Trey Jackson – Page 24 – The Real Estate Roundtable

Roundtable Recognized as Energy Department “Ally” in Better Climate Challenge

Posted on March 5, 2022October 27, 2023 by Trey Jackson

The U.S. Department of Energy (DOE) recognized The Real Estate Roundtable this week as an inaugural “ally” of the Better Climate Challenge (BCC), a voluntary program to encourage private and government owners of buildings and industrial plants to cut their GHG emissions in half. (Climate Challenge Factsheet | FAQs | BCC Launch video, Feb. 28)

Better Climate Challenge & CRE

“The Real Estate Roundtable is proud to partner with the Department of Energy as an ‘ally’ in the Better Climate Challenge,“ said Roundtable Chair John Fish, above, (Chairman and CEO, Suffolk). “As leaders in the CRE industry, our members welcome opportunities to innovate with DOE and other federal agencies to reimagine how our nation’s buildings can optimize efficiency, slash GHG emissions, and draw electricity from a cleaner grid.
“Partnerships with DOE offer significant opportunities to focus on retrofitting older buildings,” Fish continued. “Seventy-five percent of U.S. buildings were constructed in the last century. The greatest and most positive impact our industry can have on the climate crisis is to make smart investments that modernize the apartments, office buildings, and other structures where our communities live, work, learn, and socialize.”
The BCC to date has received commitments from more than 90 organizations from various industries, including six companies represented by Roundtable members – Empire State Realty Trust, Hilton, Jamestown LP, LaSalle Investment Management, Lendlease, and MetLife Investment Management.
Other real estate industry trade groups who are designated “allies” of the BCC include the Building Owners and Managers Association International (BOMA) and the American Hotel & Lodging Association (AHLA).

Program Requirements

DOE Secretary Granholm, top left, officially launched the BCC on Feb. 28 during an executive discussion with White House National Climate Advisor Gina McCarthy, middle left, Housing and Urban Development Secretary Marcia Fudge and committed partner organizations.
The key element of DOE’s voluntary challenge is for companies to commit to reduce direct emissions (“scope 1”), and emissions from electricity purchases (“scope 2”), by 50% over 10 years. There is no requirement to quantify or reduce indirect “scope 3” emissions.
The 10-year window is measured from a baseline of up to five years before a company joins the program.
Commitments to reduce emissions must be across a building portfolio. DOE explained that to reach the 50% emissions reduction target, companies can tally their long-term clean power purchase agreements (PPA) and associated renewable energy certificates (RECs). PPAs and RECs are increasingly common strategies used by CRE and other sectors to help deliver more renewable energy to the electricity grid. (Roundtable Weekly, November 5, 2021)
Participating companies must also pursue an efficiency target, to prioritize energy savings that will contribute toward the 50% reduction in portfolio-wide emissions over a decade.
Companies joining the program must pledge to share energy and emissions data for 10 years through EPA’s Portfolio Manager, publicly report on progress, participate in peer-to-peer exchanges, and help develop industry best practices.

Businesses who want to pursue “partnership agreement” – or trade organizations who want to participate as an “ally” – with DOE’s national leadership initiative on climate can consult with BCC online.

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White House Requests Billions for Ukraine and Pandemic Response as Congress Rushes to Pass Omnibus Funding

Posted on March 5, 2022October 27, 2023 by Trey Jackson

Congressional appropriators received an emergency request yesterday from the White House for an additional $10 billion for Ukraine assistance and $22.5 billion for pandemic response funding. The request may complicate lawmakers’ efforts to pass an “omnibus” spending package by March 11, when current government funding expires. (Punchbowl News, March 3)

Omni Funding

Congressional appropriators may release the text of an omni bill within days, as House Democrats hope to pass a potential $1.5 trillion spending package early next week for the Senate to consider before the March 11 funding deadline. (Politico, March 3)
A deal on an omni package would fund the government though Sept. 30, consolidate 12 separate spending bills and release additional funds for infrastructure. (Tax Notes, Feb. 18 and Roundtable Weekly, Feb. 11)
Reauthorization and reform of the EB-5 visa investment program is one of the many issues being negotiated for possible inclusion in the omni funding bill.
If efforts to pass an omnibus deal fail, Congress could pass yet another Continuing Resolution to fund the government at current levels – while considering separate bills to fund aid for Ukraine or the U.S. response to COVID-19.

