Partner Sydney
"When announcing changes to ESG policies, targets and goals, companies should prepare for the worst-case scenario: that their focussed discussion points will be ignored or downplayed."
As one of the very few airlines to publicly set emission reduction targets, and as one of the first airlines to withdraw its 2030 targets, Air NZ’s announcement attracted disproportionate interest relative to the actual impact of the withdrawal of these targets. The resulting flurry of articles, opinions and commentary in conventional and social media is a stark reminder that decisions on ESG-related issues, such as emission reduction targets, cannot be made or implemented discretely and away from the public glare of conventional and social media attention and focus.
This also highlights the importance of carefully worded public statements on ESG. Campaigners, commentators and journalists will compare current statements to previous statements on ESG policies, targets and goals. It is no surprise that many articles referred to the August 2022 Air NZ announcement, which implemented the 2030 emission reduction targets, as the starting point for their analysis of the 30 July announcement. Companies which make changes to their publicly stated ESG policies, targets and goals must be prepared to defend the changes and to respond to criticism of these changes, particularly where the changes are interpreted as a withdrawal from or moderation of their previously stated ESG policies, targets and goals. The Air NZ announcement appears to anticipate this criticism by reference to ‘a new near-team carbon emissions reduction target’. The omission of any reference to this in many of the more critical articles and commentaries demonstrates that, when announcing changes to ESG policies, targets and goals, companies should prepare for the worst-case scenario: that their focussed discussion points will be ignored or downplayed.
The more critical commentary and analysis does not take into account the reality of ESG policies, targets and goals, namely that they are and must be dynamic and are deeply impacted by the legal, regulatory, political and commercial environment in which they operate and apply. No company operates in isolation and every company’s ESG policies, targets and goals need to be calibrated to the company’s level of local, national, regional and global integration.
Airlines are a prominent example of companies which are highly integrated at each of these levels and how and why the success and viability of ESG policies, targets and goals are and will continue to depend on the level of appropriate calibration to a company’s local, national, regional and global levels of integration. A key basis for the Air NZ decision was the impact on its fleet renewal plans of supply chain issues, affecting its suppliers of aircraft and engines. Critical to the 2030 targets was replacing older, less fuel-efficient aircraft with newer and more fuel-efficient aircraft. Air NZ is not the only airline facing delays in delivery of these new aircraft. The Air NZ announcement clearly links manufacturer supply issues with its ESG policies and underlines how factors outside the airline’s control or influence can play such a significant role in the viability of its ESG policies, targets and goals. The impact and role of such external factors is likely to only increase. This will require ESG policies and announcements to increasingly, directly and more proactively respond.
"Companies are likely to be faced with deciding whether ESG or commercial objectives should have a higher priority."
A recent WFW-hosted roundtable confirmed that many in the aviation sector are focussing on sustainable aviation fuel (SAF) as a near to medium term cornerstone measure to reduce carbon emissions. This is partly driven by the assessment that delays by aircraft and engine manufacturers to develop, produce and deliver newer and more fuel-efficient aircraft are unlikely to resolved in this decade. Whilst SAF refining and production capacity continues to increase, it is unlikely to meet demand until 2035 or later. Recent decisions by BP and Shell to scale down or suspend investment in SAF facilities suggest that the role of SAF in reducing airline carbon emissions may be more limited than currently anticipated. These decisions and those of other stakeholders in SAF refining and production are made independently of their airline customers but will have a significant and direct impact on the ability of airlines to rely on SAF to meet their ESG policies, targets and goals.
A further critical factor is the cost difference between SAF and conventional aviation fuel. SAF is likely to remain more expensive than conventional fuel in at least the medium term. Airlines are facing the need to balance the increased use of SAF as part of their ESG policies, targets and goals with their ability to pass on higher fuel costs to their customers. As a result of the direct and quantifiable impact of fuel prices on air fares and airline profitability and the widespread use of fuel surcharges, airlines are amongst the first companies to deal with this dilemma. How airlines balance these demands and how consumers respond may determine how companies in the broader economy balance ESG policies, targets and goals with their associated costs.
The tension between ESG policies, targets and goals and an airline’s commercial operations and requirements will only increase as the divergence between ESG and commercial policies and objectives widens. As this occurs, many companies are likely to be faced with deciding whether ESG or commercial objectives should have a higher priority and be able to communicate their decision and deal with critical responses. The more critical responses to the Air NZ announcement are a portent of the likely responses to decisions which prioritise commercial over ESG goals.
"Companies must assess the extent to which their ESG-related public statements and advertising create or increase the risk of investigation and prosecution... and of greenwashing litigation"
Management and company boards will need to ensure that companies achieve a balance which is carefully considered and can be effectively communicated to shareholders and stakeholders and can be substantiated and defended from hostile commentary and criticism. Boards and directors are increasingly in the crosshairs of regulators and class action lawyers for their roles in setting and implementing ESG policies, targets and goals. Board and company decisions on ESG policies, targets and goals must now be made against the real and rising risk and reality of investigations and proceedings into these decisions. Boards and directors will need to undertake an independent, arms’ length and objective analysis of issues presented to the board and over which it has supervisory or other rights.
The response to the Air NZ announcement from commentators and in conventional and social media is a timely reminder that greenwashing litigation and regulatory investigations and prosecution of companies for false, misleading or unsubstantiated environmental claims cannot be ignored or discounted when implementing, updating or changing ESG policies, targets and goals. Airlines have been amongst the most high-profile targets of advertising regulators and have been fined and forced to withdraw advertising and media content which was found to contain false, misleading or unsubstantiated sustainability claims. As part of ongoing assessment of ESG policies, particularly in relation to sustainability, companies must assess the extent to which their ESG-related public statements and advertising create or increase the risk of investigation and prosecution for false, misleading or unsubstantiated environmental claims and of greenwashing litigation against the company and its directors.
Responding to such investigations, prosecutions and litigation has a direct and largely quantifiable cost. The impact on a company’s brand and its business may be less direct and more difficult to quantify, but in a world where consumers increasingly rank environmental concerns as critical to their engagement with companies and brands, it have a much greater impact on the long-term viability of companies.
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