The Sabin Center for Climate Change Law and the Columbia Center on Sustainable Investment have released a new report, Antitrust and Sustainability: A Landscape Analysis, which gives an overview of the broad purview of antitrust law, and the myriad and complex ways in which it intersects with and affects sustainability goals.
After 40 years of dormancy, antitrust law and enforcement policy are in a period of intense reinvigoration and debate. While Biden Administration officials are taking steps to revitalize the anti-monopoly origins of antitrust and vigorously enforce their Congressional mandates across many sectors, opponents accuse the government of wasting resources on antitrust cases that they believe lack merit. House Republicans recently called Lina Khan, Chair of the Federal Trade Commission, to testify, in an effort to undermine her strong approach to antitrust enforcement, and, as we have previously written, some Republicans—underwritten by the fossil fuel lobby and climate denial think tanks—are weaponizing antitrust in service of their anti-environmental, social, and corporate governance campaigns.
While antitrust laws are being wielded for political purposes today, it is also the case that antitrust has always been political. This area of policy has large allocative effects in the economy and shapes markets in profound ways—its history is one of contentious struggle over who sets the terms of our economy. However, the intersection of environmental, social, and corporate governance and financial risk management issues, sustainability concerns, and antitrust principles is increasingly confused, and it is therefore critical to separate narrative fiction from legal reality.
The urgency of the climate crisis has highlighted the impact of competition policy on non-economic benefits, including efforts to mitigate environmental impacts, to accelerate the energy transition, to protect human rights, and to advance worker rights and prosperity. Central to the intersection of antitrust and sustainability are questions about the purpose of antitrust law. How does competition policy shape the market and allocate resources in ways that impact climate and sustainability goals? Does competition or collaboration among private companies better serve these objectives? Which forms of collaboration are pro-social, and which undermine the public good? These and other complex questions animate the report.
National jurisdictions have diverged in their approach to these issues. In Europe and the UK, competition agencies have included sustainability analyses in their enforcement agenda. They have also issued updated competitor collaboration guidelines that expressly account for coordination on climate and other sustainability goals. In the US, federal agencies have been largely silent on sustainability issues, preferring to focus on vigorous anti-monopoly enforcement, with the expectation that other social benefits flow from protecting competitive markets.
The purpose of the new report is to provoke and support engagement among policymakers, private firms, and the wider public about the ways that competition policy can support sustainable development. However, competition policy and enforcement are only one component of a broad policy framework that shapes private sector sustainability activities. Motivating private actors to align their practices with sustainability and climate goals will require policies and regulations throughout the economy. Antitrust policies and agencies should be a coherent part of this robust policy framework. We consider a range of inherent complexities and aim to chart a path forward in a thoughtful manner.