Sustainability Assurance

A robust literature examines sustainability disclosures by public corporations, but legal scholarship has largely overlooked the role of third-party assurance—or verification—of such disclosures. This is a notable omission given the extensive literature on the auditing of financial statements, a related form of assurance.

This article responds by examining the role of assurance in sustainability reporting. In keeping with the theme of this symposium volume, it draws on US and EU law. Our discussion begins in Part I with sustainability disclosures, focusing on the requirements and practices of public companies. In Part II, we introduce sustainability assurance as well as assurance providers (or sustainability assurers)—a type of green gatekeeper that assures the accuracy of sustainability information. In Part III, we assess the market mechanisms that may constrain assurance providers, arguing that these mechanisms—reputational incentives, for the most part—may fail to prevent false sustainability assurances and will be less effective than those that constrain traditional gatekeepers, including auditors. We also generally examine the strength of primary regulation of sustainability claims. In Part IV, we sketch some considerations relevant to determining how policymakers should respond on the premise that regulation is justified.