SOTU & Climate Measures

Yesterday’s White House emergency request comes after President Joe Biden’s March 1 State of the Union address, where he sought to rebrand the multitrillion Build Back Better (BBB) spending package into a pared-down proposal called “Building a Better America.” (BGov, March 2)
The moribund BBB legislation stalled at $1.7 trillion, which included $555 billion in climate-related incentives. (Roundtable Weekly, Jan. 21)
President Biden’s address on Tuesday also touched on climate measures such as tax credits for electric vehicles, energy efficiency improvements, and clean energy production. (White House Fact Sheets on Clean Energy and Infrastructure, Feb. 28)
“Let’s provide investment tax credits to weatherize your home and your business to be energy efficient and get a tax credit for it; double America’s clean energy production in solar, wind, and so much more,” Biden stated.
The Real Estate Roundtable on Nov. 16, 2021 supported the BBB Act’s climate measures in a letter to congressional tax writers. The letter also detailed five Roundtable recommendations aimed at improving certain green energy tax provisions affecting real estate. (Roundtable letter, Nov. 16)

Key Senate Votes

Key Sen. Joe Manchin (D-WV), right, chair of the Senate Energy and Natural Resources Committee, has signaled his support for climate measures in a revised BBB package. (Roundtable Weekly, Feb. 18)
Manchin on Wednesday responded to the State of the Union, saying he could support a smaller spending package that would split revenue between deficit reduction and new spending. Manchin said, “If you do that, the revenue producing [measures] would be taxes and [prescription] drugs. The spending is going to be climate.” (Politico, March 2 and E&E News, March 3)
However, another key vote in the 50-50 upper chamber – Sen. Kyrsten Sinema (D-AZ), left – has voiced opposition to raising taxes. (BGov, March 2)

As Congress continues to work on the current fiscal year budget, President Biden will release a non-binding budget for the 2023 fiscal year that will outline his administration’s major economic, tax and climate policy priorities. The Treasury Department will also release its “Greenbook,” which will detail proposed tax cuts and revenue raisers that could fund the White House’s budget initiatives.

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The Roundtable and Business Continuity Coalition Call for Public-Private Pandemic Risk Insurance Backstop

Posted on February 26, 2022October 27, 2023 by Trey Jackson

Rep. French Hill (R-AR), above, – Ranking Member of the House Financial Services Subcommittee on Housing, Community Development and Insurance – led a Feb. 23 discussion on the widening gaps in pandemic-related coverage in commercial insurance markets with policyholders and insurance industry officials.

Pandemic Risk Insurance Solution

Additionally, members of the multi-industry Business Continuity Coalition (BCC), which includes The Real Estate Roundtable, on Feb. 23 urged policymakers to enact a public-private pandemic risk insurance backstop program. The BCC’s Feb. 23 statement emphasizes that such a program would protect the economy from future government-ordered shutdowns while enabling employers to keep payrolls and supply chains intact.

The BCC is comprised of over 50 business organizations and companies representing approximately 70 million workers in the hospitality, retail, real estate, communications, broadcasting, nonprofit association, entertainment, restaurant, gaming and professional sports industries. (BCC statement, Feb. 23)

Real Estate Roundtable President and CEO Jeffrey DeBoer, above, said, “Pandemic risk is one of the largest unhedged risk exposure in the U.S. economy today. It is important to have an economic mechanism in place to protect jobs and the economy from future government mandated shutdowns.”
DeBoer added, “The Real Estate Roundtable and its Business Continuity Coalition partners encourage policymakers to prepare the economy for future risks by enacting a program that provides the coverages that American businesses need.”
The BCC offered a detailed proposal last March to establish a federal pandemic insurance program, and endorsed the Pandemic Risk Insurance Act (H.R. 5823) last November, while policymakers continue to deliberate on how to design such a program. (Roundtable Weekly, Nov. 5, 2021)

The coalition noted that the design of any pandemic risk insurance program should adhere to certain principles, which are outlined in the Feb. 23 statement.

