The SEC and Climate Litigation

Authors

• Lisa Benjamin, Lewis & Clark Law School

First Page

289

Abstract

The controversy surrounding the SEC’s climate-related financial disclosure rule continues. This Essay updates my previous work on this issue, where I identified two opportunities and two obstacles to the SEC promulgating final rules on climate-related financial risk disclosures. The two opportunities were a shifting political landscape under the then-Biden Administration (which took a whole-of-government approach to addressing the climate crisis) and rising investor concern over the risks that climate change posed to their investments. The two obstacles I identified were business resistance to disclosure rules, and rising judicial hostility to the SEC. Today, the political landscape has shifted dramatically and the SEC, under the second Trump Administration, has taken an unusual step—stating it will no longer defend its final climate disclosure rule against litigation pending in the Eighth Circuit, but refusing to rescind its own rule. The Eighth Circuit has not accepted the Commission’s position and has now asked the SEC to make up its mind—either recommence its prior defense of its own rule or rescind it via notice-and-comment rulemaking.

This Essay looks back on how we ended up here—providing a brief overview of the history of the SEC final rule, an analysis of a snapshot of comments submitted on the draft rule from a variety of actors, and an assessment of the major changes the SEC made to its final rule in response to comments received. It then walks through briefs from the petitioners and the SEC (which originally defended its final rule prior to the change in presidential administrations).

The outcome of this dramatic turn of events remains unclear. Will the SEC decide to defend a rule it no longer believes in, or undergo the lengthy and labor-intensive process of rescinding its rule? If the former strategy is chosen, the outcome of this pending litigation could be significant—not just for the climate disclosure rule but for the ability of the SEC to exercise statutory authority over disclosures generally that it considers to be in the public interest, whether climate-related or not. Alternatively, rescinding its own rule would likely attract litigation, and take years to complete. In either case, the saga around SEC climate-related disclosures continues.

Recommended Citation

Lisa Benjamin, The SEC and Climate Litigation, 30 Lewis & Clark L. Rev. 289 (2026).
Available at: https://lawcommons.lclark.edu/lclr/vol30/iss2/3