This week, the U.S. Security and Exchange Commission finally adopted rules that could force large companies to disclose both emissions and the climate-related risks that they face. While the rule is far from set in stone and expected to face a lot of legal issues, it offers a small glimmer of hope that big business will be required to get its climate house in order. Here’s what you need to know about the new SEC rules and how they came to be.

The New Rule vs. the Proposed Rule: What’s Changed?

The original proposal began to make its way through the SEC about two years ago, and since then, the SEC has taken thousands of comments on the rules into consideration, according to the New York Times. Initially, the new rule, which was approved in 2022 by a 3 to 1 vote, aimed to give investors and the government a clearer idea of the risks that ongoing climate change poses to companies. The rule would hold companies accountable for the role they play in climate change at the same time that it would give investors the ability to leverage that knowledge and force businesses to change to prevent and slow the rise in global temperatures.

The original rule received vociferous backlash from the GOP and a variety of companies, and industries–especially those in the fossil fuel business. It focused on Scope 1 and Scope 2 emissions, with a phased-in approach to Scope 3 emissions. If you’d like to find out more about what a Life Cycle Analysis is and what each of these terms means, you can check out my piece from last year that helps break it down.

As a result of the pushback that the original rule got, particularly around the Scope 3 emissions rules, the SEC has scaled back some of its more ambitious proposals, and as the Times reports, the new rule is watered down. The Scope 3 emissions requirements would have forced companies to report emissions from their supply chains, or the entire “value chain” which would have included everything from parts and services from suppliers to how consumers dispose of products at the end of life.

Instead, the new rule will only compel disclosures of Scopes 1 and 2 emissions if companies deem them material, which might result in some instances where emissions are not reported at all, essentially declawing the rules. Additionally, the new rule will only require large companies to disclose emissions they consider to be “material” to their own bottom line.

The new rules were originally intended to meet investors where they wanted to be met and offer a more apples-to-apples comparison for those who were concerned about climate change, instead of the current approach, which has been described as “a haphazard potpourri” according to the New York Times. According to reporting by The New York Times, the S.E.C. said that around one-third of the 7,000 corporate annual reports it reviewed in 2019 and 2020 had some type of climate impact disclosures. Many companies currently disclose Scope 1 and Scope 2 emissions, and states like California have passed laws to force companies to work towards managing and disclosing Scope 3 emissions, though, as expected, the Chamber of Commerce is suing the state to stop it.

The Deal Isn’t Done Yet

At the heart of the debate lies a wider pullback around Environmental, Social and Governance (ESG), as well as questions around just whether or not the SEC should have any say over climate change.

As of the writing of this newsletter, ten states have filed suits against the SEC for the latest climate change rule, which won't go into effect until 2026. The plaintiffs included states like New Hampshire, West Virginia, Georgia, Alabama, Alaska, Indiana, South Carolina, Wyoming and Virginia, all of which are challenging the SECs authority to make the rule.

Members of Congress, including Tim Scott, (R-S.C.), have said that they will fight the new rule under the Congressional Review Act, which states that Congress can review and potentially overturn any new rule using a joint resolution. However, it’s important to note that at this point, the Senate and House have struggled to agree on anything over the last several years, most recently, having barely been able to set a stopgap spending budget.

On the flipside of the coin, environmental groups like the Sierra Club and Earthjustice are looking at launching legal challenges to the new rule on the grounds that it doesn’t go far enough.

While the rule would put the US on a level playing field with the EU and the UK, both of which have rules for climate disclosures, the incredibly divisive political climate, paired with the tremendous power of the oil and gas lobby may yet derail the new SEC rules from becoming finalized. In fact, there’s speculation that the SEC and the chair, Gary Gensler, worked hard to put the new climate rule on solid legal footing before finalizing it in a 3 to 2 vote, with the two Republican SEC commissioners voting against it.

Even though the rules do advance the aim of stemming the tide of climate change caused by big business, environmentalists say that the rule doesn’t go far enough, leaving too many loopholes.

At the same time, if you know anything about compromises, business, and the legal system in this country, you know that when neither side of the aisle is happy with the final outcome, it’s probably the best option. The new SEC rule is still significant in that it does begin to standardize the rules around ESG reporting, and it does give investors slightly more power to push big corporations a little bit further on their climate change commitments and outcomes.

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