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Roundtable, Real Estate Coalition Comment on Proposed Anti-Money Laundering Regulations

Posted on February 26, 2022March 6, 2024 by Trey Jackson

Ten national real estate industry organizations, including The Roundtable, on Feb. 21 submitted detailed comments to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) on proposed anti-money laundering regulations affecting real estate transactions.

Industry Concerns

The industry letter supports the broad goal of preventing the use of LLCs or any form of real estate to finance illicit acts, money laundering, or terrorism – yet emphasizes that FinCEN should proceed cautiously to not harm legitimate real estate capital flows in the process.
The coalition also states that anti-money laundering rules and requirements should focus on risk while not burdening legitimate actors with unnecessary or duplicative compliance, which will only increase costs without meaningfully combating money laundering.
The coalition letter emphasizes three main recommendations for FinCEN:
I.) Study the commercial and multifamily real estate markets to tailor future regulation to how those markets function;

II.) Leverage the Corporate Transparency Act (CTA) and the beneficial ownership database to reduce the necessary scope of further action; and

III.) Distinguish nonbank commercial real estate lenders from true all-cash transactions.
The Feb. 21 letter notes that the real estate industry supports efforts to provide the law enforcement community with the tools necessary to stop money laundering, terrorism financing, or other crimes. However, the coalition urges that any compliance regime should be structured in a manner that does not discourage CRE capital formation and investment.

FinCEN Comments

Earlier this month, a coalition of five real estate organizations, including The Roundtable, submitted concerns to FinCEN on a proposed federal registry with beneficial ownership information that would include rules on who must file, when, and what specific information must be provided. (Coalition letter to FINCEN, Feb. 4)
The letter stated the industry supports efforts to eliminate terrorism financing and money laundering and appreciate efforts to protect the U.S. financial system from illicit actors and business entities. However, the coalition also raised concerns about the cost and compliance burden of imposing excessive, unnecessary and/or confusing beneficial ownership reporting requirements on real estate businesses.
The Roundtable and three other national real estate organizations also submitted detailed comments to FinCEN on May 5, 2021 addressing several implementation concerns related to the proposed registry. (Roundtable Weekly, May 7)
FinCEN has solicited comments on a wide range of questions related to its implementation of the CTA – enacted on January 1, 2021 – that effectively bans the registration of anonymously owned shell companies in the United States. (JD Supra, April 26 and Lexology, April 28)

The Roundtable’s Real Estate Capital Policy Advisory Committee (RECPAC) will continue to work with industry partners to respond to FinCEN’s proposals. The industry will also continue to support a balanced approach that inhibits illicit money laundering activity while not restricting capital formation or increasing the regulatory burden on real estate.

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FCC Issues New Rule That May Hinder Broadband Deployment in Multi-Tenant Buildings

Posted on February 19, 2022October 27, 2023 by Trey Jackson

A Federal Communications Commission (FCC) order released Tuesday aims to nullify arrangements between broadband providers and building owners to deliver efficient and cost effective internet service for residential and business tenants. (Bloomberg, Feb. 15)

The FCC maintains that its latest rules will “unblock broadband competition” for apartment dwellers and businesses. The agency aims to block agreements that would allow building owners to share revenue with a broadband company when providing internet access in a residential or commercial building. (FCC news release)
The FCC’s action this week derives from a Biden Administration executive order issued last summer that contains a far-reaching objective to “promote competition in the American economy.” The order included a lone reference to rules that improve tenants’ choices in selecting broadband providers, which led to this week’s action by the FCC.
Multifamily industry advocates counter that the FCC’s latest order could “discourage investment and harm deployment and maintenance of broadband networks.” [Feb. 17 statement of the National Multifamily Housing Council (NMHC) and the National Apartment Association (NAA)]
The NMHC and NAA statement explains that the FCC’s ruling attempts to provide a solution where there is no problem. “Industry data shows competition and superior broadband service already exists, with 80 percent of apartments surveyed having two or more providers on site.”
NMHC and NAA also point out that the FCC’s order could actually hinder broadband access for Americans living in low-income communities, smaller rentals, public housing, and other underserved properties most in need of broadband modernization. “Building owners often struggle to find even one provider to serve a property and provide up-to-date broadband service in these locations,” the organizations stated.

