Real Estate Roundtable Requests Member Feedback on SEC Climate Risk Disclosure Proposal
Monday, April 11 is the deadline for responses to a voluntary Real Estate Roundtable membership survey on a proposed rule issued by the U.S. Securities and Exchange Commission (SEC), above, that would require corporate disclosures of climate-related financial risks. (Roundtable Fact Sheet, March 25)
- The responses will influence The Roundtable’s comments to the SEC about the March 21 proposed rule. (Roundtable Weekly, March 25)
- Roundtable members are encouraged to review The Roundtable’s fact sheet summarizing the SEC’s proposed rule before submitting responses.
- The survey, originally sent on April 1, aims to obtain a high-level understanding of the existing practices and standards used by Roundtable members in assessing and quantifying:
- greenhouse gas (GHG) emissions across portfolios,
- buildings’ electricity use,
- the impact of floods and rising sea levels to real estate assets,
- tenant interactions about these issues, and
- other questions that may require registered companies to report on their climate-related financial risks.
- The proposed SEC rule has no immediate effect. If it is finalized, the action could have a significant impact on the real estate industry, requiring all SEC registered companies to report on climate-related risks through annual 10-Ks and additional filings. (SEC News Release | Proposed Rule | Fact Sheet, March 22)
- If any Roundtable member has questions about the survey, please contact Roundtable Senior Vice President and Counsel, Duane Desiderio.
Policymakers & SEC Regulation
- Several Senate Democrats support a more stringent SEC climate disclosure rule, including Elizabeth Warren and Edward Markey of Massachusetts. (Politico, April 5 and Markey news release, March 21)
- Senator Joe Manchin (D-WV), chairman of the Senate Committee on Energy and Natural Resources, sent a letter to Commission Chairman Gary Gensler on April 4 outlining his concerns with the 506-page proposed SEC rule.
- A group of 19 Senate Republicans from the Senate Environment and Public Works (EPW) and Banking committees expressed their opposition to the SEC proposal in an April 5 letter to Gensler.
- While some opposition to the SEC’s proposed rule is mounting in Congress, particularly from the GOP, the Biden Administration is nonetheless expected to push forward with a final rule that could be issued later this year.
The Roundtable’s Sustainability Policy Advisory Committee (SPAC) will convene a working group that will review the SEC’s proposed climate rule and our comment letter response to the Commission.
# # #
Roundtable and Broad Business Coalition Request SEC to Provide Appropriate Comment Time Periods for Multiple Rulemakings
A regulatory push on multiple fronts by the Securities and Exchange Commission (SEC) prompted The Real Estate Roundtable and 24 other national business organizations this week to submit comments to SEC Chairman Gary Gensler, above, about the need for more time to assemble meaningful stakeholder analysis as part of the rulemaking process. (Coalition letter, April 5)
SEC Proposals & CRE
- A long list of recent, overlapping SEC proposals affecting business are cited in the coalition letter, including four rulemakings that could significantly impact the real estate industry:
1.) Jan. 26 – the SEC issued a proposal that would impose new reporting requirements on real estate investment and private equity advisers, including a mandate to file reports (Form PF) within one business day of certain events. (SEC News Release | Fact Sheet | Proposed Rule)
- The Roundtable’s March 21 response stated the SEC proposal “presents significant compliance and operational challenges for private real estate fund sponsors, with no added benefit to investors and no relation to the intent of Form PF in monitoring systemic risk.” (Roundtable Weekly, March 25)
- The Roundtable plans to submit comments by April 25 to the SEC, which stated it is aiming to increase transparency and efficiency in the $18-trillion private fund adviser marketplace. (Roundtable Weekly, Feb. 11)
3.) March 9 – the SEC issued another proposal that would require publicly traded companies to disclose a cybersecurity incident within four days of determining a breach is “material,” or important to the average investor. (SEC News Release | Proposed Rule | Fact Sheet)
- The Roundtable is working on comments due by May 9 regarding the reporting requirement proposal addressing material cybersecurity incidents. (Roundtable Weekly, March 18)
4.) March 21 – the SEC issued a proposed rule regarding the reporting and disclosure of material corporate financial risks related to climate change. (SEC News Release | Proposed Rule | Fact Sheet, March 22 and Roundtable Weekly with Roundtable Climate Proposal Fact Sheet, March 25)
- Stakeholder input on the proposed climate disclosure rule is due to the SEC around May 20. The Roundtable is working on a comprehensive response that will include information from a Roundtable member survey due this Monday, April 11. (see related Roundtable Weekly story on the survey, above)
- This week’s coalition letter to the SEC noted, “The hundreds-upon-hundreds of questions, and numerous catch-all requests for comment, posed in these rulemakings reflect the Commission’s recognition that it needs input from the public to properly craft the proposed rules, yet the Commission is refusing to allow the public the time it needs to answer the Commission’s questions satisfactorily.”
