By Sophie Lamb and Paul Davies
There is an increasing desire amongst PE firms to publicise value creation through the use of bespoke metrics to measure improvements and value derived from (ESG) policies including improved reputational risk management; better and more transparent governance; better health, environmental and safety standards; heightened efficiency; less disruption as a result of sanctions and protest; etc. 
These and other opportunities inherent in a robust ESG strategy are generally well-understood by PE firms. However, commensurate appreciation of growing legal risks for buyout firms that communications around ESG strategy and commitments entail, is less evident.
There is more to this evolving area than simply general compliance and being a good corporate citizen. Real reputational, legal, political and financial consequences can arise from failing to align business practice with ESG statements and policies. Such statements and policies often contain laudable public commitments and pledges around ESG, and acknowledgements of control of, and responsibility for, such matters by private equity management and boards. However, these statements and policies have legal content and significance that must not be overlooked; they potentially create misstatement litigation exposure at board, operating and portfolio company levels.
In December 2015, world leaders met to negotiate the Paris Agreement. Setting aside whether the Paris Agreement goes too far, not far enough or is just right, one cannot dispute that government commitments to limit an increase in the global average temperature to well below two degrees Celsius will almost certainly impact private equity funds. In particular, regulatory and investor demand are likely to change the way climate-related risks are assessed. As Blackrock notes, “…carbon-heavy industries are not immune from disruption, nor are asset prices from regulatory efforts to mitigate climate change risk. We believe investors should thoughtfully consider these dynamics in order to build sustainable portfolios and take advantage of investment opportunities as we move towards a low-carbon economy”.