NMHC and NAA led a coalition of real estate groups – including The Real Estate Roundtable and Nareit – in filing comments to the FCC last fall. The coalition comments demonstrated there is “ample competition in the broadband market in apartment buildings and office and retail properties” and that new FCC rules were unnecessary.
The real estate coalition comments also explained that “revenue sharing agreements” between building owners and broadband providers are not the problem that limits internet access in low-income and other underserved communities. Rather, the chief “limiting factor” in addressing that challenge is the cost of “extending infrastructure to and within those communities” in the first place. (FCC comment letter, Oct. 20, 2021)

The bipartisan Infrastructure Investment and Jobs Act (IIJA) invests roughly $65 billion “to help ensure that every American has access to reliable high speed internet.” (Bipartisan Infrastructure Law Guidebook, “Broadband” section)

The Roundtable will continue to work with coalition partners to promote speedy and proper disbursement of IIJA funds for broadband and other infrastructure projects, while preserving the rights of owners to manage their buildings and meet their tenants’ demands.

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Policymakers Focus on Federal Infrastructure Spending

Posted on February 19, 2022October 27, 2023 by Trey Jackson

Washington policymakers this week addressed new initiatives to disburse $1.2 trillion in federal infrastructure investment, including agency spending that will support production of low-carbon construction materials. (White House Fact Sheet, Feb. 15)

Biden Administration Efforts

President Biden yesterday traveled to Ohio to emphasize how the Infrastructure Investment and Jobs Act (IIJA) signed into law last November is funding new roads, bridges and railways while also protecting the environment. (Roundtable Weekly, Nov. 12, 2021 and Reuters, Jan. 17)
The White House on Tuesday announced new government-wide actions to support clean manufacturing for low-carbon production of steel, aluminum, and concrete needed as materials for electric vehicles, solar panels, buildings, and transportation projects.
A “Buy Clean Task Force” includes efforts by the General Services Administration (GSA) to encourage best practices for reducing “embodied emissions” of construction materials in federal buildings. (Reuters and MarketWatch, Feb. 15)
The administration also launched “Infrastructure School” this week – a series of webinars to provide an in-depth look into IIJA investment categories ranging from roads to rail to mass transit to broadband. Each webinar will cover an infrastructure asset class described in the Administration’s recently released Bipartisan Infrastructure Law guidebook. (Usetinc, Feb. 15 and Roundtable Weekly, Feb. 4)

Transportation Spending Controversies

Billions from the Infrastructure Investment and Jobs Act (IIJA) for transportation projects are on hold, dependent on Congress reaching a deal on an “omnibus” appropriations bill to fund the U.S. government though Sept. 30. Meanwhile, the types of highways projects that should primarily benefit from federal funding is becoming a contentious issue. (E&E News, Feb. 7 and BGov, Feb.9)
The Biden Administration in December issued guidance advising states to prioritize IIJA transportation dollars for maintaining and improving existing highways – before adding new lanes.
In a letter last month to President Biden, a group of 16 Republican governors asked for greater flexibility. The letter noted, “A clear example of federal overreach would be an attempt by the Federal Highway Administration to limit state widening projects.”
Senate Minority Leader Mitch McConnell (R-KY) and Sen. Shelley Moore Capito (R-WV) last week countered the Biden Administration’s guidance. They advised U.S. governors that the IIJA has no authority to “dictate how states should use their federal formula funding, nor prioritizes public transit or bike paths over new roads and bridges.” (Wall Street Journal, Feb. 9)
Additionally, the Biden administration on Feb. 10 released a plan to distribute $5 billion in formula funding to states for EV chargers. States would first have to present charging network “deployment plans” to the US-DOT before receiving federal money. (CNBC, Feb. 10)
In Congress, the economic impact of infrastructure investing was the focus of a Tuesday hearing held by a House Ways and Means subcommittee. (W&M news release, Feb. 5)

Transit industry experts, state transportation officials, and other witnesses testified before the subcommittee on the importance of the IIJA’s funding to transportation infrastructure improvements, economic growth and public health.

