Environmental Catastrophes: The Buck Stops in the C-Suite!

By Lawrence B. Cahill, CPEA, Wharton IGEL Alumni Advisory Group

Introduction

Corporate environmental, health and safety (EHS) programs require a substantial commitment on the part of executive management in order to be successful.  Programs, policies, and procedures must be defined and implemented, resources committed, audits assessing performance conducted, deficiencies corrected, and improvements made.  If all goes well, there is a presumption that unwanted surprises and incidents will be rare, resulting in fewer management headaches and no material adverse personal consequences for senior managers.  Truly a win-win for both the company and its executives.

Sadly, it is not always the case that senior corporate executives participate actively in EHS programs.  A passive approach is much more common as EHS compliance and performance is often deemed to be the sole responsibility of EHS and Sustainability Managers in the organization.  This passive approach can be perilous for both the individual executive and the company.  Senior executives should be involved actively and there are ways to test whether this involvement is real or not.  What follows is a discussion of why participation and commitment are important and a way to test whether it is truly happening in a given organization.

Why Commitment is Important to the Executive

Some believe that environmental incidents and catastrophes will have an impact on a company’s reputation but will not directly affect senior corporate executives.  For example, a recent column in the on-line Environmental Leader was entitled “No Reputational Penalty for CEOs on Environmental Lawsuits.”[1]  The column refers to a study published in the Journal of Contemporary Accounting & Economics entitled “Corporate litigation and changes in CEO reputation: Guidance from U.S. Federal Court lawsuits”.[2]  This study, based on almost 10,000 cases filed in U.S. federal court over an eight-year period from 2000-2007, concluded that there was:

“…no evidence of any reputational penalty for CEOs following environmental allegations against their companies,” [University of Adelaide, South Australia] business school lecturer Dr. Chelsea Liu told Environmental Leader. “This means that the executive labor market, driven by the collective actions of corporations in the marketplace, is not inclined to ‘shun’ those CEOs whose firms are accused of environmental violations. This is very different from how the market reacts to allegations of financial fraud —prior research shows that CEOs whose firms are accused of financial fraud do experience significant reputational damage.”

Yet, actual notable cases in recent history would appear to contradict the study’s conclusions.  There are any number of instances where very senior executives, including several CEOs, have had their reputations permanently sullied and some have even been sentenced to prison for negligence with respect to EHS mismanagement.  These include the following five cases:

  • Union Carbide Corporation (UCC). Warren Anderson, the then CEO of UCC, and seven other employees were sentenced to 2 years in prison in June 2010 for negligence (the maximum allowed by Indian Law) as a result to the December 1984 Methyl Isocyanate release in Bhopal, India, which killed an estimated 4,000 people and injured another 500,000.  Anderson died in Florida in 2014 at the age of 92 and served no prison time in India as he was not extradited.  Interestingly, “Bhopal protestors” picket the Dow Chemical Headquarters in Midland, MI every year at the annual shareholders meeting.  Dow purchased the assets of UCC in 2001, a full 17 years after the incident.  Should the Dow/DuPont merger announced in December 2015 go through one wonders if the protesters will picket in Wilmington, DE as well, the historical headquarters of DuPont.  Not something that executives in either company presumably relish.
  • BP. After a 28-year career with BP, Tony Hayward, the now ex-CEO, was forced to resign on October 1, 2010 as a result of the April 20, 2010 Deepwater Horizon oil spill in the Gulf of Mexico.  Ironically, Mr. Hayward had replaced Lord John Browne as CEO in 2007 who resigned partly as a result of the BP Texas City Refinery fire that killed 15 people in 2005.
  • Massey Energy. Don Blankenship, the now ex-CEO of Massey Energy, was forced to resign on December 3, 2010 after the April 5, 2010 explosion at the Upper Big Branch Mine in West Virginia, which killed 29 miners.  On April 6, 2016, Mr. Blankenship was sentenced to one year in prison for “conspiracy to willfully violate mine health and safety standards.”
  • Tokyo Electric Power Company (TEPCO). Three former TEPCO executives were indicted for negligence on February 29, 2016 as a result of the Fukushima nuclear power plant meltdown caused by a March 2011 tsunami.  In March 2015, a Japanese National Police Agency report confirmed 15,894 deaths, 6,152 injuries and 2,562 people missing as a result of the tsunami.
  • Volkswagen. The now ex-CEO of Volkswagen, Martin Winterkorn, was forced to resign on September 23, 2015 as a result of the 2015 “Clean Diesel Scandal” in the U.S.  Winterkorn accepted responsibility for the scandal while asserting that he was “not aware of any wrongdoing on my part.”  Volkswagen and its executives face possible criminal enforcement action from the U.S. Department of Justice and over 25 State Attorneys General.

