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Group sues Texas over law banning state business with firms 'boycotting' fossil fuels

A business group is suing Texas over the so-called “anti-ESG law.” Photo via Getty Images

A progressive business group sued Texas on Thursday over a 2021 law that restricts state investments in companies that, according to the state, “boycott” the fossil fuel industry.

The American Sustainable Business Coalition filed suit against Attorney General Ken Paxton and Comptroller Glenn Hegar, alleging that the law, Senate Bill 13, constitutes viewpoint discrimination and denies companies due process, in violation of the First and Fourteenth Amendments. The group asked a federal judge in Austin to declare the statute unconstitutional and permanently block the state from enforcing it.

“Texas has long presented itself as a business-friendly state where limited state regulation facilitates the ability of businesses to conduct themselves as they see fit,” lawyers for the group wrote. “Yet in 2021, the Legislature passed SB 13 to coerce and punish businesses that have articulated, publicized, or achieved goals to reduce reliance on fossil fuels.”

Known as the “anti-ESG law” — which stands for “environmental, social and governance” — Senate Bill 13 requires state entities, including state pension funds and the enormous K-12 school endowment, to divest from companies that have reduced or cut ties with the oil and gas sector and that Texas officials deem antagonistic to the fossil fuel industry.

In approving the legislation, Republican officials looked to protect Texas oil and gas companies and to bite back at Wall Street investors pulling financial support from the industry in an effort to incorporate climate risk into their investments and respond to pressure to divest from fossil fuels, which play an outsized role in accelerating the climate crisis.

In March, Texas Permanent School Fund, Austin, cut ties with BlackRock, which managed roughly $8.5 billion of the $52.3 billion endowment and which was listed by Texas as one of the companies that should not handle state business.

The statute defines “boycott” as, “without an ordinary business purpose, refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations with” a fossil fuel company. It also prohibits state agencies from doing business with a firm unless it affirms that it does not boycott energy companies. And it charges the state comptroller with preparing and maintaining a blacklist of companies based on “publicly available information” and “written verification” from the company.

In a statement, Hegar, the comptroller, called the lawsuit an “absurd” attempt to “force the state of Texas and Texas taxpayers to invest their own money in a manner inconsistent with their values and detrimental to their own economic well-being.”

“This left-wing group suing Texas,” he said, “is hiding their true intent: to force companies to follow a radical environmental agenda that is often contrary to the interests of their shareholders and to punish those companies that do not fall into lockstep and put politics above earnings.”

Paxton’s office did not immediately reply to a request for comment.

Texas has blacklisted more than 370 investment firms and funds, including BlackRock and funds within major banks like Goldman Sachs and J.P. Morgan. BlackRock, among other companies, pushed back on its designation as “boycotting” fossil fuels, calling the decision “not a fact-based judgment” and citing over $100 billion in investments in Texas energy companies.

“Elected and appointed public officials have a duty to act in the best interests of the people they serve,” a BlackRock spokesperson said at the time. “Politicizing state pension funds, restricting access to investments, and impacting the financial returns of retirees, is not consistent with that duty.”

In Thursday’s suit, the American Sustainable Business Coalition argued that the physical and financial risks posed by climate change are a legitimate investment and business consideration and cause for efforts to reduce carbon emissions.

The group said the Texas law was enacted to go after what Republican lawmakers saw as a “burgeoning fossil fuel discrimination movement,” and that it effectively “infringes rights of free speech and association under a scheme of politicized viewpoint discrimination” and allows Texas officials to “punish companies they believe are insufficiently supportive of the fossil fuel industry.”

The group argued that the law penalizes companies for their energy policies and membership in certain business associations, and compels them to adopt positions that align with Texas officials “as a condition” of doing business with state entities.

The suit also alleged that the law violates companies’ right to due process because vagueness in the statute “encourages arbitrary enforcement” and fails to provide blacklisted companies a fair process to contest their designation.

Texas blacklisted “the flagship investment funds” of Etho Capital and Sphere, two climate-focused firms represented by the American Sustainable Business Coalition, according to the lawsuit.

“Among ASBC’s many projects are efforts to encourage sustainable investing and sustainable business practices,” the lawsuit reads. “These are all cornerstones of the modern Texas economy. Yet, SB 13 takes aim at, and punishes, companies that speak about, aspire to, and achieve this goal.”

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This story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.

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A View From HETI

20-plus companies will pitch at Energy Tech Nexus' Pilotathon during Houston Energy & Climate Startup Week. Photo via Getty Images.

Energy Tech Nexus will host its Pilotathon and Showcase as part of Houston Energy & Climate Startup Week next Tuesday, Sept. 16, featuring insightful talks from industry leaders and pitches from an international group of companies in the clean energy space.

This year's event will center around the theme "Energy Access and Resilience." Attendees will hear pitches from nine Pilotathon pitch companies, as well as the 14 companies that were named to Energy Tech Nexus' COPILOT accelerator earlier this year.

COPILOT partners with Browning the Green Space, a nonprofit that promotes diversity, equity and inclusion (DEI) in the clean energy and climatetech sectors. The Wells Fargo Innovation Incubator (IN²) at the National Renewable Energy Laboratory backs the COPILOT accelerator, where companies are tasked with developing pilot projects for their innovations.

The nine Pilotathon pitch companies include:

  • Ontario-based AlumaPower, which has developed a breakthrough technology that converts the aluminum-air battery into a "galvanic generator," a long-duration energy source that runs on aluminum as a fuel
  • Calgary-based BioOilSolv, a chemical manufacturing company that has developed cutting-edge biomass-derived solvents
  • Atlanta-based Cultiv8 Fuels, which creates high-quality renewable fuel products derived from hemp
  • Newfoundland-based eDNAtec Inc., a leader in environmental genomics that analyzes biodiversity and ecological health
  • Oregon-based Espiku Inc., which designs and develops water treatment and mineral extraction technologies that rely on low-pressure evaporative cycles
  • New York-based Fast Metals Inc., which has developed a chemical process to extract valuable metals from complex toxic mine tailings that is capable of producing iron, aluminum, scandium, titanium and other rare earth elements using industrial waste and waste CO2 as inputs
  • New Jersey-based Metal Light Inc., which is building a circular, solid metal fuel that will serve as a replacement for diesel fuel
  • Glasgow-based Novosound, which designs and manufactures innovative ultrasound sensors using a thin-film technique to address the limitations of traditional ultrasound with applications in industrial, medical and wearable markets
  • Calgary-based Serenity Power, which has developed a cutting-edge solid oxide fuel cell (SOFC) technology

The COPILOT accelerator companies include:

  • Accelerate Wind
  • Aquora Biosystems Inc.
  • EarthEn
  • Electromaim
  • EnKoat
  • GeoFuels
  • Harber Coatings Inc.
  • Janta Power
  • NanoSieve
  • PolyQor Inc.
  • Popper Power
  • Siva Powers America
  • ThermoShade
  • V-Glass Inc.

Read more about them here.

The Pilotathon will also include a keynote from Taylor Chapman, investment manager at New Climate Ventures; Deanna Zhang, CEO at V1 Climate Solutions; and Jolene Gurevich, director of fellowship experience at Breakthrough Energy. The Texas Climate Tech Collective will present its latest study on the Houston climate tech and innovation ecosystem.

CEOs Moji Karimi of Cemvita, Laureen Meroueh of Hertha Metals and others will also participate in a panel on successful pilots. Investors from NetZero Ventures, Halliburton Labs, Chevron, Saudi Aramco, Prithvi VC and other organizations will also be on-site. Find registration information here.

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