The Oklahoma Bar Journal May 2024

vernacular. From unsupported claims to overexaggerated envi ronmental benefits, corporations have been called out for allega tions of deceptive and misleading messaging in advertising and mainstream corporate reporting. Until 2017, the total number of climate litigation cases was 884 across a total of 24 countries, with 654 of these cases being in the United States. 8 As of July 1, 2020, the number of cases has nearly doubled, with 1,200 cases filed in the United States and 350 filed in 37 other countries combined. 9 The litigation includes both claims around failure to adequately dis close material climate change risks to investors and claims of false or misleading statements about efforts to address environmental and climate-related impacts. Even well-intentioned environ mental commitments can backfire if they are not tied to demonstra ble investment and measurable progress. In the context of hyper politicized attention being paid to fossil fuel companies, messaging must be examined with a critical eye. The general counsel is often in the best position to ask the right questions to map messaging to programs, practices and metrics. Simply put, the general counsel should evaluate whether the mes saging passes the red-face test.

In the context of hyperpoliticized attention being paid to fossil fuel companies, messaging must be examined with a critical eye. The general counsel is often in the best position to ask the right questions to map messaging to programs, practices and metrics.

can trend toward more informal communication than traditional correspondence. Without guard rails in place to define and enforce rules of engagement, agency staff and company personnel may inad vertently step over ethical lines. There have been several instances covered in the media purporting to demonstrate inappro priate familiarity between regulated companies and regulators. For example, in the aftermath of the PG&E San Bruno pipeline incident, thousands of emails were uncovered between high-ranking California Public Utilities Commission (CPUC) staff and PG&E regulatory affairs officers. Some of the emails included PG&E asking for off-the-record favors, such as a change of focus for commission audits. Other emails included PG&E’s former vice pres ident of regulatory affairs making dinner invitations and discussing sharing bottles of wine with the CPUC president. The communica tions led to significant penalties for PG&E and forced resignations for PG&E and CPUC. 10

In 2018, texts were disclosed between an Arizona corporation commissioner and Arizona Public Service lobbyists, where the com missioner appeared to commiser ate and strategize with the utility. The texts were characterized by the media as “playing digital footsie with those they regulate.” 11 The long-term consequences for the energy industry are that these cases shake the public’s trust and create avoidable obstacles to achieving corporate goals. No one is positioned better than the general counsel to provide governance for regulatory interac tions and, in doing so, advise on how to avoid these potential ethical conflicts. Controls to address this risk should include training, writ ten policy and internal oversight. GENERAL COUNSEL CAN DETECT SHINY OBJECT SYNDROME The development of novel ideas, programs and practices are good, but they can have unintended con sequences. Where company action

GENERAL COUNSEL UNDERSTANDS HOW TO MANAGE ETHICAL OBLIGATIONS

Effective communication and transparency with regulators are essential. However, multiple channels for communication may create risk, particularly where personal and professional lines become blurred. Emails and texts

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL