Case No. 24-1522 and all consolidated cases: Nos. 24-1624, 24-1626, 241627, 24-1628, 24-1631, 24-1634, 24-1685, and 24-2173
In theUnited States Court of Appeals
for the Eighth Circuit____________________________
STATE OF IOWA, ET AL.
Petitioners,
v.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Respondent,
DISTRICT OF COLUMBIA, ET AL.
Intervenors.
_______________________On Petitions for Review of an Order of the
Securities and Exchange Commission__________________________
BRIEF OF UNITED STATES SENATE AND HOUSE OF
REPRESENTATIVES MEMBERS SENATORS SHELDONWHITEHOUSE AND BRIAN SCHATZ, AND REPRESENTATIVESSEAN CASTEN AND JUAN VARGAS AS AMICI CURIAE
IN SUPPORT OF RESPONDENT THE SECURITIES AND
EXCHANGE COMMISSION (SEC)___________________________MARK I. BRONSON
Counsel of Record
GERSON H. SMOGER, Ph.D.
NEWMAN BRONSON & WALLISSMOGER & ASSOCIATES
2300 Westport Plaza Drive
4228 Hallmark Dr.
St. Louis, MO 63146
Dallas, TX 75229(314) 878-8200(510) 531-4529
mbronson@newmanbronson.com
gerson@texasinjurylaw.com
Counsel for Amici Curiae

TABLE OF CONTENTSSTATEMENT OF INTEREST OF AMICI CURIAE ..................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................ 2
ARGUMENT ……………………………………………………………… 5
I.

The US Securties and Exchange Commission Has theAuthiority to Regulate in This Space ………………………... 5II.

Climate Change Poses Systemic Financial and Economic
Risks .......................................................................................... 9

III.

Petitioners’ Pattern of Climate Obstruction ............................ 20

CONCLUSION ............................................................................................ 25
CERTIFICATE OF COMPLIANCE............................................................ 27
CERTIFICATE OF SERVICE …………………………………………… 28i

TABLE OF AUTHORITIES
Cases
Basic, Inc. v. Levinson, 485 U.S. 224 (1988) ……………………………… 7
Chamber of Com. of the U.S. v SEC, No. 24-1628, (8th Cir. June 14, 2023)……………………………………………………………………………. 21
Iowa v. SEC, No. 24-1522 (8th Cir. Mar. 12, 2024).………………………. 3
Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031 (D.C. Cir.1979) ……... 4
Omnicare, Inc. v. Laborers Dist. Council Contr. Indus. Pension Fund,
575 U.S. 175 (2015)………………………………………………………... 4
Panther Partners Inc v. Ikanos Communs., Inc., 681 F.3d 114(2d Cir. 2012) ……………………………………………………………… 7
SEC v. Life Partners Holdings, Inc., 854 F.3d 765 (5th Cir. 2017) ………. .7
Statutes
Securities Act of 1033 and Securities Exhange Act of 1934, 15 USC§ 77a et seq ……………………………………………………………..….. 5
Securities Act of 1033 and Securities Exhange Act of 1934, 15 USC§ 77b et seq ……………………………………………………………….....5
Other Authorities
17 CFR 229.105(a) ………………………………………………………... .5
38 trillion dollars in damages each year: World economy already committed
to income reduction of 19% due to climate change, Potsdam Institute for
Climate Impact Research (April 17, 2024) ………………………..………10
2017 Most Dangerous Emerging Risks, Coastal Mortgage Value Collapse,
Risk & Insurance (Apr. 7, 2017), https://riskandinsurance.com/coastalmortgage-value-collapse/ ………………………………………………....11
A Burning Issue: The Economic Costs of Wildfires: Hearing Before the U.S.
Senate Budget Committee, 118th Cong. (Mar. 8, 2023) ……………...…. 12ii

A call for action: Climate change as a source of financial risk, Network forGreening the Financial System (Apr. 2019),
https://www.ngfs.net/sites/default/files/medias/documents/ngfs_first_compre
hensive_report_- _17042019_0.pdf. …………………………………...… 10
About Us, The National Center for Public Policy Research (archived Nov.
12, 2015) [https://archive.is/hSm6S]…………………………………....… 23
Addressing Climate as a Systemic Risk: A call to action for U.S. financial
regulators, Ceres, at vi (June 2020),
https://www.ceres.org/resources/reports/addressing-climate-systemic-risk………………………………………………………………………..….... 10
Adoption of Integrated Disclosure System, Release No. 33-6383, 47 Fed.
Reg. 11380 (Mar. 16, 1982) (“1982 Release”)………………………...….. 5
Amine Ouazad & Matthew E. Kahn, Mortgage Finance in the Face of
Rising Climate Risk, National Bureau of Economic Research (Sept. 30,2019),
https://www.nber.org/system/files/working_papers/w26322/revisions/w2632
2.rev0.pdf .................................................................................................... 11
Anti-ESG and the Fossil Fuel Sector, (May 2023), InfluenceMap
https://influencemap.org/report/Anti-ESG-and-the-Fossil-Fuel-Sector21873............................................................................................................ 24
Br. for Pet’rs. of American Free Enterprise Chamber of Commerce et. al(June 14, 2024) ………………………………………….………………. 3, 7
Celso Brunetti et al., Climate Change and Financial Stability, Board ofGovernors of the Federal Reserve System (Mar. 19, 2021),
https://www.federalreserve.gov/econres/notes/feds-notes/climate-changeand-financial-stability-20210319.html.…………..............................…..….. 8
Christopher McGlade & Paul Elkins, The geographical distribution of fossil
fuels unused when limiting global warming to 2 °C, 517 Nature 187-190(Jan. 8, 2015) …………………………………………………….…….…. 10iii

Cybersecurity Risk Management, Strategy, Governance, and Incident
Disclosure, 17 C.F.R. 229, 239, 240, 249. (2023) ………………….…..…. 6
David Gelles, How a Climate Rule Got Watered Down, The New YorkTimes (Mar. 5, 2024), https://www.nytimes.com/2024/03/05/climate/how-aclimate-rule-got-watered-down.html ………………………………..…. 8, 12David Gelles, How Republicans Are ‘Weaponizing’ Public Office Against
Climate Action, The New York Times (Aug. 5, 2022),
https://www.nytimes.com/2022/08/05/climate/republican-treasurers-climatechange.html................................................................................................. 23David Sheppard et al, Special Report: How Romney energy czar fuelsbusiness with politics, Reuters (Sept. 21, 2012),
https://www.reuters.com/article/us-hamm-romney-profileidUSBRE88J12L20120921/......................................................................... 22
Disclose What Matters: Bridging the Gap Between Investor Needs andCompany Disclosures on Sustainability, Ceres (Aug. 15, 2018),
https://www.ceres.org/resources/reports/disclose-what-matters-bridging-gapbetween-investor-needs-and-company-disclosures ....................................... 8
Executive Committee, Domestic Energy Producers Alliance,
https://depausa.org/executive-committee/ (last visited Aug. 7, 2024)……. 22
Expert Report of Joseph E. Stiglitz, Ph.D., Juliana v. US, Civ. 6:15-cv01517-AA (9th Cir. 2018) ………………………………………….…….. 11
Global: Scenario analysis for assessing climate-related risks, Global
Insights BlackRock (Apr. 2019),
https://www.blackrock.com/us/individual/insights/blackrock-investmentinstitute/physical-climate-risks .................................................................... 11
Global Turning Point Report, Deloitte (July 2022),
https://www.deloitte.com/an/en/issues/climate/global-turning-point.html………………………………………………...………………………. 10, 11
Global warming is coming for your home, The Economist (Apr. 11, 2024)
https://www.economist.com/leaders/2024/04/11/global-warming-is-comingfor-your-home. …………………………………………………..……… 6, 9iv

