How Apple Could Block Climate Change Vote: SEC Limits Shareholder Power

Although Apple boasts about its efforts to reduce carbon emissions, members of the board didn’t want to be held to any promises. And even though Barack Obama has called climate change a “terrifying” threat to human survival, one of Obama’s most powerful regulatory agencies weighed in this week to help Apple shield itself from shareholders who want the company to outline its environmental plans.

The Securities and Exchange Commission told Apple that the company would not face sanctions if executives blocked shareholders from voting on a non-binding proposal to eliminate Apple’s climate-related pollution — in effect, allowing Apple to disenfranchise its own stockholders without fear of punishment.

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“The proposal seeks to micromanage the company by probing too deeply into matters of a complex nature upon which shareholders, as a group, would not be in a position to make an informed judgment,” SEC special counsel Evan S. Jacobson said in a December 5th letter to Apple executives, informing them that regulators would not recommend enforcement action if the company omits the resolution from its proxy materials, thereby preventing a vote.

In opposing the shareholder proposal and requesting the SEC “no action” letter, Apple’s associate general counsel Gene D. Levoff extolled the company’s efforts to reduce carbon emissions. “The company has gone to great lengths to provide its shareholders and the general public with detailed information, available on the company’s website, about its greenhouse gas emissions and energy use,” he wrote.

But while touting that detailed information, Levoff asserted that the proposal inappropriately allows for shareholder oversight of “numerous aspects of the Company's business which are simply too complex for shareholders to understand fully based on the limited information available to them.”

The SEC concurred.

Environmental groups have argued that the SEC has refused to adequately enforce its own climate-related rules.

After the agency passed a 2010 rule to provide investors with more information about climate risks, the commission has “done almost nothing to enforce that guidance,” wrote Mindy S. Lubber, president of the environmental watchdog group Ceres. “The SEC’s enforcement division has not conducted any investigations into possible violations of the securities laws from inadequate climate risk disclosure.”

A January report from the Governmental Accountability Office found that despite such criticism, “the agency has no plans to specifically determine if additional actions related to disclosure of climate-related risks are necessary or appropriate in the public interest or for the protection of investors.”

The SEC has recently refused corporate requests for similar “no action” letters on some climate issues. Over the last year, the agency denied such requests by, among others, oil giants ExxonMobil, Chevron and Hess — each of which sought to block their own shareholders from voting on proposals to have the companies assess, reduce or merely acknowledge the threat of climate change. The agency in 2015 refused to issue a no action letter against a proposal to help shareholders review whether a mutual fund was voting its shares of stock in a way that reflected its stated climate change policy.

Apple has said it is aiming to help stop climate change, and the company has taken high-profile steps to power many of its facilities with renewable energy. But in 2015, the company saw a year-to-year uptick in its carbon emissions. Manufacturing plants in China are responsible for the majority of Apple's carbon footprint.

Still, the company says it is moving towards its “goal to run 100 percent of its worldwide operations on renewable energy and lead the way towards reducing carbon emissions from manufacturing.”

That stated goal was cited by Christie Jantz, whose Boston-based firm specializes in socially responsible investments, in her push for the shareholder resolution. The initiative proposed to let shareholders cast an up-or-down vote on a resolution saying, “shareholders request that the Board of Directors generate a feasible plan for the Company to reach a net-zero [greenhouse gas] emission status by the year 2030 for all aspects of the business which are directly owned by the Company and major suppliers.”

Jantz, who has filed other climate-related resolutions at other publicly traded corporations, argued that the company’s plan to achieve its 100 percent renewable objectives remained unclear, and that Apple officials should provide specific details and a timeline for implementation.

“She is just asking the company to consider the need for carbon reduction more completely, and identify a goal and endpoint to the company's efforts that is a more complete and expeditious response to the urgency of climate change responses,” wrote Jantz’s lawyer to the SEC.

Though Apple is a multibillion-dollar behemoth, its lawyer countered Jantz’s argument by declaring that the company had little power to influence the environmental behavior of its subcontractors and vendors.

“The company is not in a position to require its major suppliers to change their business operations to reduce their emissions or engage in other operations to offset their emissions,” Levoff wrote. “Because the Company cannot compel its major suppliers and regulatory agencies in countries where they operate to take action on carbon emissions as requested by the proposal, it is impossible for the company to produce the plan without intervening actions by third parties.”