TRUST ISSUES — Top Biden administration antitrust officials are stressing the view that antitrust enforcement should not be an impediment to companies meeting sustainability goals, but demurring on the idea of engaging directly on when environmental discussions among competitors constitutes illegal collusion. "Antitrust and competition law enforcement is not supposed to get in the way of progress,” Jonathan Kanter, assistant attorney general in the Justice Department’s antitrust division, said at a panel discussion during an American Bar Association antitrust conference in Washington last week. “The antitrust laws and competition laws address anticompetitive, exclusionary behavior that harms competition. I don't see any impediment to progress with respect to any industry including the importance of sustainability.” Wall Street firms have come under particular scrutiny for green commitments made through groups such as the Net-Zero Banking Alliance and Climate Action 100+. Republicans in Congress and state governments have accused financial firms of violating antitrust law and have clawed back state investments and business opportunities. The pressure is working at least on its face: BlackRock and JPMorgan left Climate Action 100+, Bank of America changed its policy on financial coal projects, and insurers fled a net-zero industry group. Whether the firms are actually rolling back environmental pledges or simply trying to defuse antitrust threats isn’t yet clear. But a Democratic state official acknowledged that conflicting priorities among different states does create confusion for companies. "The reason why we have a debate about this is because there is a disagreement,” said Gwendolyn Cooley, who heads up antitrust enforcement at the Wisconsin Attorney General’s office and leads the antitrust task force at the National Association of Attorneys General. Fiona Schaeffer, a partner with the law firm Milbank, called on the Biden administration to provide needed market guidance, noting that these are “hard” issues that can’t simply be left to Congress. “At the same time companies shouldn't use antitrust as an excuse to shirk their responsibilities to promote progress across a wide range of issues,” Kanter responded. If companies are actually committed to addressing climate and sustainability issues, competition should spur a “race to the top,” said Federal Trade Commission Chair Lina Khan. “If firms are really committed to solving some of these problems, they should take the boldness of being market leaders,” Khan said. “And again, there's nothing that our agencies are doing that are inhibiting that.”
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