Resilient LLP (formerly DeMarco Allan LLP)
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DT Vollmer

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German Court Finds Apple Watch Not A ‘CO2-neutral Product’

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A panel of judges of the Commerce Chamber of the Frankfurt am Main Regional Court (the Court) has released its decision barring Apple from promoting three Apple Watch models as “CO2-neutral products”. The Court granted an injunction sought by Deutsche Umwelthilfe (Environmental Action Germany), finding that advertising the watches as a “CO2-neutral product”, based in part on the purchase of carbon credits from “nature-based” projects, was misleading under German competition law. This bulletin briefly summarizes the key findings of the Court. Decision. In finding that Apple must refrain from advertising the three models of Apple Watches as a “CO2-neutral product”, the Court determined that the claims were misleading and violated s. 5(1) of the Act against Unfair Competition, which prohibits misleading business acts that are likely to induce consumers or other market participants to make a business decision that they would otherwise not have made.  Apple’s claims were based, in part, on the purchase of carbon credits from a forest project in Paraguay. However, the Court held that 75% of eucalyptus plantations in the carbon offsetting forest projects in Paraguay were only leased until 2029 and that the CO2 offsetting could therefore only be guaranteed until 2029. The Court also rejected Apple’s argument that Verra’s buffer pool account was sufficient to secure the uncertainty of lease extensions according to the VCS Standard, and noted that in the event of non-renewal of the leases, the VCS Standard only allowed Apple to continue to monitor the forest project: “The possibility of only monitoring the remote part of the project area for the remaining duration and only having the buffer account mechanism intervene in the event of loss is not a CO2 compensation measure that is equally suitable for the continuation of the forest project beyond 2029.” (translated from the original German) In finding Apple’s claims misleading to…

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Verra and S&P Announce Major Registry Partnership

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Verra and S&P Global Commodity Insights (S&P) yesterday announced a new partnership that will see Verra overhaul its registry using S&P’s registry-build infrastructure software. The organizations say that the partnership is a major step toward “more scalable, interoperable, and digitally integrated infrastructure” and represents collaboration between the world’s largest standards body for climate action and sustainable development and the world’s largest commodities and benchmark information provider. The new registry will roll out in two stages, with a foundational phase launching within the next six months and the second phase launching in 2026. It is expected to include: Integration, and a two-way data exchange, with the Verra Project Hub, enabling project proponents to prepare project documents and move through the full lifecycle (i.e., registration, monitoring, issuance) with less duplication and greater efficiency; Expanded digitization and system connectivity, reducing administrative burden for developers and accelerating verification and credit issuance timelines; Transaction-ready application programming interfaces (APIs) that allow for automated transfers and retirements, replacing manual processes and enabling frictionless, high-volume trading across brokers, exchanges, and marketplaces; Improved transparency and customizable reporting tools; and Foundational infrastructure for future innovations, including expanded Article 6 and CORSIA functionality and integration with various programs, governments, market participants, exchanges, insurers, and financial platforms. We anticipate that details on timelines, new access procedures, and system improvements will be announced in September. The Verra-S&P partnership follows the January 28, 2025 announcement that Winrock International’s Environmental Resources Trust (ERT), will use Intercontinental Exchange, Inc.’s (ICE’s) registry technology service, ICE GreenTrace, for its crediting programs: American Carbon Registry (ACR); the Architecture for REDD+ Transactions (ART); and the new sectoral crediting standard in development for the Energy Transition Accelerator (ETA).   For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com or Jonathan McGillivray at jonathan@resilientllp.com.

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I4PC Files Greenwashing Complaint with Alberta Securities Regulator

