{"id":338172,"date":"2024-08-01T09:20:15","date_gmt":"2024-08-01T07:20:15","guid":{"rendered":"https:\/\/climatescience.press\/?p=338172"},"modified":"2024-08-01T09:20:16","modified_gmt":"2024-08-01T07:20:16","slug":"legal-challenges-to-the-secs-climate-related-disclosures-rule","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=338172","title":{"rendered":"Legal Challenges to the SEC\u2019s Climate-Related Disclosures Rule"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

<\/p>\n\n\n\n

From Watts Up With That?<\/a><\/p>\n\n\n\n

By Rupert Darwall<\/a><\/p>\n\n\n\n

\u201cAnd When Did You Last See Your Father?\u201d<\/a> \u2013 William Frederick Yeames, 1878<\/p>\n\n\n\n

The scene: Room 2128 Rayburn House Office Building at a hearing<\/a> of the House Financial Services Committee on the SEC\u2019s climate-related disclosures rule, April 10, 2024.<\/p>\n\n\n\n

Representative Juan Vargas (D-CA): \u201cHow many of you believe in climate change?\u201d Raises his right arm. \u201cIf you could please raise your hand.\u201d<\/p>\n\n\n\n

Chris Wright, founder, chairman and CEO of Liberty Energy, gesticulating: \u201cIt\u2019s a bad question.\u201d<\/p>\n\n\n\n

\u2014-<\/p>\n\n\n\n

The Securities and Exchange Commission\u2019s (SEC) 886-page climate disclosures document is its most controversial in its 90-year history. It has huge implications for every listed business, especially in the energy sector. The rule empowers climate activists by forcing companies to compile and disclose emissions data that their allies on Wall Street can then use to impose and monitor net zero targets on corporate America. Adopted on March 6, the rule was immediately challenged in the courts. Less than a month later, the SEC chose to stay<\/a> the rule to pre-empt petitioners\u2019 requests for an emergency stay pending judicial review.<\/p>\n\n\n\n

When first proposed, the rule attracted an unprecedented volume of comments. It was adopted over the dissent of the SEC\u2019s two Republican commissioners. In his withering dissent<\/a>, Commissioner Mark Uyeda recalled the advice that he gives investors: \u201cDo not rely on the marketing materials and read the prospectus instead.\u201d The implication is devastating. In justifying the rule, the SEC falls beneath the standards of truthfulness it rightly expects of those whom it regulates.<\/p>\n\n\n\n

In a speech<\/a> shortly after adoption of the new rule, SEC chair Gary Gensler observed, \u201cMateriality represents a fundamental building block of the disclosure requirements under the federal laws,\u201d and went on to claim that the new role was \u201cgrounded in materiality.\u201d This is bunk. As Commissioner Hester Peirce put it in her dissent<\/a>, \u201cWhile the Commission has decorated the final rule with materiality ribbons, the rule embraces materiality in name only.\u201d In no context other than climate, writes Commissioner Uyeda, does the SEC require companies to provide an explanation for any expenses down to one percent of income before taxes, which it does for those incurred as a result of extreme weather.<\/p>\n\n\n\n

Moreover, the SEC already requires disclosure of material climate information and had issued detailed guidance<\/a> to that effect in 2010. As a brief<\/a> on behalf of the U.S. Chambers of Commerce and the National Center for Public Policy Research (NCPPR) to the Eighth Circuit, which is hearing the case, points out, \u201cthe rule is necessarily duplicative and of no value.\u201d The rule, the brief contends, contravenes the Administrative Procedure Act because \u201cit purports to solve a \u2018securities\u2019 problem that the SEC failed to show exists.\u201d In contravention of its own statutes, the SEC failed to conduct a rigorous cost-benefit analysis of its proposal, which, on its own massaged estimates, would cost more than double[RD1]<\/a>  the compliance costs of all major existing SEC disclosures combined. The rule departs so far from what the SEC had initially proposed that the SEC erred in not re-proposing the rule and opening it up for comments, Commissioner Uyeda contends.<\/p>\n\n\n\n

The standard of materiality adopted by the courts concerns whether there is a substantial likelihood that a reasonable investor would consider the information important in deciding how to vote or make an investment decision. What unites the universe of reasonable investors is the prospect of financial return. This means that there is an empirical test for materiality: Is the disclosure likely to move the price of the security? A statistical study<\/a> submitted to the SEC by Professor Daniel Taylor at The Wharton School analyzed the market impact of corporate disclosures of greenhouse gas (GHG) emissions data. The study found \u201cno evidence of a statistically significant change in stock price or trading volume in response to GHG disclosures\u201d (emphasis in the original). But, as the U.S. Chambers\/NCPPR brief notes, \u201cthe Commission inexplicably \u2013 and arbitrarily \u2013 failed even to consider<\/em> Dr. Taylor\u2019s findings\u201d (emphasis in the original).<\/p>\n\n\n\n

A second class of disclosure relates to the integrity of the principal-agent relationship, that is, the reliance of dispersed stockholders on the good faith of corporate executives to act solely in the company\u2019s interests. The purpose of such disclosures, for example on executive compensation, is to facilitate transparency and assure investors that executives aren\u2019t engaged in corporate looting. The integrity of the shareholder-management relationship is factor which can have an outsize impact on corporate valuations and thus is of great interest to the reasonable investor. As David McLean notes in \u201cThe Case for Shareholders Capitalism<\/a>,\u201d the reason why a barrel of oil in 2000 was worth $12 of market capitalization at ExxonMobil and BP but only 20\u00a2 for Russian oil companies is explained by radically differing standards of corporate governance. \u201cU.S. stock exchange and U.S. laws and regulatory agencies make it difficult and costly to expropriate from shareholders,\u201d McLean writes.<\/p>\n\n\n\n

In effect, the SEC subordinates materiality to investor demand. \u201cInvestors ranging from individual investors to large asset managers have indicated that they are making decisions in reliance on that information,\u201d Chair Gensler says. But it is not the role of the SEC to mandate disclosure of corporate data in pursuance of every investment fad or fashion, however well grounded, thereby imposing costs on all investors. One of the SEC\u2019s most cited \u201creasonable investors\u201d in the rule\u2019s text is As You Sow, a non-profit shareholder advocacy group. As You Sow\u2019s mission<\/a> is \u201cto promote environmental and social corporate responsibility through shareholder advocacy, coalition building, and innovative legal strategies.\u201d Its website has a prominent donate button, and two of its funders<\/a> are the Soros-backed Foundation to Promote Open Society and the Open Society Foundations.<\/p>\n\n\n\n

The SEC\u2019s implicit categorization of climate-activist As You Sow as a \u201creasonable investor\u201d demonstrates the truth of Commissioner Uyeda\u2019s assertion that the SEC rule is \u201cclimate regulation promulgated under the Commission\u2019s seal.\u201d As the U.S. Chambers\/NCPPR brief states, the SEC\u2019s alleged justification for the rule is \u201cpretextual,\u201d that is, not the real reason, which, as I pointed out in my June 2022 comment letter<\/a>, was the grounds on which the Supreme Court struck down the proposed citizenship question in the 2020 census.<\/p>\n\n\n\n

Until the climate-related disclosures rule was proposed, the SEC had viewed the purpose of disclosure as providing investors with information pertaining to a firm\u2019s financial condition. The rule sees a vast, unilateral expansion of the SEC\u2019s remit to information \u201cnecessary or appropriate in the public interest.\u201d To Commissioner Uyeda, this raises the red flag of the major questions doctrine. \u201cExtraordinary grants of regulatory authority are rarely accomplished through \u2018modest words,\u2019 \u2018vague terms,\u2019 or \u2018subtle device[s],\u201d the Supreme Court stated in West Virginia v. EPA<\/a>. It is by conflating the purpose of disclosures to reveal a firm\u2019s financial condition with disclosures deemed by the SEC as necessary in the public interest that the nonprofit activist As You Sow \u2013 \u201cOur vision is a safe, just and sustainable world\u201d \u2013 becomes, in the eyes of the SEC, a \u201creasonable investor.\u201d<\/p>\n\n\n\n

The SEC performs a similar sleight of hand with the touchstone of materiality. When proposed, the rule would have required listed companies to nominate a director responsible for managing and reporting climate-related risk. That requirement was subsequently dropped. Instead, the SEC pressures boards to consider climate-related issues and then deems all such board-level discussion to be material and therefore disclosable. In effect, the SEC places a bug in the boardroom of every listed company that is activated whenever the words \u201cclimate\u201d or \u201csevere weather\u201d are spoken. (Commissioner Uyeda notes that the SEC includes tornadoes as an example of a \u201csevere weather event,\u201d even though National Geographic says<\/a> global warming could well suppress them \u2013 \u201cthe science just isn\u2019t clear yet.\u201d)<\/p>\n\n\n\n

At the apex of the legal challenge to the rule is the First Amendment. The U.S. Chambers\/NCPPR legal brief argues that the rule is contrary to the First Amendment prohibiting \u201cthe government from telling people what they must say,\u201d as the Supreme Court had stated in 2006. \u201cYet that is exactly what the rule does, by design \u2013 forcing companies to engage in costly speech against their will on matters of contentious societal debate.\u201d That freedom, the Supreme Court had previously ruled, \u201cincludes both the right to speak freely and the right to refrain from speaking at all.\u201d<\/p>\n\n\n\n

Few issues are as contentious as climate change and what, if anything, to do about it. Before Representative Vargas attempted to compel Chris Wright to indicate whether he believed in climate change, Wright testified about why Liberty Energy strenuously opposed the new rule, was challenging it in the courts, and had sought a stay. The SEC was venturing well outside its lane without any congressional mandate, Wright said.<\/p>\n\n\n\n

Extrapolating the temperature trends derived from satellite measurement implies a two-degree Fahrenheit temperature rise by the end of the century. By contrast, Liberty Energy operates in minus 30\u00b0F in South Dakota and over 110\u00b0F in south Texas \u2013 a range of more than 140\u00b0F. There is no obvious growing threat to our business from extreme weather, Wright testified. The real climate risk to Liberty comes from climate regulations that are costly to comply with and invite litigation. With global demand for natural gas and oil at record highs and growing, the impact of the SEC rule will be to make it costlier and riskier to produce oil and gas in the United States. That cannot be in America\u2019s economic or national security interests. Much is at stake as the Eighth Circuit hears the arguments against the SEC\u2019s climate-related disclosure rule.<\/p>\n\n\n\n

Rupert Darwall is a senior fellow of the RealClearFoundation and author of  The Folly of Climate Leadership: Net Zero and Britain\u2019s Disastrous Energy Policies<\/a>.<\/em><\/p>\n\n\n\n

This article was originally published by RealClearEnergy and made available via RealClearWire.<\/strong><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cAnd When Did You Last See Your Father?\u201d \u2013 William Frederick Yeames, 1878<\/p>\n

