ASIC infringement notices to Tlou Energy and Black Mountain Energy over carbon-neutral, low-emissions and net-zero statements (2022-2023)
Short record: the main facts, with sources. A full case file has not been prepared.
- The record does not name which of my species, waters, soils or forests were harmed.
Australia's securities regulator ASIC said that Tlou Energy paid A$53,280 to comply with four infringement notices (media release of 27 October 2022) and that Black Mountain Energy paid A$39,960 to comply with three (media release of 5 January 2023), over sustainability-related statements made to the ASX. ASIC stated that payment of an infringement notice is not an admission of guilt or liability.
ASIC media release 22-294MR, 27 October 2022 (notices paid 25 October 2022). Black Mountain Energy paid A$39,960 to comply with three notices (ASIC media release 23-001MR, 5 January 2023). Payment is not an admission of guilt or liability.
Status As of 5 January 2023: both companies had paid their infringement notices, which ASIC stated is not an admission of guilt or liability; no later development found.
- Tlou Energy — Paid $53,280 to comply with four infringement notices; payment is not an admission of guilt or liability Australian Securities and Investments Commission (ASIC)
- Black Mountain Energy — Paid $39,960 to comply with three infringement notices; payment is not an admission of guilt or liability Australian Securities and Investments Commission (ASIC)
What happened
On 27 October 2022 the Australian Securities and Investments Commission (ASIC) said it had taken its first action for "greenwashing": Tlou Energy Limited (Tlou), a listed energy company, had paid a total of $53,280 to comply with four infringement notices over alleged false or misleading sustainability-related statements made to the Australian Securities Exchange (ASX) in October 2021. The notices concerned statements and images in two ASX announcements which claimed that electricity produced by Tlou would be carbon neutral; that Tlou had environmental approval and the capability to generate certain quantities of electricity from solar power; that Tlou's gas-to-power project would be "low emissions"; and that Tlou was equally concerned with producing "clean energy" through the use of renewable sources as it was with developing its gas-to-power project.
The four notices were given on 18 October 2022 under section 12GX of the ASIC Act. Each states that ASIC had reasonable grounds to believe that Tlou had contravened section 12DB(1)(a) of the ASIC Act, which concerns false or misleading representations about the standard, quality, value or grade of services, and each sets the amount payable at $13,320. The representations were published to the ASX on 20 October 2021 (two notices), 21 October 2021 and 25 October 2021, in a presentation and an operational report. In the notice on the carbon-neutral statement, ASIC states that Tlou had not undertaken any substantive modelling of the likely carbon dioxide emissions that would have to be offset and had not investigated whether carbon sequestration was a feasible method of offsetting them. ASIC said it was concerned that Tlou either did not have a reasonable basis to make the representations, or that the representations were factually incorrect. Tlou paid the notices on 25 October 2022.
On 5 January 2023 ASIC announced that Black Mountain Energy Limited (BME), also a listed energy company, had paid a total of $39,960 to comply with three infringement notices over alleged false or misleading sustainability-related statements made to the ASX between 23 December 2021 and 8 September 2022. The notices were given on 20 December 2022 under section 12GX of the ASIC Act; each states that ASIC had reasonable grounds to believe that BME had contravened section 12DB(1)(a) and sets the amount payable at $13,320. The statements, in three ASX announcements, claimed that BME was creating a natural gas development project with "net-zero carbon emissions" and that the greenhouse gas emissions associated with Project Valhalla would be net zero. In the notice on the investor presentation of 23 December 2021, ASIC states that BME had not progressed any specific works related to its net zero aim, had not allocated funding for such works and had not undertaken specific modelling of the carbon dioxide emissions likely to arise from production of gas from Project Valhalla. ASIC said it was concerned that BME either did not have a reasonable basis to make the representations, or that the representations were factually incorrect. The media release says BME paid the notices on 3 January 2023; ASIC's infringement notices register lists 5 January 2023.
- 202120, 21 and 25 October: Tlou publishes to the ASX the statements covered by four ASIC infringement notices
- 202123 December: BME publishes to the ASX the first of the statements covered by three ASIC infringement notices
- 202227 May: BME publishes a further statement covered by a notice
- 20228 September: BME publishes the last of the statements covered by the notices
- 202218 October: ASIC gives Tlou four infringement notices under section 12GX of the ASIC Act, each for $13,320
- 202225 October: Tlou pays the notices; 27 October: ASIC media release 22-294MR
- 202220 December: ASIC gives BME three infringement notices, each for $13,320
- 20233 January: BME pays the notices (ASIC media release; the register lists 5 January); 5 January: ASIC media release 23-001MR
What was said
“must ensure they can support those statements and have a reasonable basis for doing so”
Where accounts differ
Each party's account, side by side, with its source. The record does not settle these points; it shows them.
