Symposium: Corporate Governance and Climate Change

James Fanto (Brooklyn Law School)

"Anticipating Crises: The Adequacy of Risk Management in Finance and Environmental Studies"

Professor Fanto will consider the adequacy of risk management systems to anticipate, and to plan appropriate responses for, catastrophes. He will lookat risk management in two contexts: (i) risk management in several financial institutions that were critically involved in the ongoing financial crisis, and (ii) risk management in recent public policy discussions regarding global warming. Professor Fanto’s paper will explore why, in both cases, the systems fail to identify, or at least to galvanize senior decision-makers and policy-makers to acknowledge, the risk of a catastrophic event (in one case, the freezing of liquidity and, in the other, an acceleration of global warming). He will consider whether the failures lie in risk management design; in cognitive, social psychological, or organizational limitations; or in cultural assumptions about technology and human incentives.

Herman F. Greene (Greene & Franklin, PLLC)

"Hot, Crowded, and Not-So-Flat: The Changing Climate for Corporations"

Mr. Greene's article is on the factors that will bring about a radical transformation of corporate governance over the next twenty years. The current economic crisis may be seen as postponing corporate reforms regarding social equity and the environment or as accelerating them. Mr. Greene's paper will take the position that the current crisis represents the collapse of the classical liberal and neoliberal economic underpinnings of the modern corporation. Further the increased role of the government in the economy presages a larger government role on a transnational and national basis concerning equity and the environment. Further corporations, civil society and government are emerging as equal and balanced partners. Enlightened corporate leadership will welcome the opportunity to create a viable future for commerce. Mr. Greene will trace how self-regulation and voluntary corporate social responsibility may give rise to a widely recognized set of corporate duties, both imposed and voluntarily undertaken. The issue will become how to bring into being a common framework to level the playing field in a new global economic order based on equity (fairness), environment (ecology) and economics in pari materia.

Thomas Joo (UC Davis School of Law)

"Global Warming and the Management-Centered Corporation"

Professor Joo's article discusses how can corporate governance analysis help develop strategies to combat global warming. Shareholder activism holds little promise. Shareholders have little incentive to pursue social interests through the corporations, and they have little direct power over corporate policy in any case. Power is heavily concentrated in upper management. Two current trends may be poised to take advantage of this fact. First, as social norms change to include concern about global warming, it may be easier to attach personal moral accountability on individual corporate directors and executives than on dispersed, faceless shareholders. Second, the emerging threat of patchwork regulation by state laws and lawsuits may encourage corporate management to cooperate in the design and implementation of a comprehensive federal regulatory scheme.

Janet Kerr (Pepperdine University School of Law)

"Implications of Climate Change on Corporate Governance with Respect to Enterprise Risk Management"

Professor Kerr will consider how ERM policies are currently being expanded to account for climate change. She will discuss both the financial and non-financial risks associated with climate change and will stress that how companies deal with these risks in our current economic environment is especially important.

Dalia Tsuk Mitchell (The George Washington University Law School)

"The End of Corporate Law"

Corporations are powerful entities, capable of harming the environment and modern society more broadly. Yet, as Professor Tsuk Mitchell will argue, in the course of the twentieth century, the legal community has made corporate law, specifically the rules applicable to the allocation of power between directors, executives, and shareholders, ineffective as a means of regulating corporate power. In so doing, it also impeded attempts at federal regulation outside corporate law. Put more bluntly, Professor Tsuk Mitchell will argue that in the course of the past century, corporate law has been used first to legitimate corporate power and, then, to exempt those exercising it from liability. Making corporations responsible for their harmful conduct thus requires, first and foremost, bringing an end to corporate law.

Perry Wallace (American University Washington College of Law)

"Climate Change, Corporate Strategy and Corporate Legal Duties."

As a result of the current consensus about the valid threats posed by climate change, governmental, economic and social structures and functions are now being revised to control global warming. Given this reality, a growing number of companies have begun preparing in advance for the new regulatory order. They have been establishing green house gas (GHG) management policies and practices, based on larger corporate strategies that best promote company interests. Professor Wallace's article explores the role of corporate and securities law duties in corporate strategic planning for GHG management and compliance.

Ben Cashore
(Yale University School of Forestry & Environmental Studies)

Kelly Levin
(International Institute for Sustainable Development)

Anne Kelly (Ceres)