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Senate Passes Stopgap Funding, Giving Congress Three Weeks to Pass FY2022 Omnibus Spending Bill

Posted on February 19, 2022October 27, 2023 by Trey Jackson

The Senate yesterday approved funding to keep the government open through March 11, allowing congressional negotiators an additional three weeks to reach a spending deal for fiscal year 2022. (CQ, Feb. 18)

From CR to Omni

The legislation (H.R. 6617) extends FY2021 funding levels, averting a government shutdown at midnight tonight. President Biden is expected to sign the Continuing Resolution (CR), which was passed by the House last week. (Roundtable Weekly, Feb. 11)
Congressional appropriators are now focused on crafting an “omnibus” bill to fund the government though the end of FY2021, which began Oct. 1 and ends Sept. 30. A deal on an omni package would consolidate 12 separate spending bills and release additional funds for infrastructure. (Tax Notes, Feb. 18)
The must-pass omnibus could become a vehicle for additional tax measures, including expired tax incentives and energy credits known as extenders. Senate Finance Committee Chair Ron Wyden, (D-OR), told Tax Notes on February 10 that certain credits may be included in an omnibus bill or in a scaled-down Build Back Better Act (H.R. 5376).
The Biden administration’s request for Congress to appropriate billions more in COVID-19 response funds is meeting bipartisan resistance. Senate Appropriations Chair Patrick Leahy (D-VT) this week commented on negotiations about the omnibus and the White House supplemental, stating, “That should probably be a separate bill.” (Politico, Feb. 17 and PoliticPro, Feb. 18)

Roundtable & Energy Measures

Omnibus negotiations and pandemic funding may be followed by congressional consideration of a pared-down BBB bill as the mid-term elections grow closer. Key Sen. Joe Manchin (D-WV), chair of the Senate Energy and Natural Resources Committee, has signaled his support for climate measures in a revised BBB package. (CNN, Jan. 5 and New York Times, Jan. 20)
The Roundtable has supported the BBB Act’s climate measures, which include a suite of clean energy tax credits and incentives amounting to $300 billion. (Roundtable Weekly, Jan. 7)
The Roundtable sent a letter to Congressional tax writers on Nov. 16, 2021 detailing five recommendations aimed at improving the green energy tax provisions affecting real estate. (Roundtable letter, Nov. 16)

The Senate returns on Feb. 28 for President Biden’s first State of the Union address on March 1, which will be followed by the administration’s FY2023 budget request.

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CRE Executives’ Optimism About Q1 Market Conditions Tempered by Inflation and Interest Rate Concerns

Posted on February 18, 2022October 27, 2023 by Trey Jackson

As the economy continues to recover from the global pandemic, commercial real estate executives see strong market fundamentals and steady economic growth, according to The Real Estate Roundtable’s Q1 2022 Economic Sentiment Index. While optimistic about the economic outlook going forward, inflation concerns and a rising interest rate environment are frequently cited as potential headwinds for the industry.

Market Conditions

Additionally, Roundtable Chair John Fish (Chairman and CEO, Suffolk), above, on Feb. 14 discussed the real estate market and return-to-office efforts on Bloomberg’s “The Tape” podcast. (Listen to podcast from 10:45 to 16:55)
The Roundtable’s Overall Q1 2022 Sentiment Index—a reflection of the views of real estate industry leaders—registered a score of 66, a seven-point increase relative to the Q1 2021 score, demonstrating continued optimism for market conditions despite a decrease of seven points from Q4 2021. The Current Index registered at 71, a 27- point increase compared to Q1 2021. The Economic Sentiment Overall Index is scored on a scale of 1 to 100 by averaging the scores of Current and Future Indices. Any score over 50 is viewed as positive.
The Roundtable’s quarterly economic survey also shows that 69 percent of respondents believe that general market conditions today are “much better or somewhat better” versus one year ago—and that 53 percent anticipate conditions will continue to improve one year from now.
Roundtable President and CEO Jeffrey DeBoer said, “We are encouraged by the decreasing number of cases of COVID-19, pandemic-related restrictions being lifted throughout the country, cities continuing to reopen safely and efficiently, and increased travel and consumer spending. Our nation’s post-pandemic recovery is reliant on the revitalization of cities, safe transportation systems, significant return of employees to the workplace, and healthy real estate values.”
He added, “Throughout the pandemic the real estate industry has assisted suddenly jobless residents and troubled business tenants restructure leases to remain in their properties. Industry leaders now look forward to reimagining people’s living, shopping, work, and other spaces in the built environment to accommodate the evolving needs of the post-COVID economy.”

