Just as we expected, there are already pending lawsuits against the SEC Climate-related Disclosures Rule. With at least five lawsuits in total, three come from collections of ten states, nine states, and three states, and the others from the Texas Alliance of Energy Producers and Liberty Energy and Nomad Proppant Services. If you’re anything like myself (a hopeless litigation nerd), you were excited to dig into these lawsuits and see where the battle lines were drawn. You were likely similarly disappointed by the lack of substantive detail contained in both filings.
Normally, when a lawsuit is filed, it gives us quite a lot to speculate on. This is because a traditional Complaint must meet detailed pleading standards describing core facts of the case and legal arguments alleged by the Plaintiff. However, the lawsuits against the rules were filed as Petitions for Review. The pleading standard for a Petition for Review is substantially lower than that of a Complaint and is controlled by Rule 15 of the Federal Rules of Appellate Procedure which states:
“(2) The petition must:
(A) name each party seeking review either in the caption or the body of the petition—using such terms as ‘et al.,’ ‘petitioners,’ or ‘respondents’ does not effectively name the parties;
(B) name the agency as a respondent (even though not named in the petition, the United States is a respondent if required by statute); and
(C) specify the order or part thereof to be reviewed.”
Meeting this standard is straightforward and requires little detail. Therefore, the Petitions really only tell us the names of the parties and that the petitioners would like the rule reviewed in its entirety. It leaves legal arguments and grounds for the Court’s decision up for speculation. However, it is worth noting that the suits were brought directly to the Circuit Court level pursuant to 15 U.S. Code § 78y, with the lawsuits being filed across the 11th Circuit, 8th Circuit, and 5th Circuit. The fact that the trial court level can be circumvented means that the litigation timeline and ultimate showdown at the Supreme Court should happen on an accelerated timeline. Although in reality, that may not be particularly fast.
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