Guide 6, in Guides for the Preparation and Filing of Registration Statements,
Release No. 33-4936, 33 Fed. Reg. 18617 (Dec. 17, 1968) …………..…… 6
Gregor Semieniuk, et al., Stranded fossil-fuel assets translate to major
losses for investors in advanced economies,12 Nature Climate Change 532538 (2022)………………………………………………………………… 17
Guides for Preparation and Filing of Registration Statements, Release No.
33-4666, 29 Fed. Reg. 2490 (Feb. 15, 1964) ………………….………….. 5
Hugh Miller & Simon Dikau, Preventing a ‘climate Minsky moment’:environmental financial risks and prudential exposure limits, Grantham
Research Institute on Climate Change and the Environment, 9,19 (Mar.
2022), https://www.lse.ac.uk/granthaminstitute/wpcontent/uploads/2022/03/Preventing-a-climate-Minsky-moment.pdf….… 17
Industry Groups and their Carbon Footprints, InfluenceMap (Sep. 2019),
https://influencemap.org/report/Trade-Groups-and-their-Carbon-Footprintsf48157cf8df3526078541070f067f6e6.......................................................... 21
Investors Underappreciate Climate-Related Risks in their Portfolios,
BlackRock, (Apr. 4, 2019),
https://www.blackrock.com/corporate/newsroom/pressreleases/article/corporate-one/press-releases/investors-underappreciateclimate-related-risks-in-their-portfolios....................................................... 16
J. F. Mercure et al., Macroeconomic impact of stranded fossil fuel assets, 8
Nature Climate Change 588 - 593 (2018)https://www.nature.com/articles/s41558-018-0182-1...................... 10, 17, 19
John Bowman, U.S. Chamber of Commerce Opposes Climate Action that
Corporate America Claims to Back, Natural Resources Defense Council(Sep. 29, 2021),
https://www.nrdc.org/bio/john-bowman/us-chambercommerce-opposesclimate-action-corporate-america-claims-back ........................................... 21
Jonathan Woetzel et al., Climate risk and response, Physical hazards andsocioeconomic impacts, McKinsey Global Institute (Jan. 2020),
https://www.mckinsey.com/~/media/mckinsey/business%20functions/sustaiv

nability/our%20insights/climate%20risk%20and%20response%20physical%
20hazards%20and%20socioeconomic%20impacts/mgi-climate-risk-andresponse-full-report-vf.pdf ……………………………………………….. 11
Karl Evers-Hillstrom, Arizona chambers run ads targeting Sinema, Kelly
over reconciliation bill, The Hill (Aug. 2, 2023),
https://thehill.com/lobbying/3584204-us-arizona-chambers-run-adstargeting-sinema-kelly-overreconciliation-bill/........................................... 21
Kristoffer Tigue, The US Chamber of Commerce Has Helped Downplay the
Climate Threat, a New Report Concludes, Inside Climate News (June 29,2021), https://insideclimatenews.org/news/29062021/uschamber-ofcommerce-downplay-climate-threat-new-report-concludes/ ……….……. 22
Letter from Chairman Sheldon Whitehouse to Republican Budget
Committee Members, U.S. Senate Committee on the Budget, (Mar. 25,2024),
https://www.budget.senate.gov/imo/media/doc/letter_to_republican_budget_
committee_members_regarding_climate-related_risks_to_the_economy.pdf.
,……………………………………………………………………………... 9
Letter to Donald J. Trump from Competitive Enterprise Institute et al.,, (May8, 2017)(https://web.archive.org/web/20170512185946/https://cei.org/sites/default/fil
es/20170508%20CEI%20Paris%20Treaty%20with%20logos%20%2044%20Final.pdf). ………………………………………………...….. 23
Life’s a Beach, Freddie Mac (Apr. 26, 2016),
https://www.freddiemac.com/research/insight/20160426-lifes-a-beach …. 11
Linda-Eling Lee, US firms fall further behind global peers on climate
disclosure, MSCI Sustainability Institute (Feb. 14, 2024), https://www.msciinstitute.com/insights/us-firms-fall-further-behind-global-peers-on-climatedisclosure/ ………………………………………………………………….. 8Mark Carney, Breaking the tragedy of the horizon – climate change andfinancial stability, Address at Lloyd’s of London, (Sept. 29, 2015) …..… 10
Martinich, J. et al., Reducing Risks Through Emissions Mitigation, Impacts,
Risks and Adaptation in the United States: Fourth National ClimateviAssessment, Volume II, Global Change Research Program, Washington,
DC, USA, pp. 1346–1386.
https://nca2018.globalchange.gov/downloads/NCA4_Ch29_Mitigation_Full.
pdf …………………………………………………………………...……. 12
Modernization of Regulation S-K Items 101, 103, and 105, 17 C.F.R.§ 229,
239, 240 (2020)…………………………………………………………….. 6
New: State Financial Officers Foundation, With Deep Ties to Leonard Leo
and Koch Industries, Launches New Anti-ESG Political Arm, Unlocking
America’s Future (May 3, 2024), https://unlockingamericasfuture.org/newstate-financial-officers-foundation-with-deep-ties-to-leonard-leo-and-kochindustries-launches-new-anti-esg-political-arm/.......................................... 24
Paul Fisher, Confronting the challenges of tomorrow’ world, Address at the
Economist’s Insurance Summit 2015, London, (Mar. 3, 2015) ……..….... 10
Patrick Bolton et. al., The Green Swan: Central banking and financial
stability in the age of climate change, Bank for International Settlements,(Jan. 2020), https://www.bis.org/publ/othp31.pdf …………………… 10, 11
Press Release, As the seas have been rising, home values have been sinking,First Street Foundation (July 25, 2018) (https://firststreet.org/press/as-theseas-have-been-rising-home-values-have-been-sinking) ………………... 11
Press Release, As the seas have been rising, Tri-State home values havebeen sinking, First Street Foundation (Aug. 23, 2018)(https://firststreet.org/press/as-the-seas-have-been-rising-tri-state-homevalues-have-been-sinking)............................................................................ 11
Press Release, Rising Seas Swallow $403 Million in New England Home
Values, First Street Foundation (Jan. 22, 2019)(https://assets.firststreet.org/uploads/2019/03/Rising-Seas-Swallow-403Million-in-New-England-Home-Values.pdf) …………………………...... 11
Press Release, Sea Level Rise Sinks Alabama Home Values by More Than
$157 Million, First Street Foundation (Dec. 3, 2018)(https://firststreet.org/press/sea-level-rise-sinks-mississippi-home-values-bymore-than-263-million) ……………………………………………….….. 11
vii

