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Keeping you in-the-know on environmental, social and governance developments

SEC’s climate disclosure rule has not been finalized – nor is it even known when that will happen (although rumors abound that the Commission will vote on the rule sometime in the next couple months) – yet there is already talk about litigating the rule upon its issuance. ESG Clarity reported:

“Lawsuits to block the US Securities and Exchange Commission (SEC) final rule for climate risk disclosures will quickly follow its release, according to analysts at Jefferies…’We fully expect that, after the climate disclosure rule is finalized, the SEC will be sued by various parties including trade groups, red state attorney generals, and industry’, Jefferies analysts said. If the SEC loses in court after publishing its final rules, the agency has to wait five years to re-engage on the same rulemaking.” 

Not that this should surprise anyone. It isn’t really a question of if the SEC would be sued, but whether the suit would challenge the entire rule or only parts of it. Or to be more accurate, whether the suit will be wholly or partially successful.

Those familiar with the SEC’s conflict minerals rule will remember that although the entire rule was challenged, the only successful aspect (which surprised almost all observers and legal experts) was the claim that requiring companies to declare their products were “DRC conflict free” or “not DRC conflict free” violated the First Amendment. As a result, only that part of the rule was vacated and remanded back to the Commission for further rulemaking – which to this day has not happened. Perhaps we might see something similar with the climate rule.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile