On May 20, 2024, the U.S. Court of Appeals for the Eighth Circuit issued an order establishing the briefing schedule for the consolidated litigation challenging the Securities and Exchange Commission’s (“SEC") final climate disclosure rules.
The order set the following deadlines for the upcoming summer and early fall:
- June 14, 2024: Petitioners’ opening brief
- June 24, 2024: Briefs by supporting intervenors or amici
- August 5, 2024: Respondent’s consolidated response brief
- August 15, 2024: Briefs by supporting intervenors or amici
- September 3, 2024: Petitioners’ reply brief
Oral arguments could occur before the end of 2024.
The climate disclosure rules, described in more detail in our client alert, are not currently in force. As we previously reported, in response to lawsuits by the U.S. Chamber of Commerce and others, the SEC voluntarily stayed implementation of the final rules in April 2024 pending the completion of judicial review of the consolidated Eighth Circuit cases. In addition, the SEC stated in a subsequent court filing that its voluntary stay eliminates the harms challengers had asserted that compliance with the rule would impose, including in the form of costs incurred to prepare for compliance with the rule, and that “[t]he Commission will publish a document in the Federal Register at the conclusion of the stay addressing a new effective date for the [final climate disclosure rules]." While the SEC has not specified the duration of the further implementation period if the rules survive the litigation, it thus has confirmed that a new implementation period will be provided.
In the interim, companies may prefer to monitor the litigation and delay significant compliance investments until the litigation is resolved. A complete delay in preparing for climate-reporting may not be feasible, however, for companies who are additionally preparing to address climate and other sustainability-related disclosure obligations under other reporting regimes, such as the European Union’s Corporate Sustainability Reporting Directive.
* * *
Thank you to associates Lauren Assaf-Holmes and Antony Nguyen from our Orange County office for their assistance with this update.