William & Mary Environmental Law and Policy Review
Abstract
This Article examines a recent lawsuit between ExxonMobil Corporation and its shareholders that contested the definition of “ordinary business operations” under Rule 14a-8 of the Securities & Exchange Act of 1934. Through the lens of Niklas Luhmann’s systems theory particularly his concept of “operational closure,” the analysis reveals how corporate resistance to ESG initiatives reflects deeper systemic patterns in late capitalist governance.
ESG frameworks emerged as a challenge to neoliberal corporate governance, promising to address mounting environmental and social concerns. However, the neoliberal model has responded by both absorbing ESG through “greenwashing” and rejecting its more transformative elements—a pattern that exemplifies the maladaptive tendencies of systemic operational closure. Beyond simply challenging corporate environmental and social policies, ESG has precipitated an epistemic crisis within corporate governance itself. This crisis has intensified neoliberal ideology’s resurgence, particularly its commitment to shareholder primacy, manifesting in governance strategies that reduce ESG to mere financial metrics. The resulting tension exposes fundamental questions about the core assumptions of traditional corporate governance models.