On March 21, the Securities and Exchange Commission (SEC), by a 3-1 majority (the lone Republican Hester Pierce voting against the proposal), drafted rules that will further burden all American energy production and thus hamper economic growth. The proposal would require listed companies to disclose to investors how their future value might be impacted by climate impacts or reduced demand for fossil fuels. Specifically, they must disclose:
- The "carbon footprint" of its operations.
- How much energy the company uses.
- If the company is a large one, the emissions from its supply chain and customers.
Of course, for fossil fuel companies customers account for the majority of the emissions it must disclose. The whole point of a SEC-mandated disclosure is to give investors relevant information about the company in order to make wiser investment choices. Not specified in this category is how much of these emissions are “material” to its investors, which you can be certain will be a topic of substantial litigation.
The draft rules provide a backdoor for climate activists “to use a ‘layer of bureaucracy to enact their radical agenda that failed to get approved by Congress.” The rules would increase job opportunities and benefits for anti-corporate, anti-energy non-governmental agencies, a plethora of “climate certification consultants," accountants, auditing firms, and lawyers. The remoras attached to the bureaucracy—parasites who constitute no small part of the present administration’s remaining backers—are the winners if this goes into affect.
The proposal is not self-enforcing. There’s, of course, an opportunity for comment and the proposed rule will not be finalized until sometime this summer. Likely objections include that it exceeds the SEC’s legal mission; and that it requires companies to disclose information that's immaterial to investors and therefore violates the Supreme Court’s rulings that the SEC cannot require disclosures that are not material to investors.
Certainly, the objections will also include a claim of impossibility—that is, without an agreed method for calculating the emissions from its supply chain and customers, compliance would be costly and subject the companies to litigation from claimants arguing the disclosure was inaccurate. The requirement that businesses must disclose even those "greenhouse gas" emissions that are produced indirectly by their operations illustrates how burdensome and preposterous this is—how to document company transportation, the vehicles used to transport what they produce and even employee business travel?
In the face of galloping inflation and rapidly rising energy costs, this proposal should be a non-starter in a rational world. It’s flatly ridiculous. Add to the mix of considerations, the fact that the suicidal energy policies of the Europeans and the Biden administration have impoverished their citizens, created supply shortages of everything including medicines and food, and increased the political power of Russia, and you are hard-pressed to justify this intrusive, costly bureaucratic overreach.
Unless of course, you are an environmental activist whose litigation teams are hell bent on slaying the sky dragon presently known as “climate change," or a partner in an auditing firm that that will be in high demand to fact-check these disclosures lest companies run afoul of fraud laws. When companies prepare disclosures to comply with SEC regulations, third parties must be engaged to check it, and the Big Four accounting firms may not be in the best position to audit these climate audits, so voila! A new industry—climate consultants—will be in the money.
Oh, and don’t forget, financial institutions at the trough. Already, Stripe, which is the foundation for most online payment processing, has established a climate research team. It already allows businesses to redirect some revenues to carbon removal technologies. Will it and/or other financial institutions, use the disclosures to deny financial assistance to businesses? Guess.
Once the comment period closes and the SEC issues final regulations, there will be an opportunity for parties with an interest to litigate these rules. I am certain there will be many challenges.