Impact Voices | June 3, 2024

Dear Alleged Co-Colluders: Let’s really make common cause for climate action 

Andrew Behar

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Guest Author

Andrew Behar

Editor’s note: The shareholder representative nonprofit As You Sow has borne the brunt of the coordinated backlash against corporate and investor action on climate, diversity, and ESG. At stake is the future of fiduciary duty and the understanding of material risks. ImpactAlpha has invited As You Sow CEO Andy Behar to chronicle the action in Fiduciary Future, a new series of dispatches from the front lines. Have a reaction, or a dispatch of your own? Drop us a note

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To our alleged co-colluders:

This appeal goes out to the leaders of more than a dozen groups that have been brought together by the Judiciary Committee of the US House of Representatives for purported antitrust transgressions relating to shareholder advocacy on climate change.

It appears that the Judiciary Committee is specifically trying to discourage our coordination because they see it as the key to reducing climate risk for the entire global economy. Therefore, I propose that the 14 of us actually do work together, with total transparency, to accomplish the task that the committee has laid before us. 

Some background: The letters from the House Judiciary Committee announcing the investigation and demanding documents began on December 6, 2022. Including follow-up subpoenas, demands to appear for testimony and threats of contempt of Congress, these have continued through May 2024. 

According to the committee, each of the 14 organizations, “appears to have colluded with other institutional investors to work with the companies in which [they] invest” to deliver net zero greenhouse gas emissions by 2050.

The alleged antitrust violations: We spoke to employees at companies that we own, and possibly to each other, about how to avoid risk.

To date, the 14 groups have delivered to the committee approximately 250,000 documents totaling over 1.5 million pages. Several of the organizations, including As You Sow, which I lead, have provided voluntary testimony. Between myself and As You Sow’s president, we were interviewed in person for over 14 hours by committee attorneys. It seems that the committee has enough information to perform any legislative purpose by writing a bill. However, they must need more: there is a public hearing planned for mid-June.

The list of alleged co-colluders is essentially a proxy for the entire global economy, with combined assets totaling well over $105 trillion – equivalent to  global GDP:

Shareholder coordination is well within the law. In fact, the Trump SEC in 2020 issued new rules explicitly endorsing shareholders’ coordinated action, noting that “shareholders engage directly with each other through various channels,” allowing them to identify issues “important to the broader shareholder base” and bring them to companies’ attention through the shareholder proposal process. 

In the same release, the Trump SEC also noted the likely cost savings to companies and shareholders alike resulting from the “efficiency” promoted by shareholder coordination.

The costs of climate inaction

We aren’t sure what world the Republican-led House Judiciary Committee is living in, but it seems to be unrelated to Americans’ everyday lives. Every U.S. citizen is already bearing the costs of climate inflation each time they checkout at the grocery store. Millions along the coast from the tip of Texas to North Carolina cannot get homeowners insurance due to sea-level rise. 

Meanwhile the oil and gas companies, which the committee seems determined to protect, are price-gouging their way to record profits at consumers’ expense. In addition, they are spending these profits on a propaganda campaign to convince the world that change is impossible.

Let’s clearly establish the costs of inaction. Over the last decade, climate change has cost the world economy $16 million dollars per hour. Americans alone are suffering catastrophes that cost $1 billion every three weeks, with an average of $150 billion in damages

Just four oil and gas companies, including ExxonMobil and Chevron, together generated $1 trillion in sales in 2022, due in part to cartel-manipulated gas prices. Exxon, the largest US oil producer, reported an epic $55 billion in profits for 2022. 

While oil company profits have stabilized at lower levels in 2023, most oil and gas companies are still reaping tens of billions in profits annually, while Americans suffer high prices at the gas pump and struggle to heat their homes affordably. 

This investigation is not about writing legislation. It is an attempt to intimidate and divide us. Continuing business as usual and not coordinating our efforts to address this situation is the real violation of our fiduciary duty. 

The Judiciary Committee did get one thing right: If we work together, we indeed do have the power to correct this historic threat to the global economy and to future generations. We still have time to bring about the clean energy future that we all know is both necessary and possible. 

The committee has brought us all together and defined our common cause.

Now we must stand shoulder-to-shoulder in transparent and collective action that will benefit all stakeholders, fulfill our fiduciary duty, and enhance the freedom of all Americans.

Yours truly,

Andrew Behar

As You Sow

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Andrew Behar is CEO of As You Sow, a non-profit leader in shareholder advocacy. Founded in 1992, As You Sow harnesses shareholder power to create lasting change and align investments with values.