Article Written by Tim Mohin
To say the SEC’s Climate Rule has gone through the wringer would be an understatement. The policy has faced fierce opposition from the start. This week, however, there has been an upswell of support in the form of “amicus briefs” (friend of the court filings) pouring into the US Eighth Circuit of Appeals, most notably from investors.
While there were 15 consolidated briefs against the rule from business groups, Republican State Attorneys, and energy companies, there were 16 briefs in support from large state pension funds (California and New York), institutional investors, democratic state Attorneys General, environmental activists, and even some business groups.
The SEC Rule, finalized in March and currently under a self-imposed stay until court proceedings finish, was created to give investors decision-useful information on climate-related risks. The support from more than 15 institutional investors, representing over $2 trillion, should carry a lot of weight given the SEC’s claim that the rule was created due to investor demand. The institutional investor’s brief filed with the environmental non-profit CERES claims that the SEC was measured in their approach, saying, “This is exactly what Congress established the SEC to do: ensure that investors have the information they need to make informed investment and voting decisions.”
Of the other supporting amicus briefs received from environmental non-profits and business groups, perhaps the most important was from California State Attorney Rob Bonta, who said, “Climate-related disclosures will help investors make informed decisions to protect their investments in the face of this reality.” California also has a legal battle challenging its climate law, which may be impacted by the decision in the SEC case. California was among 46 states that pledged support or opposed the rule (mostly along party lines).
Source: Bloomberg Law
Thursday, August 15th, was the deadline for amicus briefs. Plaintiffs now have until September 17th to respond to the SEC’s written brief and supporting amicus briefs before verbal proceedings start later in the year.
The legal deliberations in the US have not stopped the international community from enacting their sustainability reporting regulations, many of which will impact US companies and require much more extensive reporting than the SEC Rule.
This puts the US at risk of becoming a rule-taker rather than a maker. Former Treasury climate adviser John Morton says the opponents have missed the point: “Companies that consider themselves satisfied if the SEC rule fails may have won the battle but they’ve lost the war, because they’re going to be disclosing in Hong Kong, Tokyo, the EU, Britain and California soon. What exactly have they accomplished? Now they’ll just have to disclose 15 different ways in other jurisdictions.”
