Tap Targeted Long-Term Repo Operations (TLTRO)’ for enhancing liquidity in the green sector. Under this scheme, banks and NBFCs can be mandated to deploy this liquidity in green and blue bonds, in addition to extending bank loans and advances to green projects that are critical for development, including supporting the electronic charging station infrastructure and MSMEs working on innovative green projects.

Given the RBI’s increasing focus on technology, it could consider deploying technology to widely diffuse green finance. A green digital platform can be designed to bring greater efficiency and transparency across the entire lifecyle of any other green instrument, using artificial intelligence, machine learning, RegTech and SupTech to ensure licensed institutions can comply with regulation, and increase transparency apart from ensuring the delivery of the ESG covenants and other green finance metrics built into the financing documents of various instruments through the combination of technologies such as blockchain, smart contacts and the Internet of Things. Blockchain can be leveraged to distribute such information to investors in a timely manner.

The RBI could mandate banks and NBFCs to deploy liquidity in green and blue bonds, in addition to extending loans and advances to green projects

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Sustainable securities regulation

The Securities and Exchange Board of India (Sebi) has taken initial steps to increase transparency in the green finance sector to enhance investor confidence. In 2017, it issued a circular on ‘Disclosure requirements for issuance and listing of green debt securities’, detailing the disclosures that an issuer has to make in its offer document, and after commencement of the project financed by green instruments. These additional disclosure requirements were prescribed in order to attract the global capital pool specifically reserved for investment in green and ESG-compliant projects. The indicative list of projects that require such disclosures include renewable and sustainable energy, clean transportation, climate change adaption, energy efficiency, and biodiversity conservation. This supplemented an existing requirement mandating listed companies to include disclosures pertaining to the opportunities, threats, risks, and concerns as part of ‘Management Discussion and Analysis’ in their annual reports under Regulation 34(3) of the Sebi (Listing Obligation and Disclosure Requirements) Regulation, 2015. Earlier in 2021, the comprehensive Business Responsibility and Sustainability Reporting (BRSR) framework, which replaces the erstwhile Business Responsibility Reporting framework, mandated the top 1,000 listed companies by market capitalisation to make necessary disclosures regarding sustainability compliance.

Climate change and SC jurisprudence

Section 166(2) of the Companies Act, 2013, envisions directors to have regard to a triple bottom line—directors do not only owe a duty to shareholders but also to the environment and the community. A recent opinion by senior counsel Shyam Divan issued to the Commonwealth Climate Law Initiative unequivocally provides that directors must incorporate climate change-related risks within their duties under Section 166. A judgment of the Supreme Court of India from 2021 bears this out. MK Ranjitsinh & Ors versus Union of India & Ors delivered in April, concerning the critically endangered Great Indian Bustard, became the first ruling of the apex court to explain the broad scope of directors’ duty to the environment under section 166. The ruling states that Section 166 does not hierarchically order the duties owed by directors to the company… that is shareholders, environment and community are on the same plane. The court further held that high costs of adopting mitigation measures would not deter it from passing suitable directions to save the bird from extinction, thereby implying that if an activity is in the financial interest of the company but to the detriment of the environment, it may contravene section 166.

A situation where the furthering of financial interest of a corporation results in aggravating climate change, it may similarly transgress section 166. Given this, it is incumbent on the directors to set up mechanisms for assessment of climate risk to discharge their duties under the Companies Act. While the sequitur for violation of the duties under Section 166 are certain fiscal penalties, the ministry of corporate affairs by way of a circular dated March 2, 2020, has helpfully clarified in section 149(12) of the Companies Act, 2013, that independent directors and non-executive directors would be liable only in respect of an act or omission by a company which occurred with their knowledge, attributable to board processes, and with their consent, or where they have not acted diligently. However, a decision such as that in the case of the bustard has meant that directors and boards must put in place processes to demonstrate that relevant questions were asked and possible climate risks were mitigated for all board decisions.

Under section 245 of the Companies Act, 2013, it has been stated by scholars that India has enacted one of the most robust private enforcement regimes for securities fraud violations. Umakanth Varotill, associate professor, faculty of law, National University of Singapore, in a white paper titled ‘Directors’ Liability and Climate Risk’ states that in the context of climate change in order to initiate action under section 245, apart from meeting threshold requirements, all that petitioning shareholders need to establish is that the breach of directors’ duties results in prejudice to the company or to shareholders. This provision cannot be used by other stakeholders identified in Section 166 currently, since it can only be initiated by a shareholder.

The duty of directors of a corporation to the environment will increasingly be tested within India and across jurisdictions, and the law will evolve and expand through judgements. Companies and directors must be prepared to put in place water-tight processes to defend the sustainability and ‘greenness of their actions’.

A new green paradigm

The year 2021 marked 50 years of Milton Freidman’s influential essay: ‘The social responsibility of business is to increase its profits.’ This is the year that has established that businesses can only make profits if they are also responsible to stakeholders, the environment and the community. The year 2022 will be the year when ESG will be embedded not just in law and regulation, but business plans and culture.  

Cyril Shroff is managing partner and Richa Roy is partner at Cyril Amarchand Mangaldas