Thanks to Advisory Board member Rhonda Brauer for forwarding me this news yesterday. Senators Tom Cotton, Chuck Grassley, Marco Rubio, Michael Lee and Marsha Blackburn co-signed a letter to 51 US law firms, accusing them of a “collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad” by providing clients ESG legal advice.
The letter then turns to a threat:
Over the coming months and years, Congress will increasingly use its oversight powers to scrutinize the institutionalized antitrust violations being committed in the name of ESG, and refer those violations to the FTC and the Department of Justice. To the extent that your firm continues to advise clients regarding participation in ESG initiatives, both you and those clients should take care to preserve relevant documents in anticipation of those investigations.
I spent a fair amount of time yesterday trying to wrap my head around this and frankly, I just can’t. Nor am I able to come up with anything pithy or witty about this. Perhaps one observation is that it seems to be an early shot across the bow following this summer’s U.S. Supreme Court decision in West Virginia v. EPA and possibly a rogue attempt to misuse the Major Questions Doctrine. On the other hand, it is also possible there wasn’t that much thought put into the justification or basis of the letter.
This will be a very interesting issue to watch and depending on today’s election results, it could turn nasty very fast. As usual, we will be monitoring this and keep you in-the-know.