Press Release, Sea Level Rise Sinks Mississippi Values by More Than $263
Million, First Street Foundation (Dec. 3, 2018)(https://firststreet.org/press/sea-level-rise-sinks-mississippi-home-values-bymore-than-263-million) ……………………………………………….….. 11
Press Releases, Domestic Energy Producers Alliance,
https://depausa.org/news/news-2. / (last visited Aug. 7, 2024). ………….. 22
Randi Mali, Meet the Companies that are Leading the Way on Scope 3
Emissions, Ceres (Nov. 8, 2022),
https://www.ceres.org/resources/news/meet-the-companies-that-are-leadingthe-way-on-scope-3-emissions..................................................................... 19
Rising Seas, Rising Costs: Climate Change and the Economic Risks to
Coastal Communities: Hearing Before the U.S. Senate Budget Committee,
118th Cong. (Mar. 1, 2023) ………………..…………………………. 12, 14
Riskier Business: How Climate is Already Challenging Insurance Markets:
Hearing Before the U.S. Senate Budget Committee, 118th Cong. (June 5,2024)……………………………………………………………………12, 15
Risky Business: How Climate Change is Changing Insurance Markets, 118th
Cong. (Mar. 22, 2023) ……………………………………..…………. 12, 13
Simon Black, et al., IMF Fossil Fuel Subsidies Data: 2023 Update,
International Monetary Fund, (Aug. 24, 2023),
https://www.imf.org/en/Publications/WP/Issues/2023/08/22/IMF-FossilFuel-Subsidies-Data-2023-Update-537281.................................................. 18
Staff of House Committee on Oversight and Accountability Democrats and
Senate Committee on the Budget, 118th Cong., Denial, Disinformation, andDoublespeak; Big Oil’s Evolving Efforts to Avoid Accountability for Climate
Change, United States Senate Committee on the Budget, (April 2024)
https://www.budget.senate.gov/imo/media/doc/fossil_fuel_report1.pdf. …. 7
Statement of the Commission Regardi ng Disclosure of Year 2000 Issues
and Consequences by Public Companies, Investment Advisers, Investment
Companies, and Securities Issuers, 17 C.F.R. § 231, 241, 271, 276. (1998)………………………………………………………………………...……. 6
viii

Stefano Battiston et. al., A climate stress-test of the financial system, 7
Nature Climate Change 283-288 (Mar. 27, 2017)https://www.nature.com/articles/nclimate3255 …………………….…….. 10
Task Force on Climate Action, U.S. Chamber of Commercehttps://www.uschamber.com/program/policy/environmental-affairs-andsustainability/task-force-on-climate-actions (last visited Aug. 7, 2024)…...21
The Enhancement and Standardization of Climate-Related Disclosures for
Investors, 89 Fed. Reg. 21668 (Mar. 6, 2024) (to be codified at 17 CFR 210,
229, 230, 232, 239, and 249)…………………………………………...…3, 5
Texas’ Extremism is Bad for Texas Business, Unlocking America’s Future(May 2004), https://unlockingamericasfuture.org/wpcontent/uploads/2024/05/Textremism-Report.pdf ……………………….. 24
The Matter of the Enhancement and Standardization of Climate-Related
Disclosures for Investors, Securities Act Release No. 112280, Securities
Exchange Act Release No. 99908, No. S7-10-22, (SEC Apr. 4, 2024)……. 3
The U.S. Chamber of Commerce and Climate Policy, InfluenceMap (Mar.
2022), https://influencemap.org/report/The-US-Chamber-of-Commerce-anditsCorporate-Members-on-Climate-17631................................................... 21
Thomas V. Kennedy, A rare municipal bond opportunity: Equity-like yields,
J.P. Morgan, https://privatebank.jpmorgan.com/nam/en/insights/marketsand-investing/ideas-and-insights/a-rare-municipal-bond-opportunity-equitylike-yields#id1 (last visited Aug. 8, 2024)……………………………..… 16
Tom Kompas et al., The Effects of Climate Change on GDP by Country and
the Global Economic Gains from Complying with the Paris Climate Accord,
Earth’s Future (July 13, 2018),
https://agupubs.onlinelibrary.wiley.com/doi/10.1029/2018EF000922 ......... 9
Underwater: Rising Seas, Chronic Floods, and the Implications for US
Coastal Real Estate, Union of Concerned Scientists (June 2018) …….…. 11ix

U.S. Infrastructure is Backed by Municipal Bonds: Three Things to Know,
Municipal Securities Rulemaking Board,
https://www.msrb.org/sites/default/files/MSRB-Infrastructure-Explainer.pdf(last visited Aug. 8, 2024)…………………………………………….…... 16
What are municipal bonds and how are they used?, Tax Policy Center,
https://www.taxpolicycenter.org/briefing-book/what-are-municipal-bondsand-how-are-they-used (last visited Aug. 8, 2024) ………………….…… 16
Who’s Fighting the Clean Power Plan and EPA Action on Climate Change,
Union of Concerned Scientists (Apr. 13, 2016),
https://www.ucsusa.org/resources/whos-fighting-clean-power-plan#toc-uschamber-of-commerce. ………………………………………………..….. 22x

AMICI CURIAE’S IDENTITY, INTEREST,
AND AUTHORITY TO FILE1
Amici curiae are members of the United States Senate and House ofRepresentatives: Senators Sheldon Whitehouse and Brian Schatz, andRepresentatives Sean Casten and Juan Vargas.
Senator Sheldon Whitehouse represents the state of Rhode Island.
First elected to the Senate in 2006, Senator Whitehouse is the Chair of the
Senate Budget Committee, where he has held 17 hearings over the last 18
months examining climate-related economic, financial, and budgetary risks
our country faces.
Senator Brian Schatz represents the state of Hawaii, a seat he has held
since 2012. Senator Schatz has led key legislation to address climate change
and the financial risks it poses, including the Climate Change Financial Risk
Act.
Representative Sean Casten represents the 6th Congressional Districtof Illinois. First elected in 2019, Representative Casten serves on the House
Financial Services Committee and is Vice Ranking Member of the House

Pursuant to Federal Rule of Appellate Procedure 29(a)(4), amici state thatno counsel for any party authored this brief in any part, and no person orentity other than amici or amici’s counsel made a monetary contribution tofund its preparation or submission.

1

1

Science, Space, and Technology Committee. He has sponsored multiple
pieces of legislation focused on analyzing and addressing climate-related
financial risks.
Representative Juan Vargas represents the 52nd district of the state ofCalifornia. First elected to the U.S. House of Representatives in 2012,
Representative Vargas serves on the Committee on Financial Services. He
is also the co-founder and co-chair of the Sustainable Investment Caucus.
Amici file this brief in support of the Respondent, the Securities andExchange Commission (SEC) and to underscore the serious financial andeconomic risks posed by climate change, the importance of detailed
corporate climate risk disclosures, and the necessity that the SEC compel
climate risk disclosures. They also seek to demonstrate how the instantlitigation fits into a larger attack on environmental, social, and governance(ESG) investing, which is an attack organized and financed by the fossil fuelindustry, that is intended to obscure climate-related risks and pressure
fiduciaries not to disclose them.
I.

INTRODUCTION AND SUMMARY OF ARGUMENTOn March 6, 2024, the SEC adopted amendments to its rules to require
public companies to disclose climate-related information in SEC registration2

statements and annual reports.2 These changes “require information about aregistrant’s climate-related risks that have materially impacted, or arereasonably likely to have a material impact on, its business strategy, resultsof operations, or financial condition.”3 Additionally, “certain disclosuresrelated to severe weather events and other natural conditions will be required
in a registrant’s audited financial statements.”4 Following multiple petitions
for review, the cases were consolidated in the Eighth Circuit.5 The SEC
voluntarily stayed the effective date of the amendments to facilitate “orderly
judicial resolution of those challenges” and “to avoid … potential regulatory
uncertainty.”6
Petitioners argue that the SEC lacks authority to require broad climaterelated risk disclosures and that the rules should therefore be vacated. 7

The Enhancement and Standardization of Climate-Related Disclosures for
Investors, 89 Fed. Reg. 21668 (Mar. 6, 2024) (to be codified at 17 CFR 210,
229, 230, 232, 239, and 249).
3
Id.
4
Id.
5
Iowa v. SEC, No. 24-1522 (8th Cir. Mar. 12, 2024).
6
The Matter of the Enhancement and Standardization of Climate-Related
Disclosures for Investors, Securities Act Release No. 112280, Securities
Exchange Act Release No. 99908, No. S7-10-22, (SEC Apr. 4, 2024).
7
Br. for Pet’rs. of American Free Enterprise Chamber of Commerce et. al(June 14, 2024).
2

3

Petitioners could not be more wrong. 8 Climate change poses bothindividualized risks to companies across multiple industries, and it poses
systemic risks to the economy with the potential to affect companies acrossevery industry. These risks stem from physical effects of climate change,from economic effects of those physical risks in various markets, and fromthe coming global transition away from fossil fuels. Uniform,
comprehensive disclosure of these material risks is vital for investors, andfalls within both the SEC’s statutory authority and its past pattern andpractice with respect to risk disclosures.
The opposition to this rule, including the instant challenge, is part of a
campaign organized and funded by the fossil fuel industry. The campaign
generally opposes so-called “environmental, social and governance”
investing, or “ESG,” but its primary focus is on the “E,” and specifically on
fossil fuel emissions. As climate risks became so indisputable that they
entered the fiduciary horizon of corporate reporting, the fossil fuel industry
fought back with this campaign.
Omnicare, Inc. v. Laborers Dist. Council Contr. Indus. Pension Fund, 575
U.S. 175 (2015) (The Court explained that the Securities Act of 1933
“protects investors by ensuring that companies issuing securities make a‘full and fair disclosure’ of information relevant to the public offering”);
Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1045 (D.C. Cir.1979)(The Court states that SEC is empowered to determine what information isrequired to be disclosed in corporate filings).
8

4

ARGUMENTI.

THE SEC HAS THE AUTHORITY TO REGULATE IN THISSPACEThe Securities Act of 1933 (“Securities Act”) and Securities Exchange
Act of 1934 (“Exchange Act”) give the SEC the authority to require publiccompanies to disclose any information or documents deemed to be“necessary or appropriate in the public interest or for the protection of
investors.” 9 These disclosures facilitate the aims of our securities laws toprotect investors and promote “efficiency, competition, and capitalformation.”10
The SEC has frequently exercised this authority in past rulemaking andrequired “disclosures that provide investors with information on risk-facing
registrants.”11 In August 1998, the SEC published disclosure guidelines

15 U.S.C. § 77a et seq.
Id. § 77b.
11
The Enhancement and Standardization of Climate-Related Disclosures for
Investors, 89 Fed. Reg. 21668 at 63 (Mar. 28, 2024) (citing 17 CFR
229.105(a); see also Adoption of Integrated Disclosure System, Release No.
33-6383, 47 Fed. Reg. 11380 (Mar. 16, 1982) (“1982 Release”). Prior to
1982, the SEC stated in guidance that, if the securities to be offered are of ahighly speculative nature, the registrant should provide “a carefullyorganized series of short, concise paragraphs summarizing the principal
factors that make the offering speculative.” See Guides for Preparation andFiling of Registration Statements, Release No. 33-4666, 29 Fed. Reg. 2490
(Feb. 15, 1964)]. A guideline to disclose a summary of risk factors relating
9

10

5

concerning the material effects of the Y2K (Year 2000) computer bug on
public companies,12 given the growing role of computers in the financial
sector. In August 2020, the SEC approved disclosure guidelines concerningmaterial human capital resources,13 given the role of human capital in acompany’s long-term success. In July 2023, in response to a proliferation of
cybersecurity incidents, the SEC adopted disclosure rules “regarding
cybersecurity risk management, strategy, governance, and incidents by
public companies.”14 The climate risks facing public companies andinvestors are far more material than those risks. 15
Petitioners would have the Court believe that the SEC is trying toregulate climate change or greenhouse gas emissions via the instantto an offering was first set forth by the SEC in 1968 and included
consideration of five factors that may make an offering speculative or risky,
including with respect to risks involving “a registrant’s business or proposedbusiness.” See Guide 6, in Guides for the Preparation and Filing ofRegistration Statements, Release No. 33-4936, 33 Fed. Reg. 18617 (Dec. 17,
1968)].
12
Statement of the Commission Regarding Disclosure of Year 2000 Issues
and Consequences by Public Companies, Investment Advisers, Investment
Companies, and Securities Issuers, 17 C.F.R. § 231, 241, 271, 276. (1998).
13
Modernization of Regulation S-K Items 101, 103, and 105, 17 C.F.R.§
229, 239, 240 (2020).
14
Cybersecurity Risk Management, Strategy, Governance, and Incident
Disclosure, 17 C.F.R. 229, 239, 240, 249. (2023).
15
See, e.g., Global warming is coming for your home, THE ECONOMIST (Apr.
11, 2024), https://www.economist.com/leaders/2024/04/11/global-warmingis-coming-for-your-home.
6rulemaking. 16 Nothing in the instant rule regulates climate change or
greenhouse gas emissions. What the rule does require is the disclosure ofclimate-related risks. Petitioners are devoted to denying those risks, 17 and so
oppose the reporting of them by fiduciaries. But the risks are real.
Given the scale of the risks involved, the SEC’s statutory authority would
have permitted a far stronger disclosure rule. If anything, the agency
actually undershot the mark. The rule that remains, without disclosure
requirements for scope three emissions, falls short of providing issuers andinvestors with information adequate to fully understand a public company’s
climate risk. Nevertheless, the resulting rule falls well within the agency’s
authority.
The SEC routinely amends disclosure requirements, with the blessing ofcourts, 18 as changing realities require more consistency and clarity for
Br. for Pet’rs. of American Free Enterprise Chamber of Commerce et. al(June 14, 2024).
17
See, Staff of House Committee on Oversight and Accountability
Democrats and Senate Committee on the Budget, 118th Cong., Denial,
Disinformation, and Doublespeak; Big Oil’s Evolving Efforts to Avoid
Accountability for Climate Change, UNITED STATES SENATE COMMITTEE ON
THE BUDGET, (April 2024),
https://www.budget.senate.gov/imo/media/doc/fossil_fuel_report1.pdf.
18
Basic, Inc. v. Levinson, 485 U.S. 224 (1988) (adopts definition ofmateriality); SEC v. Life Partners Holdings, Inc., 854 F.3d 765 (5th Cir.
2017) (applying regulations of disclosure of risks); Panther Partners Inc v.
Ikanos Communs., Inc., 681 F.3d 114 (2d Cir. 2012) (disclosures were
inadequate under Item 303 of regulation S-K).
16

7

investors. As climate-related risks mount and climate disasters increase infrequency and severity, investors need more clarity and a better
understanding of these risks.19 In response to investor demand, many
companies already voluntarily report climate risk and emissions data. 20 As
the SEC has made clear, it is not regulating climate change or greenhousegas emissions, but is discharging its duty to provide investors withinformation about material risks, and to harmonize for investors the climate
risk and emissions data that many companies already make public.
Transparency about climate risks is not only material to individual
investors; 21 it can also help limit climate-related systemic financial threats.
Transparency about companies that face significant climate-related risks

19

Disclose What Matters: Bridging the Gap Between Investor Needs andCompany Disclosures on Sustainability, CERES (Aug. 15, 2018),
https://www.ceres.org/resources/reports/disclose-what-matters-bridging-gapbetween-investor-needs-and-company-disclosures; David Gelles, How a
Climate Rule Got Watered Down, THE NEW YORK TIMES (Mar. 5, 2024),
https://www.nytimes.com/2024/03/05/climate/how-a-climate-rule-gotwatered-down.html.
20
Linda-Eling Lee, US firms fall further behind global peers on climate
disclosure, MSCI SUSTAINABILITY INSTITUTE (Feb. 14, 2024),
https://www.msci-institute.com/insights/us-firms-fall-further-behind-globalpeers-on-climate-disclosure/ (Showing that forty-five percent of listed U.S.
companies report Scope 1 and 2 emissions.).
21
Celso Brunetti et al., Climate Change and Financial Stability, BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM (Mar. 19, 2021),
https://www.federalreserve.gov/econres/notes/feds-notes/climate-changeand-financial-stability-20210319.html.
8reduces the danger that large classes of stranded assets accumulate overtime. Transparency about systemic economic risks allows markets to act toreduce the likelihood of economic disasters. To claim that the SEC can’t
regulate in this space is to claim that the agency can look at motes but not atbeams.
II.

CLIMATE CHANGE POSES SYSTEMIC FINANCIAL AND
ECONOMIC RISKS

In evaluating this real-world SEC rule, one must start by evaluatingclimate risk in the real world. Over the last few decades, climate change has
accelerated, and the risks that it poses to the economy and the financial
sector (and by extension to companies) have grown accordingly. Peerreviewed academic papers, economic studies, presentations by central banks,
testimony before the Senate Budget Committee,22 and even a recent coverarticle from The Economist 23 all warn that climate change poses systemicrisks to our economy and to our financial sector. 24 These “systemic risks

Letter from Chairman Sheldon Whitehouse to Republican Budget
Committee Members, U.S. SENATE COMMITTEE ON THE BUDGET, (Mar. 25,2024),
https://www.budget.senate.gov/imo/media/doc/letter_to_republican_budget_
committee_members_regarding_climate-related_risks_to_the_economy.pdf.
23
THE ECONOMIST, supra note 15.
24
See, e.g., Tom Kompas et al., The Effects of Climate Change on GDP by
Country and the Global Economic Gains from Complying with the Paris
22

9

have the potential to destabilize capital markets and lead to serious negative
consequences for financial institutions and the broader economy.” 25 Reports
estimate climate-related losses in the trillions of dollars.26 A huge body ofwork from economists, central bankers, financial experts, insurance andmortgage industry leaders warns of the economic dangers of climate risk.27

Climate Accord, EARTH’S FUTURE (July 13, 2018),
https://agupubs.onlinelibrary.wiley.com/doi/10.1029/2018EF000922;
Patrick Bolton et. al., The Green Swan: Central banking and financial
stability in the age of climate change, BANK FOR INTERNATIONALSETTLEMENTS, , (Jan. 2020), https://www.bis.org/publ/othp31.pdf; Global
Turning Point Report, DELOITTE (July 2022),
https://www.deloitte.com/an/en/issues/climate/global-turning-point.html; Acall for action: Climate change as a source of financial risk, NETWORK FOR
GREENING THE FINANCIAL SYSTEM (Apr. 2019),
https://www.ngfs.net/sites/default/files/medias/documents/ngfs_first_compre
hensive_report_- _17042019_0.pdf.
25Addressing Climate as a Systemic Risk: A call to action for U.S. financial
regulators, CERES, at vi (June 2020),
https://www.ceres.org/resources/reports/addressing-climate-systemic-risk.
26
38 trillion dollars in damages each year: World economy alreadycommitted to income reduction of 19% due to climate change, POTSDAM
INSTITUTE FOR CLIMATE IMPACT RESEARCH (April 17, 2024); DELOITTE
supra note 23;27
See, e.g., Mark Carney, Breaking the tragedy of the horizon – climatechange and financial stability, Address at Lloyd’s of London, (Sept. 29,2015); Paul Fisher, Confronting the challenges of tomorrow’ world, Address
at the Economist’s Insurance Summit 2015, London, (Mar. 3, 2015);
NETWORK FOR GREENING THE FINANCIAL SYSTEM supra note 23; Christopher
McGlade & Paul Elkins, The geographical distribution of fossil fuels unused
when limiting global warming to 2 °C, 517 NATURE 187-190 (Jan. 8, 2015);
J. F. Mercure et al., Macroeconomic impact of stranded fossil fuel assets, 8
NATURE CLIMATE CHANGE 588 - 593 (2018)https://www.nature.com/articles/s41558-018-0182-1; Stefano Battiston et.
10al., A climate stress-test of the financial system, 7 NATURE CLIMATE CHANGE
283-288 (Mar. 27, 2017) https://www.nature.com/articles/nclimate3255;
Expert Report of Joseph E. Stiglitz, Ph.D., Juliana v. US, Civ. 6:15-cv01517-AA (9th Cir. 2018); Underwater: Rising Seas, Chronic Floods, andthe Implications for US Coastal Real Estate, UNION OF CONCERNEDSCIENTISTS (June 2018); Press Release, As the seas have been rising, homevalues have been sinking, FIRST STREET FOUNDATION (July 25, 2018)(https://firststreet.org/press/as-the-seas-have-been-rising-home-values-havebeen-sinking); Press Release, Sea Level Rise Sinks Alabama Home Values
by More Than $157 Million, FIRST STREET FOUNDATION (Dec. 3, 2018)(https://firststreet.org/press/sea-level-rise-sinks-mississippi-home-values-bymore-than-263-million); Press Release, Sea Level Rise Sinks Mississippi
Values by More Than $263 Million, FIRST STREET FOUNDATION (Dec. 3,2018) (https://firststreet.org/press/sea-level-rise-sinks-mississippi-homevalues-by-more-than-263-million); Press Release, Rising Seas Swallow $403
Million in New England Home Values, FIRST STREET FOUNDATION (Jan. 22,2019) (https://assets.firststreet.org/uploads/2019/03/Rising-Seas-Swallow403-Million-in-New-England-Home-Values.pdf); Press Release, As the seas
have been rising, Tri-State home values have been sinking, FIRST STREETFOUNDATION (Aug. 23, 2018) (https://firststreet.org/press/as-the-seas-havebeen-rising-tri-state-home-values-have-been-sinking); Amine Ouazad &Matthew E. Kahn, Mortgage Finance in the Face of Rising Climate Risk,
NATIONAL BUREAU OF ECONOMIC RESEARCH (Sept. 30, 2019),
https://www.nber.org/system/files/working_papers/w26322/revisions/w2632
2.rev0.pdf; Global: Scenario analysis for assessing climate-related risks,
Global Insights BLACKROCK (Apr. 2019),
https://www.blackrock.com/us/individual/insights/blackrock-investmentinstitute/physical-climate-risks; Life’s a Beach, FREDDIE MAC (Apr. 26,
2016), https://www.freddiemac.com/research/insight/20160426-lifes-abeach; 2017 Most Dangerous Emerging Risks, Coastal Mortgage Value
Collapse, RISK & INSURANCE (Apr. 7, 2017),
https://riskandinsurance.com/coastal-mortgage-value-collapse/; Bolton supranote 24; DELOITTE supra note 24; Jonathan Woetzel et al., Climate risk andresponse, Physical hazards and socioeconomic impacts, MCKINSEY GLOBALINSTITUTE (Jan. 2020),
https://www.mckinsey.com/~/media/mckinsey/business%20functions/sustai
nability/our%20insights/climate%20risk%20and%20response%20physical%
20hazards%20and%20socioeconomic%20impacts/mgi-climate-risk-and11

