SEC Climate Disclosure Rules challenges to be heard in Eighth Circuit Court of Appeals

All-time NCAA basketball great Caitlin Clark and her Iowa Hawkeyes will begin their quest for the 2024 national championship this weekend at their home arena in Iowa City.  

But this is not the only Midwestern court drawing the eyes of the nation.  On March 21, the U.S. Court of Appeals for the Eighth Circuit was selected as the court that will decide all the challenges asserted against the SEC’s Climate Disclosure Rules, which the agency released on March 6.  The Eighth Circuit houses the states of Iowa, Missouri, Arkansas, Minnesota, Nebraska and the Dakotas.    

The Eighth Circuit was selected by random draw from among the six different circuits in which nine petitions in total were filed to challenge the Rules.  Seven of the petitions, filed by various Republican state attorneys general and business interests, seek to have the Rules overturned as beyond the SEC’s authority or procedurally improper.  Two of the petitions, filed by environmental groups, claim the Rules did not go far enough.  We previously discussed the Rules here.    

Under the Congressional statute governing such “multicircuit petitions,” the Judicial Panel on Multidistrict Litigation conducted the random selection of a sole circuit, and also consolidated all of the distinct petitions in a single case.  This will leave the Eighth Circuit with a rather tricky game of three-dimensional chess – organizing the briefing and argument of an array of legal theories asserted from multiple perspectives on the scope of the SEC’s authority. 

Adding to the complexity is that the relevant law is potentially in some flux.  The U.S. Supreme Court is due to issue opinions in the coming months in cases that may reshape the long-standing “Chevron doctrine,” governing the degree to which courts are to defer to an agency’s interpretation of statutes it administers.    

As we discussed previously, the Fifth Circuit entered a temporary “administrative stay” of the Rules on March 15.  Under the multicircuit petition statute, this order does not tie the hands of the Eighth Circuit, which is now free to revoke or modify that stay as it sees fit.  

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