Statement Summary
On April 24, 2025, the Eighth Circuit Court instructed the SEC to update its status regarding the Climate-Related Disclosure Rules adopted in March 2024. The SEC’s response indicated it would not revisit these rules, stating it could not predict future actions if litigation petitions were denied, citing a need for a court ruling on its authority. The document criticized the SEC for not clearly stating its intention to allow the rules to take effect, suggesting internal dissent among Commissioners who oppose the rules. The analysis asserts that the Commission must adhere to the Administrative Procedure Act if it wishes to modify or rescind the rules, emphasizing the importance of a transparent, public process for rulemaking. Ultimately, the press release highlights concerns about the Commission’s avoidance of its legal responsibilities and its impact on judicial resources.
Original Statement
On April 24, 2025—three months ago—the U.S. Court of Appeals for the Eighth Circuit directed the Commission to provide a status update in the ongoing litigation concerning the Climate-Related Disclosure Rules, which the Commission adopted in March of 2024. The Court “directed” the Commission to advise whether it “intends to review or reconsider the [R]ules at issue in this case.” And, if the Commission has determined to take no action, the Court ordered the Commission to explain whether it “will adhere to the [R]ules if the petitions for review are denied and, if not, why it will not review or reconsider the [R]ules at this time.” The Court’s directive was straightforward; our answer is not.
The Commission’s Status Report, filed today, states plainly enough that it has no intention of revisiting the Rules at this time. That, however, is where our responsiveness ends. The Status Report goes on to argue that we cannot expound on what the Commission’s future plans might be in the event the rulemaking petitions are denied, because we would be “prejudging” those policy decisions. And, the Status Report explains, any future rulemaking should benefit from a court ruling on our statutory authority.
We also weigh in on a number of questions that the Court did not ask of us – for example, we opine that there are “no obstacle[s]” to reaching the merits of the case and that a “live controversy” remains. This purported response is wholly unresponsive.
The Court asked us in no uncertain terms “will [the Commission] adhere to the [R]ules if the petitions for review are denied[?]” We did not—but should have—answered that question. The unspoken truth under this Commission is that the answer is “no.”
Three of the four current Commissioners have been vocal critics of the Rules. They have also withdrawn the Commission from the defense of the Rules in litigation. The Commission simply does not want to say what we all know to be true by now—it has no intention of allowing the Climate-Related Disclosure Rules to go into effect.
Once we acknowledge this answer, the rest of the Commission’s arguments fall away. There are no prejudgment issues, because there is nothing to prejudge. And, we do not need the Court to rule on our statutory authority for the Commission to engage in rulemaking. If there is future rulemaking in this space—whether to rescind the Rules or otherwise – that rulemaking may present different legal issues. Whatever those issues may be, and whomever those aggrieved parties may be, they are not now before the Court. Federal courts are not in the business of giving advisory opinions to agencies.
What is crystal clear, however, is that this Commission is seeking to avoid its legal obligations under the guise of conserving “Commission time and resources.” No matter what, this comes at the expense of judicial resources. As I wrote previously in connection with the Commission’s decision to stop defending these Rules, the Administrative Procedure Act governs the process by which we make and repeal rules. It includes a prescriptive framework for promulgation and rescission. If this Commission wants to rescind, repeal or modify the Rules, which were promulgated by-the-book, then it must do the statutorily-required work. It cannot take the easy way out. It must engage in notice-and-comment rulemaking, with the benefit of economic analysis and a public, transparent process, even if inconvenient or if the Commission has other, more pressing priorities.
Indeed, other Commissioners have acknowledged that doing the work required to rescind the rule would be a difficult lift. So, instead, we once again ask the Court to do the work for us. By asking the Court to carry water that we should shoulder ourselves, we do a grave disservice to our already taxed judicial system. This is not good governance.
The Commission has effectively ignored the Court’s order and thrown the ball back at the Court. The Court should decline to play these games.