Last year, the United States experienced a record 28 weather and climate
disasters costing $1 billion or more.28 Climate-related extreme weather
events, such as hurricanes, wildfires, floods, heat waves and droughts pose
obvious physical threats to property, infrastructure and supply chains. Theypose obvious economic risks too. In warnings to the U.S. Senate Committee
on the Budget, experts identified climate risks to insurance markets,
mortgage markets, and property markets. 29 Wildfires, sea level rise, extreme
precipitation, and tropical cyclones – all made more frequent and/or more
severe by climate change – are making coastal, wildfire-adjacent, and otherexposed communities far riskier places. “These concerns are not merely

response-full-report-vf.pdf; Martinich, J. et al., Reducing Risks ThroughEmissions Mitigation, Impacts, Risks and Adaptation in the United States:
Fourth National Climate Assessment, Volume II, Global Change Research
Program, Washington, DC, USA, pp. 1346–1386.
https://nca2018.globalchange.gov/downloads/NCA4_Ch29_Mitigation_Full.
pdf.
28
Gelles supra note 19.
29See, e.g., Rising Seas, Rising Costs: Climate Change and the Economic
Risks to Coastal Communities: Hearing Before the U.S. Senate Budget
Committee, 118th Cong. (Mar. 1, 2023); A Burning Issue: The Economic
Costs of Wildfires: Hearing Before the U.S. Senate Budget Committee,
118th Cong. (Mar. 8, 2023); Risky Business: How Climate Change isChanging Insurance Markets, 118th Cong. (Mar. 22, 2023); Riskier
Business: How Climate is Already Challenging Insurance Markets: Hearing
Before the U.S. Senate Budget Committee, 118th Cong. (June 5, 2024).
12

theoretical.” 30 And, for just one example, they make property insurance insuch areas more expensive and less accessible.
Florida, for instance, is already feeling the effects of climate risk on its
insurance market. Florida has the highest premiums in the nation; its highrisk areas have premiums five times higher than the national average.31
Despite efforts from the state to mitigate losses (e.g., updated building
codes), insurance premiums continue to increase. 32 Florida’s experience“stands as a warning of what the future may hold [for] other states.”33
Insurance, mortgage, and property markets interact. Added insurance
expense is an added cost of ownership that depresses property values. Here“a broken insurance market is not the problem” but a “symptom of a larger
problem—too much risk for the market to bear.”34 As insurance becomes
unaffordable and unavailable, mortgage markets are compromised, as they

Risky Business supra note 29, at 1 (Testimony of Benjamin J. Keys,
Ph.D.)
https://www.budget.senate.gov/imo/media/doc/Dr.%20Benjamin%20J.%20
Keys%20-%20Testimony%20-%20Senate%20Budget%20Committee.pdf.
31
Riskier Business supra note 29, at 1 (Testimony of Rade Musulin)https://www.budget.senate.gov/imo/media/doc/mrrademusulinsenatebudgetc
ommitteetestimony.pdf.
32
Id. at 2.
33
Id. at 2.
34
Risky Business supra note 29, at 2 (Testimony of Nancy Watkins)
https://www.budget.senate.gov/imo/media/doc/Ms.%20Nancy%20Watkins%20-%20Testimony%20-%20Senate%20Budget%20Committee.pdf.
30

13require insurance. Without mortgages, property prices fall, as the pool ofpotential buyers shrinks (Fannie Mae and Freddie Mac require properties
whose mortgages they back to carry insurance). In sum, insurance market
collapse leads to mortgage market collapse leads to property values collapse.
We saw in the 2008 Financial Crisis how trouble in mortgage markets
coupled with declining property values inflicted widespread economic
contagion with severe consequences throughout the country. The former
chief economist for Freddie Mac warned that the climate-driven risk cascade
could destroy more real estate value than did the 2008 Financial Crisis. 35
Financial experts in Senate Budget Committee hearings explicitly compared
the current trajectory to the 2008 Financial Crisis. The president of theinsurance giant Aon testified that “just as the US economy was overexposed
to mortgage risk in 2008, the economy today is overexposed to climate
risk.”36 Dr. Ishita Sen warned that property insurance failures harm property
values, as promptly compensated insurance claimants are less likely to walkaway and default on mortgages. Sound property insurance also reduces risk
to banks and Government Sponsored Enterprises (GSEs) like Fannie Mae
Rising Seas, Rising Costs supra note 29, at 1 (Testimony of Dr. Sean
Becketti) https://www.budget.senate.gov/download/testimony-Becketti.
36
Risky Business supra note 29, at 2 (Testimony of Eric Anderson)
https://www.budget.senate.gov/imo/media/doc/Mr.%20Eric%20Andersen%
20-%20Testimony%20-%20Senate%20Budget%20Committee.pdf.
35

14

and Freddie Mac, protecting taxpayers.37 But like 2008, there is evidence
that some rating agencies are inflating ratings to get low-quality insurers past
GSE requirements.38 Of course, climate-related extreme weather increases
fragile insurers’ risk of becoming insolvent, and that in turn increases risk inthe mortgage market. 39
We learned from the 2008 Financial Crisis that when borrowers’ risks are
neglected and lenders issue too many risky loans, these risks can accumulate
to the point where they become “systemic,” and then the entire financial
system and economy suffer from the collapse. 40 The CEO of an investment
research and consulting firm that develops models to connect climate
science and investment science warned that “the longer the markets take toprice in [climate] challenges, the worse the ultimate reckoning will be.” 41
As the saying goes: these disasters happen gradually, then suddenly. It
looks like we are in the “gradually” phase of insurance/mortgage/property
market peril.
Riskier Business supra note 29, 2 (Testimony of Dr. Ishita Sen)
https://www.budget.senate.gov/download/dr-ishita-sen_-senate-budgetcommittee---testimony.
38
Id. at 3.
39
Id. at 3.
40
Id. at 4.
41
A Burning Issue supra note 29, 1 (Testimony of David Burt)
https://www.budget.senate.gov/download/mr-david-burt_-testimony--senate-budget-committee.
3715

Along a separate vector of risk, climate hazards threaten the municipal
bond market. Municipal bonds finance infrastructure in local
communities.42 More than seventy percent of the country’s infrastructure isfinanced with local government bonds,43 including essential public services
like water treatment facilities, roads, bridges and power plants. 44 Municipal
bonds have historical default rates less than one percent. 45 Unfortunately,
climate risks threaten their stability. A climate-related disaster can create
default risks from the physical damage of the disaster; increasingly
unavailable or unaffordable property insurance may undermine a local
community’s tax base; 46 or persistent sea level rise may gnaw away atWhat are municipal bonds and how are they used?, TAX POLICY CENTER,
https://www.taxpolicycenter.org/briefing-book/what-are-municipal-bondsand-how-are-they-used (last visited Aug. 8, 2024).
43
U.S. Infrastructure is Backed by Municipal Bonds: Three Things to Know,
MUNICIPAL SECURITIES RULEMAKING BOARD,
https://www.msrb.org/sites/default/files/MSRB-Infrastructure-Explainer.pdf(last visited Aug. 8, 2024).
44
Id.
45
Thomas V. Kennedy, A rare municipal bond opportunity: Equity-likeyields, J.P. MORGAN,
https://privatebank.jpmorgan.com/nam/en/insights/markets-andinvesting/ideas-and-insights/a-rare-municipal-bond-opportunity-equity-likeyields#id1 (last visited Aug. 8, 2024).
46
Investors Underappreciate Climate-Related Risks in their Portfolios,
BLACKROCK, (Apr. 4, 2019),
https://www.blackrock.com/corporate/newsroom/pressreleases/article/corporate-one/press-releases/investors-underappreciateclimate-related-risks-in-their-portfolios.
42