The scene: Room 2128 Rayburn House Office Building at a hearing of the House Financial Services Committee on the SEC\u2019s climate-related disclosures rule, April 10, 2024.<\/p>\n","protected":false},"author":121246920,"featured_media":338174,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_coblocks_attr":"","_coblocks_dimensions":"","_coblocks_responsive_height":"","_coblocks_accordion_ie_support":"","_crdt_document":"","advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[691818056,691829604,691818128,691829927,691829928],"class_list":{"0":"post-338172","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","6":"hentry","7":"category-uncategorized","8":"tag-climate-change","9":"tag-climate-lawsuits","10":"tag-energy","11":"tag-secs-climate-related-disclosures-rule","12":"tag-the-securities-and-exchange-commissions-sec","14":"fallback-thumbnail"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2024\/08\/0sec_seal.jpg?fit=2048%2C2048&ssl=1","jetpack_likes_enabled":true,"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paxLW1-1pYo","jetpack-related-posts":[{"id":227970,"url":"https:\/\/climatescience.press\/?p=227970","url_meta":{"origin":338172,"position":0},"title":"\u201cIndependent Commission\u201d SEC Coordinated with White House on \u2018Climate Risk Disclosure\u2019 Rule","author":"uwe.roland.gross","date":"07\/11\/2022","format":false,"excerpt":"So, last week EPA filed yet another suit for SEC\u2019s correspondence consulting with the White House on the FOIAs. Clearly another one to watch.","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2022\/11\/0DlDLSrcUUAAJPgd.jpg?fit=1140%2C798&ssl=1&resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2022\/11\/0DlDLSrcUUAAJPgd.jpg?fit=1140%2C798&ssl=1&resize=350%2C200 1x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2022\/11\/0DlDLSrcUUAAJPgd.jpg?fit=1140%2C798&ssl=1&resize=525%2C300 1.5x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2022\/11\/0DlDLSrcUUAAJPgd.jpg?fit=1140%2C798&ssl=1&resize=700%2C400 2x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2022\/11\/0DlDLSrcUUAAJPgd.jpg?fit=1140%2C798&ssl=1&resize=1050%2C600 3x"},"classes":[]},{"id":240070,"url":"https:\/\/climatescience.press\/?p=240070","url_meta":{"origin":338172,"position":1},"title":"\u201cESG Check in\u201d: More details on the Securities & Exchange Commission\u2019s Activist Role in the \u201cWhole of Government\u201d Push on ESG, \u201cClimate Risk Disclosure\u201d","author":"uwe.roland.gross","date":"16\/01\/2023","format":false,"excerpt":"The indispensable transparency-in-government group Energy Policy Advocates has provided GAO a review of record productions from FOIA litigation with the Securities & Exchange Commission, including specifically from calendars of Chairman Gary Gensler and then-Commissioner Allison Herren Lee.","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2023\/01\/image-745.png?fit=1200%2C755&ssl=1&resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2023\/01\/image-745.png?fit=1200%2C755&ssl=1&resize=350%2C200 1x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2023\/01\/image-745.png?fit=1200%2C755&ssl=1&resize=525%2C300 1.5x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2023\/01\/image-745.png?fit=1200%2C755&ssl=1&resize=700%2C400 2x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2023\/01\/image-745.png?fit=1200%2C755&ssl=1&resize=1050%2C600 3x"},"classes":[]},{"id":369007,"url":"https:\/\/climatescience.press\/?p=369007","url_meta":{"origin":338172,"position":2},"title":"SEC\u2019s Climate Risk Disclosure Rule Would Compel Companies to Make Scientifically False and Misleading Disclosures","author":"uwe.roland.gross","date":"07\/03\/2025","format":false,"excerpt":"In March last year, the Securities and Exchange Commission issued its climate risk disclosure rule, called \u201cThe Enhancement and Standardization of Climate-Related Disclosures for Investors.\u201d\u00a0","rel":"","context":"In \"carbon dioxide (CO\u2082)\"","block_context":{"text":"carbon dioxide (CO\u2082)","link":"https:\/\/climatescience.press\/?tag=carbon-dioxide-co%e2%82%82"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2025\/03\/0Securities-and-Exchange-Commission-SEC.webp?fit=1200%2C719&ssl=1&resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2025\/03\/0Securities-and-Exchange-Commission-SEC.webp?fit=1200%2C719&ssl=1&resize=350%2C200 1x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2025\/03\/0Securities-and-Exchange-Commission-SEC.webp?fit=1200%2C719&ssl=1&resize=525%2C300 1.5x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2025\/03\/0Securities-and-Exchange-Commission-SEC.webp?fit=1200%2C719&ssl=1&resize=700%2C400 2x, https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2025\/03\/0Securities-and-Exchange-Commission-SEC.webp?fit=1200%2C719&ssl=1&resize=1050%2C600 3x"},"classes":[]},{"id":219494,"url":"https:\/\/climatescience.press\/?p=219494","url_meta":{"origin":338172,"position":3},"title":"SEC Not Climate Change Enforcer","author":"uwe.roland.gross","date":"18\/09\/2022","format":false,"excerpt":"It should junk its proposed disclosure rule, which is clearly unconstitutional as per West Virginia v. 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