The notices were paid on 3 January 2023.
Australian Securities and Investments Commission (ASIC)BME paid the infringement notices on 3 January 2023; the report cites media release 23-001MR as dated 5 January 2023.
Australian Securities and Investments Commission (ASIC)Lists 5 January 2023 as the date paid.
Australian Securities and Investments Commission (ASIC)How it looked
Shown
- Electricity produced by Tlou would be carbon neutral; Tlou had environmental approval and the capability to generate certain quantities of electricity from solar power; its gas-to-power project would be "low emissions"; it was equally concerned with producing "clean energy" through renewable sources as with developing its gas-to-power project (statements and images in two ASX announcements, as described by ASIC).Tlou Energy · Australian Securities and Investments Commission (ASIC)
- A natural gas development project with "net-zero carbon emissions"; greenhouse gas emissions associated with Project Valhalla would be net zero (three ASX announcements, as described by ASIC).Black Mountain Energy · Australian Securities and Investments Commission (ASIC)
Recorded
- ASIC gave Tlou four infringement notices on 18 October 2022 under section 12GX of the ASIC Act. Each states that ASIC had reasonable grounds to believe that Tlou contravened section 12DB(1)(a) of the ASIC Act (false or misleading representations about the standard, quality, value or grade of services) and sets the amount payable at $13,320.
- ASIC said it was concerned that Tlou either did not have a reasonable basis to make the representations, or that the representations were factually incorrect. Tlou paid a total of $53,280 on 25 October 2022.
- The notice on the operational report published on 25 October 2021 (S02563038) states the same carbon-neutrality representation as the presentation notice: that all electricity generated at the Lesedi power station would be carbon neutral via sequestration from around the outset of power generation.
- The notice on the presentation of 21 October 2021 (S02563039) concerns the statement "Environmental approval for 20MW gas-fired power and 20MW of Solar Power" and a diagram of solar capacity. It states that Tlou did not have environmental approval to construct a 20MW solar farm in addition to 20MW of gas-fired power, did not have a generation licence for up to 10MW of solar electricity and had not installed solar power infrastructure at the project site.
- The notice on the clean-energy statements of 20 October 2021 (S02563040) states that Tlou's primary asset was predominantly a fossil fuels project, that its solar and hydrogen plans were at an early stage, and that Tlou had not undertaken a greenhouse gas assessment and had no reasonable basis to assert that its gas-to-power project would be "low emissions".
- ASIC gave BME three infringement notices on 20 December 2022 under section 12GX of the ASIC Act on the same basis; each sets the amount payable at $13,320.
- ASIC said it was concerned that BME either did not have a reasonable basis to make the representations, or that the representations were factually incorrect. BME paid a total of $39,960.
- ASIC stated that payment of an infringement notice is not an admission of guilt or liability.
In nature's name
Promised
- “electricity produced by Tlou would be carbon neutral” — Tlou Energy (2021-10-20) Australian Securities and Investments Commission (ASIC)
- “a natural gas development project with "net-zero carbon emissions"” — Black Mountain Energy (2021-12-23) Australian Securities and Investments Commission (ASIC)
Money moved in nature's name
| What | Kind | Amount | Period |
|---|---|---|---|
| Paid by Tlou Energy to comply with four ASIC infringement notices (each notice states $13,320) Tlou Energy Australian Securities and Investments Commission (ASIC) | Penalty | 0.05m AUD | Oct 2022 |
| Paid by Black Mountain Energy to comply with three ASIC infringement notices (each notice states $13,320) Black Mountain Energy Australian Securities and Investments Commission (ASIC) | Penalty | 0.04m AUD | Jan 2023 |
What was measured
No independent measurement of the emissions or climate effect behind the statements is on record. The notices state ASIC's grounds that the companies lacked a reasonable basis for the statements or that they were factually incorrect.