16

valuable coastal properties, ultimately removing them from tax rolls. Theserisks make municipal bonds a less safe option for investors, including
corporate investors reliant on their historic safety.
There are three major categories of climate risk. One is the immediate
physical damage and economic shock of climate catastrophes; the second is
the impact of that future risk carried into current insurance, mortgage,
property and bond markets; and there is a third: transition risk as the world
economy moves away from dangerous carbon fuels. The risk of “stranded”
carbon assets is a looming financial threat in the energy and financial
sectors,47 a threat dangerous enough to become “systemic,” with economic
damage cascading beyond those sectors.48
Investors need to understand the financial implications of such“stranded” assets: on public companies that own them; on banks and otherfinancial sector companies that financed the assets; and, since stranded fossil
fuel assets pose possibly a “systemic” risk to the economy, 49 on all
Gregor Semieniuk, et al., Stranded fossil-fuel assets translate to major
losses for investors in advanced economies,12 NATURE CLIMATE CHANGE
532-538 (2022).
48
Hugh Miller & Simon Dikau, Preventing a ‘climate Minsky moment’:environmental financial risks and prudential exposure limits, GRANTHAMRESEARCH INSTITUTE ON CLIMATE CHANGE AND THE ENVIRONMENT, 9,19
(Mar. 2022), https://www.lse.ac.uk/granthaminstitute/wpcontent/uploads/2022/03/Preventing-a-climate-Minsky-moment.pdf.
49
Mercure supra note 27.
4717

companies potentially exposed to this “carbon bubble” risk. Petitioners fault
the SEC for overreacting, but these are real risks, of real relevance toinvestors. If anything, more complete disclosures along these lines shouldhave been required.
Here is where the “scope three” problem comes in. The SEC rule
requires better disclosure of “stranded asset” risks from companies that
potentially face them, but not comprehensive disclosure of the “stranded
asset” risk associated with scope three emissions. For many companies —
auto companies, oil, gas and coal producers, refiners, commercial airliner
manufacturers, to name but a few — the bulk of their emissions
responsibility is downstream “scope three” emissions. These downstream“scope three” emissions are the most likely to be affected by global efforts tofind a pathway to global climate safety.
The “free to pollute” business model of the fossil fuel industry is an
obvious target for climate safety strategies: it’s an economically improperand unsound subsidy (in the hundreds of billions of dollars annually in the
U.S. alone 50); it creates massive negative externalities in pollution cost andSimon Black, et al., IMF Fossil Fuel Subsidies Data: 2023 Update,
INTERNATIONAL MONETARY FUND, (Aug. 24, 2023),
https://www.imf.org/en/Publications/WP/Issues/2023/08/22/IMF-FossilFuel-Subsidies-Data-2023-Update-537281.
50

18

impairs innovation in emissions reduction; and it’s often propped up bypolitical power and influence, not by merit. The archetypal “stranded asset”
is an asset that is not economically viable without these massive subsidies,and these massive subsidies are rarely if ever economically legitimate.
Without accurate, uniform disclosure of scope three emissions, it will be
substantially more difficult for investors to fully appreciate the transition and“stranded asset” risks facing public companies.
In sum, understanding the material risks facing a public company
requires investors to know how exposed those companies are to climate risks— physical, economic, and transition; individual, industry-wide, and“systemic” — and how the companies plan to manage these risks. 51 Many
public companies implement their own climate risk disclosures 52 — but
mandatory disclosures are needed to help issuers and investors understandthe financial consequences of investment options. Uniform, mandatory
climate risk disclosures will help reduce financial instability, reduce theeconomic risk of stranded assets, and reduce the systemic risks that can

Mercure supra note 27.
Randi Mali, Meet the Companies that are Leading the Way on Scope 3
Emissions, CERES (Nov. 8, 2022),
https://www.ceres.org/resources/news/meet-the-companies-that-are-leadingthe-way-on-scope-3-emissions.
51
52

19

“destabilize capital markets and lead to serious negative consequences forfinancial institutions and the broader economy.”
The “systemic risks” are multiple: insurance failure, coastal property
values collapse, wildfire-adjacent property value collapse, and assets
stranded as the “carbon bubble” bursts. Each poses challenges to companies
across industrial sectors, and more than one of them could occur — indeed
they all could, and all at once. Petitioners claim that the agency has overshot
its authority; the opposite is true. They seek to cast a mouse as a monster,and they are wrong. If anything, the instant rulemaking failed to explicitly
require companies to disclose their risk exposure to climate related systemiccollapses.
III.

PETITIONERS’ PATTERN OF CLIMATE OBSTRUCTION

Petitioners do not come to this argument with clean hands. They are
deeply enmeshed in a fossil fuel-funded network operating (often covertly)
to deny the genuine danger (and risks) of climate change, to obstructlegislative efforts to reduce the danger of fossil fuel emissions, and to abuse
the administrative and adjudicative processes to create delay.

20

Petitioner U.S. Chamber of Commerce (“the Chamber”)53 has for
decades been obstructing climate action in Congress and before executive
agencies, and advocating for policies sought by its fossil fuel donors andmembers, to the point where it has been labeled one of America’s worst
climate obstructers. 54 Despite occasional masquerade, 55 the Chamber has
worked relentlessly to block meaningful climate legislation 56 and to oppose
regulations that would benefit human health and the environment. 57 It
supports climate-denying political candidates. And in courtrooms, “both as

Chamber of Com. of the U.S. v SEC, No. 24-1628, (8th Cir. June 14,2023).
54
See Industry Groups and their Carbon Footprints, INFLUENCEMAP (Sep.
2019), https://influencemap.org/report/Trade-Groups-and-their-CarbonFootprints-f48157cf8df3526078541070f067f6e6.
55
Task Force on Climate Action, U.S. CHAMBER OF COMMERCE
https://www.uschamber.com/program/policy/environmental-affairs-andsustainability/task-force-on-climate-actions (last visited Aug. 7, 2024).
56
Karl Evers-Hillstrom, Arizona chambers run ads targeting Sinema, Kelly
over reconciliation bill, THE HILL (Aug. 2, 2023),
https://thehill.com/lobbying/3584204-us-arizona-chambers-run-adstargeting-sinema-kelly-overreconciliation-bill/.
57
See, e.g., John Bowman, U.S. Chamber of Commerce Opposes Climate
Action that Corporate America Claims to Back, NATURAL RESOURCES
DEFENSE COUNCIL (Sep. 29, 2021), https://www.nrdc.org/bio/johnbowman/us-chambercommerce-opposes-climate-action-corporate-americaclaims-back; The U.S. Chamber of Commerce and Climate Policy,
INFLUENCEMAP (Mar. 2022), https://influencemap.org/report/The-USChamber-of-Commerce-and-itsCorporate-Members-on-Climate-17631.
53

21

a litigant and an amicus, the Chamber maintains a long history of opposing
climate rules and laws.” 58
Petitioner Domestic Energy Producers Alliance (DEPA) has a similar
history of climate-hostile litigation.59 DEPA is a lobbying group founded by
the chairman of Continental Resources (“Continental”), one of the country’s
largest oil and gas producers.60 Since DEPA’s inception, Continental has
deployed DEPA to serve its corporate interests, for example in a lobbying
push for a $140 million extension to the Keystone XL pipeline.61
Petitioner National Center for Public Policy Research (NCPPR) was
originally founded to “change opinions through vocal national campaigns

