It’s been a day or two now—what’s going on with the SEC’s climate disclosure rules litigation? When we left our tale, petitioners Liberty and Nomad had submitted this notice of pending emergency motion advising the Eighth Circuit of their request for a new administrative stay and a stay pending judicial review in connection with their petition challenging the rules. And the SEC was directed to file a response by the close of business yesterday. (See this PubCo post.) As directed by the Court, the SEC did submit a letter of response. Now, another petitioner, the U.S. Chamber of Commerce, has also moved for a stay pending appeal. And a new petition for review has been filed.
As you may remember, a petition for review of the final rules was filed by Liberty and Nomad on March 6 in the Fifth Circuit and their motion for an administrative stay was granted on March 15. That case was just one of nine challenging the SEC’s rules in six different circuits. Upon request of the SEC, on March 21, 2024, the Judicial Panel on Multidistrict Litigation issued a consolidation order in these cases, randomly selecting the Eighth Circuit as the court in which to consolidate these petitions. Following that consolidation order, the Fifth Circuit ordered the transfer of Liberty’s petition to the Eighth Circuit and the dissolution of the administrative stay. (See this PubCo post.) Liberty and Nomad then renewed their motion for a stay in the Eighth Circuit.
The new motion from the Chamber contends that the SEC wants “to dictate national climate policy in the guise of securities regulation.” According to the Chamber, the “SEC’s climate rule is the latest and most egregious example of the Executive’s no-holds-barred, ‘we don’t need Congress’…approach to this issue. Purporting to protect investors, the SEC has invoked 90-year-old securities statutes to mandate sweeping and unprecedented disclosures on a single topic: climate change. That mandate looks nothing like the traditional disclosures long required of public companies. Far from filling a genuine informational gap, the rule would inundate investors with data they do not need. And it would cost public companies more than $2.3 billion each year—by the SEC’s own understated estimate. This climate rule is the quintessential rule ‘in search of [a] regulatory proble[m].’” The Chamber argues that the rule would cause irreparable harm if allowed to go into effect. The motion then presents the familiar arguments: arbitrary and capricious (companies are already required to disclose material information; the rule requires disclosure of information that is not material); exceeds the SEC’s authority (SEC interprets the purportedly authorizing securities laws too broadly and has no authority under the major questions doctrine); and violates the First Amendment (forces companies “to engage in costly speech against their will on matters of contentious political debate”). The motion requests that, if the Court does not grant a stay, it should expedite the appeal.
The response letter from the SEC contended that Liberty “identified no imminent harm justifying such emergency relief or a stay pending judicial review,” and that both Liberty and the Chamber failed to follow “established procedures for considering stay motions.” Given the two motions, the SEC requests that the Court deny the request for a stay or at least “order re-briefing on these petitioners’ motion so that the two motions may be considered together.” Liberty then filed a response letter contending that the SEC’s claim that Petitioners faced no imminent harm because no formal disclosures were required until early 2026 was a “red herring.”
But that’s not all. It turns out that, just when the consolidation order was issued, two more petitioners, the National Legal and Policy Center and the Oil and Gas Workers Association, submitted a new petition for review of the climate disclosure rules—in the Fifth Circuit.