Findings on record
- Court or regulator ruling Australian Securities and Investments Commission (ASIC) (2022-10-18) · Four infringement notices to Tlou Energy under section 12GX of the ASIC Act (S02563037 to S02563040), each stating $13,320: “either did not have a reasonable basis to make the representations, or that the representations were factually incorrect” Australian Securities and Investments Commission (ASIC)
- Court or regulator ruling Australian Securities and Investments Commission (ASIC) (2022-12-20) · Three infringement notices to Black Mountain Energy under section 12GX of the ASIC Act (B00725794 to B00725796), each stating $13,320: “either did not have a reasonable basis to make the representations, or that the representations were factually incorrect” Australian Securities and Investments Commission (ASIC)
Who gained
Reached nature or the ground
Gained elsewhere
Responses on record
- tlou-energy (2022-10-25): Paid the four infringement notices on 25 October 2022. ASIC stated that payment of an infringement notice is not an admission of guilt or liability. · Australian Securities and Investments Commission (ASIC)
- black-mountain-energy (2023-01-03): Paid the three infringement notices (3 January 2023 according to ASIC's media release). ASIC stated that payment of an infringement notice is not an admission of guilt or liability. · Australian Securities and Investments Commission (ASIC)
In court and with insurers
Lawsuits and rulings
- 2022-10-18–2022-10-25SettledAUD 53.28bn Total paid to comply with four infringement notices ($13,320 each)ASIC infringement notices to Tlou Energy over sustainability-related statementsAustralian Securities and Investments Commission (infringement notices under section 12GX of the ASIC Act) · Regulatory · ASIC → Tlou Energy
Four notices alleging contravention of section 12DB(1)(a) of the ASIC Act. Tlou paid on 25 October 2022; payment is not an admission of guilt or liability. Australian Securities and Investments Commission (ASIC)
- 2022-12-20–2023-01-03SettledAUD 39.96bn Total paid to comply with three infringement notices ($13,320 each)ASIC infringement notices to Black Mountain Energy over sustainability-related statementsAustralian Securities and Investments Commission (infringement notices under section 12GX of the ASIC Act) · Regulatory · ASIC → Black Mountain Energy
Three notices alleging contravention of section 12DB(1)(a) of the ASIC Act. BME paid in January 2023 (3 January in the media release, 5 January in the register); payment is not an admission of guilt or liability. Australian Securities and Investments Commission (ASIC)
Insurers
What we don't know
Nature
- Not measured Harm to nature: The record holds no measurement of harm to nature.
Accounts
- Disputed Date on which Black Mountain Energy paid the infringement notices
Record
- None on record None on record: an independent measurement of the emissions or climate effect of the electricity, gas-to-power project and gas project behind the statements.
- Disputed Conflicting dates: ASIC's media release 23-001MR and its report REP 763 give 3 January 2023 as the date Black Mountain Energy paid the notices; ASIC's infringement notices register lists 5 January 2023.
Did the harm stop?
Not stated in the sources reviewed.
Who paid?
Tlou Energy paid a total of $53,280 for four notices and Black Mountain Energy a total of $39,960 for three notices, according to ASIC.
Sources
Government and regulators
- 22-294MR ASIC acts against greenwashing by energy companyAustralian Securities and Investments Commission (ASIC) · 2022-10-27
- 23-001MR ASIC issues infringement notices to energy company for greenwashingAustralian Securities and Investments Commission (ASIC) · 2023-01-05
- REP 763 ASIC's recent greenwashing interventionsAustralian Securities and Investments Commission (ASIC) · 2023-05
- Infringement notice S02563037 to Tlou Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-10-18
- Infringement notice S02563038 to Tlou Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-10-18
- Infringement notice S02563039 to Tlou Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-10-18
- Infringement notice S02563040 to Tlou Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-10-18
- Infringement notice B00725794 to Black Mountain Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-12-20
- Infringement notice B00725795 to Black Mountain Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-12-20
- Infringement notice B00725796 to Black Mountain Energy Limited (section 12GX, ASIC Act)Australian Securities and Investments Commission (ASIC) · 2022-12-20
Standard-setters and registries
- Infringement notices registerAustralian Securities and Investments Commission (ASIC) ·
Connected cases
- Australia penalises Mercer Super and Vanguard over sustainable and ethical fund claims Australia · 2024
- Australian Securities and Investments Commission (Government) — here: Regulator that issued the infringement notices; there: regulator
- Mercer fined A$11.3m over 'sustainable' fund; Vanguard and Active Super also penalised Australia · 2024–2025
- Australian Securities and Investments Commission (Government) — here: Regulator that issued the infringement notices; there: Regulator that brought the Mercer case
- Sustainable-labelled funds: assets, renaming under the EU fund-name rules, fees and impact studies Global · 2018–2026
- Australian Securities and Investments Commission (Government) — here: Regulator that issued the infringement notices; there: Won the A$7.3 million penalty against Fiducian