See, e.g., Kristoffer Tigue, The US Chamber of Commerce Has Helped
Downplay the Climate Threat, a New Report Concludes, INSIDE CLIMATE
NEWS (June 29, 2021),
https://insideclimatenews.org/news/29062021/uschamber-of-commercedownplay-climate-threat-new-report-concludes/; Who’s Fighting the Clean
Power Plan and EPA Action on Climate Change, UNION OF CONCERNEDSCIENTISTS (Apr. 13, 2016), https://www.ucsusa.org/resources/whosfighting-clean-power-plan#toc-us-chamber-of-commerce.
59
Press Releases, DOMESTIC ENERGY PRODUCERS ALLIANCE,
https://depausa.org/news/news-2. / (last visited Aug. 7, 2024).
60
Executive Committee, DOMESTIC ENERGY PRODUCERS ALLIANCE,
https://depausa.org/executive-committee/ (last visited Aug. 7, 2024).
61
David Sheppard et al, Special Report: How Romney energy czar fuelsbusiness with politics, REUTERS (Sept. 21, 2012),
https://www.reuters.com/article/us-hamm-romney-profileidUSBRE88J12L20120921/.
58

22

aimed at supporting Reagan administration initiatives” 62 and is now focusedon challenging environmental regulations. In 2017, NCPPR signed a letter
urging President Trump “to withdraw fully from the Paris Climate Treaty
and to stop all taxpayer funding of UN global warming programs.” 63
The fossil fuel industry has recently been campaigning through public
officials against ESG investing, systematically attacking any initiative toconsider climate-related risks in investment decisions. Petitioner statetreasurers have attacked both federal and state regulations meant to address
climate-related economic risks.64 In 2022, the state treasurer of Petitioner
West Virginia, working with the state’s legislature, barred banks fromcontracting with the state when banks reduced their investments in coal. 65
Petitioners Texas and Oklahoma passed similar laws.66 Freedom ofInformation Act disclosures show the hand of the fossil fuel industry in
About Us, THE NATIONAL CENTER FOR PUBLIC POLICY RESEARCH(archived Nov. 12, 2015) [https://archive.is/hSm6S].
63
Letter to Donald J. Trump from Competitive Enterprise Institute et al.,,(May 8, 2017)(https://web.archive.org/web/20170512185946/https://cei.org/sites/default/fil
es/20170508%20CEI%20Paris%20Treaty%20with%20logos%20%2044%20Final.pdf).
64David Gelles, How Republicans Are ‘Weaponizing’ Public Office Against
Climate Action, THE NEW YORK TIMES (Aug. 5, 2022),
https://www.nytimes.com/2022/08/05/climate/republican-treasurers-climatechange.html.
65
Id.
66
Id.
62

23

developing anti-ESG bills in the West Virginia and Texas legislatures.67(This has not gone well for Texas cities.68) State treasurers from some
Petitioner states pulled money out of investment firms like BlackRock forbeing “too focused on environmental issues.”69 Other state treasurers from
Petitioner states tried to hamper the nomination of federal regulators
supportive of climate risk disclosure. 70
Tellingly, these efforts can be tied back to the State Financial Officer
Foundations (SFOF), a nonprofit organization pushing state treasurers to
advocate for oil and gas interests and impede climate action.71 In 2022,
SFOF hired CRC Advisors, a political strategy firm chaired by Leonard Leo,of Supreme Court notoriety. 72 Consumers Research, an anti-ESG investinggroup funded by Leonard Leo, is SFOF’s largest donor.73 The anti-ESG
operation is a fossil fuel-funded charade.

Anti-ESG and the Fossil Fuel Sector, (May 2023), INFLUENCEMAP
https://influencemap.org/report/Anti-ESG-and-the-Fossil-Fuel-Sector21873.
68
See e.g. Texas’ Extremism is Bad for Texas Business, UNLOCKINGAMERICA’S FUTURE (May 2004), https://unlockingamericasfuture.org/wpcontent/uploads/2024/05/Textremism-Report.pdf.
69
Gelles supra note 64.
70
Id.
71
Id.
72
Id.
73
New: State Financial Officers Foundation, With Deep Ties to Leonard
Leo and Koch Industries, Launches New Anti-ESG Political Arm,
67

24

CONCLUSION
The facts of the matter here are: (1) that climate risks caused by fossil
fuel emissions are real, dangerous, and worsening; (2) that financial
instruments like bonds, mortgages, and insurance policies transpose thosereal-world physical risks into the current economic arena, in a magnitude
that makes those risks “systemic”; (3) that years of well-understoodscientific predictions about those risks have now become so indisputable that
ordinary fiduciary duty requires they be taken into account; (4) that facedwith that new problem, the fossil fuel industry reverted to form and createdan anti-ESG operation using hidden funders, front groups, and well-fundedpolitical actors; and (5) that these front groups and political actors include
Petitioners in the instant case. An honest appreciation by the SEC of thegrave and worsening climate economic risks would justify the agency
requiring considerably stronger climate risk disclosure requirements, but thebottom line remains: requiring disclosure to investors of material climaterelated risks is well within the statutory authority of the agency. It would

UNLOCKING AMERICA’S FUTURE (May 3, 2024),
https://unlockingamericasfuture.org/new-state-financial-officers-foundationwith-deep-ties-to-leonard-leo-and-koch-industries-launches-new-anti-esgpolitical-arm/.
25

actually be hard to imagine a more essential disclosure or a more dangerousrisk.
For these reasons and the reasons enumerated in the Respondent’s
brief, the Court should dismiss the Petitioners’ petitions.
August 15, 2024
Respectfully submitted,/s/ Mark I. Bronson
Mark I. Bronson
Counsel of Record
NEWMAN BRONSON & WALLIS
2300 Westport Plaza Drive
St. Louis, MO 63146 (314) 878-8200
mbronson@newmanbronson.com
Gerson H. Smoger, Ph.D
SMOGER & ASSOCIATES
4228 Hallmark Dr.
Dallas, TZ 75229(510) 531-4529
gerson@texasinjurylaw.com
Counsel for Amici Curiae
United States Senate and House ofRepresentatives Members Senators
Sheldon Whitehouse and Brian Schatz,
and Representatives Sean Casten andJuan Vargas

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CERTIFICATE OF COMPLIANCE
This brief complies with type-volume limits because, excluding theparts of the document exempted by Fed. R. App. R. 32(f) (cover page,
disclosure statement, table of contents, table of citations, signature block,certificates of counsel). This brief contains 5117 words.
This brief complies with the typeface and type style requirements
because: this brief has been prepared in a proportionally spaced typeface using
Microsoft Word for Microsoft Office 365 with Times New Roman 14 point
font.
I further certify that this brief has been scanned for viruses and is virusfree.
Date: August 15, 2024

/s/ Mark I. Bronson
Mark I. Bronson
NEWMAN BRONSON & WALLIS
2300 Westport Plaza Drive
St. Louis, MO 63146 (314) 878-8200
mbronson@newmanbronson.com
Counsel of Record for Amici Curiae

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CERTIFICATE OF SERVICEI HEREBY CERTIFY that on August 15, 2024, the foregoing
document was served on all parties or their counsel of record through
CM/ECF system.
Dated this August 15, 2024.
/s/ Mark I. Bronson
Mark I. Bronson
NEWMAN BRONSON & WALLIS
2300 Westport Plaza Drive
St. Louis, MO 63146 (314) 878-8200
mbronson@newmanbronson.com
Counsel of Record for Amici Curiae

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