The SEC’s costly new climate rule couldn’t come at a worse time

As energy prices remain elevated, the Securities and Exchange Commission is moving forward with a rulemaking that will push the United States away from affordable energy production and toward expensive energy sources that take years to develop to scale. The SEC’s burdensome rule is chock-full of costly disclosures based on unreliable climate risk data that is difficult to quantify.

The SEC’s publication of the new climate disclosure rule is par for the course for the Biden administration. By issuing this rule, SEC chair Gary Gensler is circumventing the authority of the SEC and administering the Democrats’ climate agenda via executive action without any input from Congress.

Fortunately, House and Senate Republicans have vocalized their opposition to the rule. Reps. Ted Budd (R-N.C.) and Ralph Norman (R-S.C.) sent a letter, along with 40 House members, urging the SEC to withdraw the rule. Sen. Kevin Cramer (R-N.D.) also led a group of Republicans requesting that the SEC rescind the rule.

Both letters argue that the SEC has superseded its statutory authority and failed to establish that the disclosures required in the rule are material and “have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information available.”

The new climate disclosure rule is complex and requires more time for the public to provide thorough feedback. Currently, the SEC is offering excessively short comment periods for rulemakings, and fudging the timeframes by telling the public that comment periods could be “30 days after publication in the Federal Register” or 60 days after issuance, “whichever is later.”

Under Gensler’s leadership, the SEC has published most of its rulemakings with a comment period of fewer than 60 days. According to data compiled by Center Forward, 74 percent of Gensler’s rules have comment periods of 30 days and only 11 percent are 60 days. Stakeholders have explicitly stated that the short comment periods are unworkable. The Office of the Federal Register’s Guide to the Rulemaking Process has also written that federal agencies may want to provide comment periods of “180 days or more” for complex rules.

Clearly, the SEC is trying to ride roughshod over the public and craft consequential rulemakings without regard to the substantial impacts they have on households, retail investors and the economy as a whole.

The data the SEC will require companies to compile and submit to the agency is difficult to quantify. To name a few, the rule requires disclosure of greenhouse gas emissions even if the public company is not directly involved (e.g. scope 2 and 3); disclosure of a climate transition plan and goals; disclosure of climate risks on a company in the short-term and long-term; and risk management processes. Compiling this data to be reported in 10-K statements and other disclosures is an arduous task that may be based on limited or nonexistent information. 

Climate-related financial risks are difficult to understand and quantify. A report issued by the Bank for International Settlements discusses the difficulty of calculating climate risk information and how unreliable it can be. The report states that as a practical matter, “the range of impact uncertainties, time horizon inconsistencies, and limitations in the availability of historical data on the relationship of climate to traditional financial risks, in addition to a limited ability of the past to act as a guide for future developments, render climate risk measurement complex and its outputs less reliable as risk estimators.”

Other federal agencies also intend to force banks and other financial institutions to reveal their exposure to the oil and gas industry. The Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Department of Labor, Federal Insurance Office, Municipal Securities Rulemaking Board, and Commodity Futures Trading Commission are all pursuing initiatives to require the quantification of ambiguous climate risk data.

The Democrats’ full-court press on the climate agenda will keep energy prices at historically high levels and impose burdensome disclosure and reporting requirements on public companies. At the end of the day, all this rule will do is make it more expensive for businesses to operate, which will pass the costs of goods and services down to individuals and households.

Lawmakers should oppose the SEC’s rule and support initiatives to prohibit the SEC from requiring businesses to disclose emissions data. 

Bryan Bashur is a federal affairs manager at Americans for Tax Reform and executive director of the Shareholder Advocacy Forum.