NLJ Quotes Ken Markowitz, Stacey Mitchell on Greenwashing

For its article “Greenwashing Is No Longer Good Enough,” The National Law Journal quoted Akin Gump climate change group co-leader Kenneth Markowitz and ESG and climate change groups co-leader Stacey Mitchell.

The article discusses the increased focus on sustainability as a corporate goal and the reputational risk to clients from allegations of “greenwashing.” Said Markowitz, “Reputational risk is ever-present. Investors and clients are scrutinizing claims and business operations much more carefully. These aspects may not even be enforceable by the government, but nonetheless, a negative perception in the market may potentially cut off access to capital.” He added that companies need to be responsive both to the government and to shareholders and consumers, with a charge of greenwashing label being very damaging to a brand.

He and Mitchell noted that the best way to combat greenwashing allegations is data. Markowitz said that data and science “have a very significant role in the ESG context for not only understanding how to set targets and reporting metrics, but also in telling the truth about how a company is operating and combating allegations of greenwashing with facts.”

Markowitz spoke of Akin Gump’s concerted effort over the past six years to develop its environmental, social and governance, or ESG, practice, referring to the firm’s reputation as an “intellectual foundation” that takes a multidisciplinary approach to each discipline, such as labor and employment or corporate governance, relevant to ESG.

Markowitz said, “What lawyers bring to the table—and this is something that we have worked hard on over the last several years—is helping companies do their inward thinking and guide them through the process of self-assessment on their priorities. We help them discern what are their goals, to articulate those goals and then back them up by setting targets and a system for measuring and reporting against those goals. And then, ultimately, communicate to investors and the public.”

He added that lawyers play a pivotal part in ensuring that statement are true and that clients are putting the pieces together to avoid greenwashing claims.

Mitchell pointed to Akin Gump’s global network of lawyers in the EU, U.K. and elsewhere who track developments in a variety of jurisdictions. She said, “We leverage their experiences to anticipate what we’ll see in the U.S. We’re simultaneously tracking what’s happening in the Biden administration and on The Hill, trying to give our clients the advantages of a holistic view.”