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Investors for Paris Compliance (I4PC), a shareholder advocacy organization, yesterday filed a complaint with the Alberta Securities Commission (ASC), alleging that two major energy companies have engaged in misleading disclosure regarding their net zero plans. The complaint targets Cenovus Energy and Enbridge Inc., two reporting issuers that are principally regulated in Alberta. A copy of the full complaint is available here [PDF]. The complaint is based on section 92(4.1) of the Securities Act (Alberta), which prohibits reporting issuers from making misleading or untrue statements that would reasonably be expected to have a significant effect on the market price or value of a security, as well as CSA Staff Notice 51-333 Environmental Reporting Guidance and CSA Staff Notice 51-358 Reporting of Climate Change-related Risks. The complaint also makes reference to the anti-greenwashing provisions of the Competition Act that were introduced through Bill C-59. Submissions. I4PC submits that: Cenovus and Enbridge have a “core net zero contradiction” by engaging in significant fossil fuel expansion while claiming alignment with net zero; Cenovus and Enbridge have consistently failed to meet core transition metrics on net zero, particularly around capital expenditures; Cenovus and Enbridge have consistently engaged in “overly promotional disclosure regarding net zero”, both directly and via associations; and Cenovus has been allowed to foster investor uncertainty with lack of clarity regarding its net zero commitment (which I4PC expressly ties to Cenovus’ withdrawal of net-zero disclosures prompted by Bill C-59). Remedies Sought. I4PC requests that the ASC grant the following remedies:  An investigation be launched into existing and past climate disclosures of Cenovus and Enbridge to assess the accuracy and adequacy of their disclosures. Because the practices of Cenovus and Enbridge are repeated by other Alberta-registered oil and gas companies, that the investigation also consider evidence from peers and competitors. That overly promotional disclosure in relation to net…

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Commonwealth Climate and Law Initiative Publishes Resilient LLP Legal Opinion on Directors’ Duties & Nature Risks in Canada

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We are pleased to announce the release of Resilient LLP’s legal opinion, Nature-related risks and the duties of directors of Canadian corporations, commissioned and published by the Commonwealth Climate and Law Initiative (CCLI) and co-authored by Lisa DeMarco and DT Vollmer. Read the Executive Summary with the full text of the legal opinion available on the CCLI website here. CCLI’s press release is also available here. The legal opinion provides guidance on the legal obligations of directors of Canadian for-profit corporations in relation to nature-related risks and outlines how such risks fall within directors’ legal duties under Canadian law: Nature-related risks fall within core legal director duties. Under the Canada Business Corporations Act, directors must oversee foreseeable and material nature-related risks under established duties of care and loyalty. This includes physical (e.g. wildfires), transition (e.g. regulation), and systemic (e.g. ecosystem collapse) nature-related risks. Inaction could expose boards to liability. Directors who fail to identify or respond to material nature-related risks could face a wide range of legal action including claims for breach of duty, shareholder or creditor lawsuits, regulatory enforcement for misleading disclosure, greenwashing and consumer protection claims, negligence or nuisance suits, and liability for failing to respect Indigenous rights. Governance expectations are rising. Directors are not expected to be environmental experts, but they must be reasonably informed. Courts will expect boards to demonstrate a reasoned, informed, and well-documented approach to nature-related risks. Overseeing these risks is both a legal and strategic imperative. Effective governance means understanding the corporation’s nature-related dependencies and impacts, engaging relevant stakeholders and Indigenous rightsholders, and integrating nature into boardroom decision-making. Key expert insights: Lisa DeMarco, Senior Partner and CEO, Resilient LLP, and lead author of the legal opinion: “This opinion makes the legal position clear. Directors don’t need to be expert scientists or activists, but…

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International Court of Justice Releases Landmark Climate Change Opinion

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The International Court of Justice (ICJ) today released its unanimous advisory opinion on obligations of States in respect of climate change (the Advisory Opinion). The Advisory Opinion, delivered by Judge Yuji Iwasawa and non-binding, determined that States may face legal consequences under international law for failing to meet their obligations to address climate change and protect the environment. This bulletin briefly summarizes background information, key findings of the Advisory Opinion, and highlights from separate opinions of ICJ judges delivered alongside the Advisory Opinion. Background. On 29 March 2023, the General Assembly of the United Nations adopted a resolution requesting the ICJ to give an advisory opinion on the following questions: (a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases (GHG) for States and for present and future generations? (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change? Key findings. Key findings of the Advisory Opinion in response to question (a) include: International climate change treaties, including the United Nations Framework Convention of Climate Change (UNFCCC), Kyoto Protocol (KP) and the Paris Agreement (PA), set forth binding obligations for States parties to ensure the protection of the climate system and other parts of the environment from anthropogenic GHG emissions. Customary international law sets forth obligations for States to ensure the…

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