It is pretty clear then that there are indeed personal consequences for senior executives when significant EHS incidents occur.  Any individual sitting in one of the chairs in the C-Suite would do themselves a favor by becoming more involved in the company’s EHS management.  And in fact, senior management reviews are a mandatory requirement of ISO 9000 (Quality), ISO 14000 (Environment) and OSHA 18000 (Health and Safety) management system standards often adopted by organizations to better govern operations.  For example, ISO 14000 requires the following: “Top management shall review the organization’s environmental management system, at planned intervals, to ensure its continuing suitability, adequacy and effectiveness.”[3]  And indeed, there are companies, such as Occidental Petroleum, where members of the Audit Committee of the Board of Directors regularly review actual site EHS audit reports.  Although this particular activity should not be relied upon exclusively for assurance purposes, it does provide valuable information on both leading and lagging EHS compliance and performance indicators.

Evaluating Executives’ Commitment

How then does one test whether key executives have an understanding of the implementation and results (and potential consequences) of the company’s EHS management and programs?  One way is to interview these key executives as part of an annual review of EHS program performance.  This annual review can be conducted internally or through a third party.  The evaluation should involve a detailed review of policies and procedures, interviews with a sample of executives at various levels of the organization, and testing the implementation of the EHS program at the site level through assessments or audits at a sample of operating facilities.

The interviewing of key executives is, then, a key component of an EHS program evaluation. In conducting these interviews any interviewer must be diligent, thorough but also respectful of the executive’s time. They are very busy people.  The questions provided below in Table 1 can be used to address and test an individual executive’s involvement and commitment.  It’s important to note that each executive must tailor his or her involvement to best support the organization as effectively as possible.  So, the interviewer should not assume that any given executive should be involved in all the aspects suggested by the questions.  For example, one executive might be involved in the setting of corporate EHS policy and sustainability goals, while another might be responsible for implementing programs within his or her division to achieve those goals, while still others might actually visit plants in their business units periodically to assess site-level performance and gather feedback on the challenges the site management experiences in meeting the goals.

Based on actual experience the questions can be covered in 30-45 minutes. Face-to-face interviews are preferred but a phone interview or video conference can be used as well with comparable results.  Note that the questions are designed to elicit more than a yes/no response.  The interviewer might also discover that the executive will request to see the questions in advance.  That is perfectly acceptable and might actually produce a more productive session as there is a good chance that the executive will have given the questions considerable thought in advance.  In some cases, they will have actually written-out their answers which can enhance the face-to-face discussion.

TABLE 1: Ten Questions to Test an Executive’s Involvement in a Corporate EHS Program

Area of Inquiry Question
1. Personal Involvement What has been your involvement with the corporate EHS program to date?
2. Program Objectives Do you understand the objectives of the program? What are they? Do you believe the objectives are being met? Why or why not?
3. Program Effectiveness Do you believe the program is effective, adequately resourced, and adds value? Specifically, why or why not?
4. Organizational Setting Do you believe that the program is positioned within the organization so as to achieve the appropriate independence and authority? If not, what could or should be done?
5. Stakeholder Involvement Are the concerns of all stakeholders’ (e.g., management, employees, stockholders, regulators, NGO’s, communities) being considered appropriately? Any stakeholders’ interests that are under-represented?
6. Management of Change Is management of change a key component of the program?  If so, how do you know?  If not, why not?
7. Risk Identification Does the program adequately identify and define the key EHS risks faced by the company?  In your estimation, what are the top three risks?
8. Program Outputs Do you see what you need to see with regards to the outputs of the program? If not, what would you like to see that you don’t see now?
9. Corrective Actions Is there sufficient management attention given to correcting identified program deficiencies and needed improvements in a timely fashion? How do you know?
10. Improvements What is the EHS program doing well and should continue to do? If you could change or add one thing to the program to make it better what would that be?

Note that the very last question is extremely important. So, the interviewer has to be careful to manage the interview process so that there will be time for it to be asked and answered.  Executives are very smart and savvy people.  Asking them to identify one thing they might change or add to the EHS program to make it better will often elicit some sage advice and maybe even some “out of the box” thinking.

Closure

Executive participation in and commitment to EHS performance is one key to assuring company-wide compliance and potentially avoiding catastrophes. Experience shows that there is no guarantee that executive participation will be a ‘fail-safe” measure but rigorous management support throughout the organization can be extremely valuable.  Involving executives in an active way can help bolster the program and provide the support necessary to accomplish goals, achieve compliance and minimize (but sadly not eliminate) the potential for disasters.

[1] Hardcastle, Jessica Lyons, “No Reputational Penalty for CEOs on Environmental Lawsuits,” Environmental Leader, March 7, 2016

[2] Liu, Chelsea, et.al., “Corporate litigation and changes in CEO reputation: Guidance from U.S. Federal Court lawsuits,” Journal of Contemporary Accounting & Economics, Volume 12, Issue 1, April 2016, Pages 15–34.

[3] International Organization for Standardization (ISO), “Environmental management systems – Requirements for guidance and use,” ISO14001:2015, Third Edition, Section 9.3, September 15, 2015

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