ESG Enforcement Tracker

Key facts:

In October 2022, the ASIC issued four infringement notices against Tlou Energy Limited, an Australian listed company, for alleged breaches under the Australian Securities and Investments Commission Act 2001. The notices concerned sustainability-related statements made to the Australian Securities Exchange (ASX) in October 2021.

The ASIC held it had reasonable grounds to believe that Tlou had contravened ASIC in respect of a number representations made by Tlou to the ASX, in a presentation referred to as the Clean Energy Presentation, which conveyed that:

• all electricity generated at the Lesedi power station would be carbon neutral via sequestration from around the outset of power generation;
• Tlou had environmental approval and the capability to generate certain quantities of electricity from solar power;
• Tlou’s gas-to-power project would be ‘low emissions’; and
• Tlou was equally concerned with producing ‘clean energy’ through the use of renewable sources as it was with developing its gas-to-power project.

ASIC was concerned that Tlou either did not have a reasonable basis to make these representations, or that they were factually false or misleading, taking into account the following:

• Tlou had not comprehensively investigated nor obtained studies related to achieving carbon neutrality via carbon sequestration.
• Tlou did not have environmental approval to construct the solar farm, nor did it have a solar power generation licence, nor had it acquired or installed solar power infrastructure. It also did not plan to generate electricity from solar power until after it was selling electricity generated through the combustion of coal bed methane.
• Tlou’s primary asset was predominantly a fossil fuel project, and its plans to develop solar and hydrogen energy were at an early stage and were not planned to be significantly advanced until sometime after Tlou was earning revenue through the sale of electricity generated from the combustion of natural gas.
• It also had not undertaken a greenhouse gas assessment, so had no reasonable basis to assert its gas-to-power project would be low emissions.
  Tlou paid a total of AU$53,280 to comply with the four infringement notices.

In June 2022, ASIC published Information Sheet 271, with guidance to funds and companies on how to avoid greenwashing when offering or promoting sustainability-related products.