That’s what SEC Chair Gary Gensler said about the timeline for the final climate disclosure rules when asked on Monday (probably at the National Press Club), as reported by Reuters. (See this PubCo postthis PubCo post and this PubCo post.)  According to the SEC’s most recent rulemaking agenda, the final climate disclosure rules have a target date for adoption of October 2023. (See this PubCo post.) Gensler, however, Reuters reported, “said this was not hard and fast. ‘We’ve got some work still to do,’ Gensler said. ‘I don’t have a time. It’s really when the staff is ready and when the Commission is ready.’” October? IMHO, nah….

Why the delay? Just speculating, of course, but the proposal has received a fair amount of pushback, with one House member contending that the climate proposal was a reflection of the “weaponization” of the SEC (see this PubCo post and this PubCo post). It was also the object of substantial condemnation in the interim report of the ESG Working Group of the House Financial Services Committee. And members of the Financial Services and General Government Subcommittee of the Senate Appropriations Committee, questioning Gensler at a hearing yesterday, were also critical of the proposed rulemaking. Opponents of the proposal have long been plotting their litigation strategies, and there is really no question that the rules will be challenged in court. Among other things, some contend that the proposal is beyond the SEC’s authority, especially in light of West Virginia v. EPA, in which SCOTUS gave its imprimatur to the major questions doctrine, invoked by SCOTUS again this term in Biden v. Nebraska (the student loan case). Although not directly addressing the SEC’s climate disclosure proposal, these cases will certainly be a key part of the arsenal used in attempts to block its implementation. (See this PubCo post.) In light of the extraordinary legal and political challenges expected from Congress and the business community over the controversial climate proposal, the SEC is likely attempting to do what it can to litigation-proof the final rules.

Posted by Cydney Posner