Topline Findings

The Q1 2022 Real Estate Roundtable Sentiment Index registered a score of 66, a decrease of seven points from the fourth quarter of 2021 but a seven-point increase over Q1 2021. While optimistic about the economic outlook going forward, inflation concerns and a rising interest rate environment were frequently cited as potential headwinds for the industry.
Survey respondents’ outlook varied between asset classes and location; most participants felt that real estate assets, particularly single and multifamily housing and industrial, remain largely “priced to perfection” with limited supply being chased by seemingly “boundless” capital.
This supply-demand imbalance has generally led to compressed cap rates across favorable asset classes and results in perceptions that valuations will remain elevated.
Participants cited a continued abundance of debt and equity capital and strong investor demand for real estate.

Data for the Q1 survey was gathered in January by Chicago-based Ferguson Partners on The Roundtable’s behalf. See the full Q1 report.

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House Passes Cannabis Reform Banking Legislation to Provide Safe Harbor for Financial Service Providers and CRE Owners

Posted on February 12, 2022October 27, 2023 by Trey Jackson

A Roundtable-supported bill that would allow federally regulated banks to provide mortgage and financial services to state-licensed, cannabis-related businesses (“CRBs”) – without the threat of penalties under federal law – passed the House on Feb. 4.

A SAFE Harbor

The Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1996) would provide commercial property owners a safe harbor if they lease space to a state-approved CRB, whose mortgages would not be subjected to corrective action by a bank under federal law.
The SAFE Banking Act was approved by the House last week after it was added as an amendment to the America COMPETES Act, a bill that aims to make the U.S. more competitive with China. (The Hill, Feb. 4)
The cannabis reform bill has been introduced in every Congress since 2013 by Rep. Ed Perlmutter (D-CO) – and has now passed the House six times as a standalone bill or an amendment to a larger legislative package.
Perlmutter, who plans to retire from the House at the end of this year, said, “Cannabis-related businesses — big and small — and their employees are in desperate need of access to the banking system and access to capital in order to operate in an efficient, safe manner and compete in the growing global cannabis marketplace.” (NJ.com, Feb. 7)
The Real Estate Roundtable is a long-standing supporter of the SAFE Banking Act. Roundtable President and CEO Jeffrey DeBoer noted in a March 2019 letter to policymakers that the bill “… clarifies that banks could not take adverse action on a loan to a real estate owner solely because that owner leases property to a legitimate CRB. The measure also protects sellers and lessors of real estate and other CRB ‘service providers’ by clarifying that proceeds from legitimate marijuana-related transactions do not derive from unlawful activity, and thus do not provide a predicate for federal criminal money laundering.” (Roundtable letter, March 25, 2019)
Cannabis has been legalized in 18 states since 2010, and 37 have legalized marijuana for medical purposes. (HuffPost, Feb. 10)
The estimated value of the U.S. cannabis industry is $17.7 billion, a substantial amount of which remains unbanked. As of January 2021, the legal cannabis industry supports 321,000 jobs across the country. (Perlmutter news release, April 19, 2021)