- The business coalition requested that the SEC should not reflexively assign a 30-day or 60-day comment period to multiple rule proposals. The coalition commented, “Exceedingly short comment periods associated with numerous concurrent potentially inter-connected rule proposals … could result in rules that hurt investors, damage the financial system, and implicate the Commission’s obligations.” (Coalition letter, April 5)
The SEC’s various rulemaking proposals affecting CRE will be discussed during The Roundtable’s April 25-26 Spring Meeting (Roundtable-level members only) in Washington, DC.
# # #
Legislators Introduce Bipartisan Bill to Reform Opportunity Zone Incentives
Members of Congress introduced bipartisan, bicameral legislation yesterday to update and amend the Opportunity Zones (OZs) program. If enacted, the bill would extend expired OZ benefits, sunset certain high-income OZ census tracts, and apply additional information reporting requirements for opportunity funds and their investors. (Congressional news release, April 7)
- The Opportunity Zones Transparency, Extension, and Improvement Act was introduced in the Senate by Tim Scott (R-SC), above, and Cory Booker (D-NJ) – and in the House by Ron Kind (D-WI) and Mike Kelly (R-PA). (Full text of the legislation | One-page summary | Section by Section).
- The bill includes a Roundtable-requested, 2-year extension of the initial capital gains deferral period for prior gain that is rolled into an opportunity fund by an investor. (Roundtable Comment letters: Dec. 21, 2021 and May 14, 2020)
- The 2-year extension, from the end of 2026 until the end of 2028, will allow OZ investors to benefit from a partial step-up in basis that reduces their tax liability on their prior gain if their opportunity fund investment is maintained for at least 5 years. The extension would help OZs continue attracting capital and investment that is boosting job growth and supporting the local tax base in these communities.
- Other provisions include a detailed process for sunsetting certain high-income census tracts from the OZ program; new information reporting rules for Opportunity Funds and investors; and creation of a $1 billion State and Community Dynamism Fund to support OZ projects and businesses in underserved communities.
- Census tracts subject to the sunset provision include those with a median family income that exceeds 130 percent of the national median. The sunset includes transition rules that grandfather in existing and planned investments.
- The information reporting proposals were previously introduced by Senator Scott in 2019. They aim to improve program transparency and facilitate improved tracking of the OZ investment outcomes in the designated communities. The Roundtable and other real estate organizations previously encouraged Congress to adopt enhanced OZ information reporting, data collection, and transparency measures. (Roundtable Comment letter: Dec. 21, 2021)
- In the short time since their enactment, Opportunity Zones have created jobs and spurred billions of dollars in new investment in economically struggling communities. The Roundtable worked closely with Members of Congress and the Treasury Department to ensure OZ implementing regulations would facilitate the program’s success, and has long-supported OZ legislation that could spur greater investment, promote capital formation and bolster job growth in economically disadvantaged communities. (Roundtable Weekly: May 15, 2020 and (Roundtable Comment letter: Dec. 21, 2021)
In the current legislative environment, prospects for the new bill are uncertain, but it will likely be the basis for any serious consideration of OZ changes going forward.# # #