Climate and Antitrust – A Discussion with COSAL’s Climate and Antitrust Committee

On June 5, 2024, members of COSAL’s Climate and Antitrust Committee hosted a presentation at Robins Kaplan LLP in New York to present the findings of their article, Climate and Antitrust, 37 Geo. Env't L. Rev. (forthcoming 2025). In recent years, climate agreements have come under antitrust scrutiny. While no enforcement actions have been taken, threats of potential enforcement from some members of Congress and other government officials have had a chilling effect, causing some participants of climate agreements to drop out citing antitrust concerns.   

Co-authors Nicole Veno, Jennifer Kelly, and Geoffrey Kozen shared their conclusion that most climate agreements, particularly agreements to reach net-zero carbon emissions by a specific date, do not violate the antitrust laws. In support of their conclusion, they cite to the variety of ways in which companies can reach net zero, the politically motivated nature of such agreements, and the fact that there is no consumer market for carbon emissions.  The discussion was particularly timely in light of continuing discussion of antitrust issues relating to decarbonization efforts and the House Judiciary Subcommittee on the Administrative State, Regulatory Reform and Antitrust’ s June 12, 2024 hearing, "Climate Control: Decarbonization Collusion in Environmental, Social, and Governance (ESG) Investing.” The authors explained that strong antitrust enforcement and joint efforts to reduce carbon emissions can co-exist, and urged the DOJ and FTC to issue guidance on the topic.