Senate Consideration

The America COMPETES Act now heads to the Senate for consideration and a likely legislative conference with House policymakers. Perlmutter, above, commented that if the SAFE Banking Act is rejected once again by the Senate, he would attach the cannabis reform measure to “some other bills coming up over the course of the next month or two.”
House Speaker Nancy Pelosi (D-CA) assured Rep. Perlmutter that she will push for passage of the SAFE Banking Act bill. Perlmutter said, “[Pelosi] understands, too, that I’m committed to put this on anything that I can. She sees it – and I hope the Senate ultimately sees it – as inevitable.” (PoliticoPro, Feb. 4)
Senate Minority Leader Mitch McConnell (R-KT) on Feb. 8 described the SAFE Banking measure as a “poison pill” amendment. “China has been steadily building up its military and economic might, and the Democrats’ answer is to help Americans get high?” McConnell said. (MarketWatch, Feb. 8)
In a separate cannabis reform effort, Senate Majority Leader Chuck Schumer (D-NY), along with Sens. Cory Booker (D-NJ) and Ron Wyden (D-OR), yesterday sent a “dear colleague” letter to solicit input about a Senate bill seeking to legalize marijuana at the federal level with the addition of social justice measures.

Schumer’s bill is likely to attract more Republican opposition than the SAFE Banking Act.

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SEC Proposes Increased Oversight for Private Investment Funds; Delay Reported for Proposed Climate Risk Rule

Posted on February 12, 2022October 27, 2023 by Trey Jackson

The U.S. Securities and Exchange Commission (SEC) on Feb. 9 proposed expansive, new disclosure requirements for private investment funds, while an anticipated proposed rule that could require issuers to report on GHG emissions has been delayed. (Wall Street Journal Feb. 9 and Bloomberg, Feb. 8)

Proposed Rules & Private Funds

This week’s proposed rule, if approved, would require private-equity and hedge-fund managers to provide statements on fund performance, compensation, fees and expenses. The proposal passed the Commission on a 3-1 party-line vote, with one dissenting Republican. (PoliticoPro, Feb. 9)
Managed Funds Association President and CEO Bryan Corbett responded, “The SEC’s proposed additional regulations on private funds will harm the most sophisticated investors, including pensions, endowments and foundations, who rely on these funds to serve their beneficiaries. The agency’s treatment of private funds as if they were serving retail investors is misguided.” (Pensions and Investments, Feb. 8)

Climate Risk Disclosures & CRE

Reps. Andy Barr (R-KY), French Hill (R-AR) and Bill Huizenga (R-MI) on Oct 6, 2021 wrote to SEC Chair Gary Gensler, above, claiming the SEC lacks jurisdiction to create and implement policies affecting private, non-market companies. “Lest there be any doubt, we wish to emphasize that the SEC has no authority to impose public disclosure obligations—regarding climate or otherwise— on private businesses that have not accessed the public capital markets,” the Members wrote.

Bloomberg reported this week that the SEC has delayed the release of a separate proposed rule that could require REITs and other issuers to disclose GHG emissions and climate-related financial risks in their Commission filings. (Bloomberg, Feb. 8)

The climate risk proposal may extend into March or later, according to Bloomberg. Gensler previously announced it would be released last year. (Roundtable Weekly, June 11, 2021 and Reuters, May 6, 2021).

The SEC’s climate proposal is widely expected to evolve into the first-ever federal rule that will require companies to measure and report on GHG emissions they directly cause (“Scope 1”), and emissions attributable to their electricity purchases (“Scope 2”).
A brewing controversy is whether the SEC might also direct issuers to estimate and report on indirect “Scope 3” emissions up and down corporate supply chains. (Reuters, Jan. 19)
If the Commission potentially mandates “Scope 3” disclosures, the requirement could possibly impose new obligations on some commercial property owners to report on the emissions of their tenants – and some banks to report on the emissions of their borrowers.
Pre-rulemaking comments filed by The Roundtable last year, developed in close coordination with Nareit, point out that building owners should not be required to disclose tenant emissions simply because property owners do not even have access to leased-space energy data in many instances.
Any proposed rule from the SEC will trigger a public feedback process, followed by internal agency review, before it would take effect.

The SEC’s climate rule is considered a major environmental initiative of the Biden Administration, particularly as GHG reduction provisions in the Build Back Better Act face a steep climb to pass the Senate. (Bloomberg, Feb. 8)

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