CLS Blue Sky Blog

Latham & Watkins Discusses New CFTC Climate Risk Unit

On March 17, 2021, the Commodity Futures Trading Commission (CFTC) announced the establishment of an interdivisional Climate Risk Unit (CRU) to assess the risks to US financial stability posed by climate change. The CRU aims to be a catalyst for change by highlighting the derivatives markets’ role in understanding, pricing, and addressing climate-related risks, as well as its role in the transition to a low-carbon economy.

The announcement was made by Acting Chairman Rostin Behnam, whose efforts to steer the CFTC’s focus toward climate-related impacts on the financial system led to the publication of a landmark report by the CFTC’s Climate-Related Market Risk Subcommittee of the Market Risk Advisory Committee in September 2020. The report, titled “Managing Climate Risk in the U.S. Financial System” (the Report), makes 53 recommendations to help mitigate climate risk to financial markets. See Latham’s discussion of the report here.

According to the Report (and further supported by Acting Chairman Behnam), the legislative establishment of an economy-wide carbon pricing regime to drive allocation of capital to incentives that combat climate change is among the most important of these recommendations. Moreover, the Report highlights the need for regulators to do everything within their mandate to understand and address climate-related financial market risk.

The establishment of the CRU follows from the Report’s “central message” that US financial regulators must recognize climate change risks and “move urgently and decisively” to monitor, analyze, and quantify these risks.

The CRU Agenda

The CRU will work to address many of the Report’s recommendations, and will drive the CFTC’s efforts to combat climate risks by:

CFTC at the Forefront

The CRU represents a strong response by the CFTC to the “global call to action on tackling climate change.” The CRU will focus CFTC efforts and resources on the critical task of working with market participants, global regulators, and working groups on forming consistent standards and oversight of climate-risk-related derivatives products.

The CFTC’s announcement was silent on enforcement. However, the agency has extensive enforcement powers in the derivatives markets that it regulates, and also broad anti-manipulation and anti-fraud authority in spot markets. While not immediately apparent, the CFTC may look to wield its enforcement authority in new and innovative ways in climate-related markets.

Under a new US Administration that has demonstrated its intention to reckon with climate change, the CFTC is positioning itself as a key player in building a climate-resilient financial system.

This post comes to us from Latham & Watkins LLP. It is based on the firm’s memorandum, “CFTC Takes Action With New Climate Risk Unit,” dated March 23, 2021, and available here. The authors gratefully acknowledge Deric Behar’s contributions to this article.

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