By way of politics, the current Commission would like to dismantle that rule. And they would like to do so unlawfully. The Administrative Procedure Act (APA) governs the process by which we make rules. The APA prescribes a careful, considered framework that applies both to the promulgation of new rules and the rescission of existing ones.[3] There are no backdoors or shortcuts. But that is exactly what the Commission attempts today.

By its letter, we are apparently letting the Climate-Related Disclosures Rule stand but are withdrawing from its defense in court. This leaves other parties, including the court, in a strange and perhaps untenable situation. In effect, the majority of the Commission is crossing their fingers and rooting for the demise of this rule, while they eat popcorn on the sidelines. The court should not take the bait.

Rather, the SEC should do its job. It should defend its existing rule in litigation. If the agency chooses not to defend that rule, then it should ask the court to stay the litigation while the agency comes up with a rule that it is prepared to defend (be it by rescission or otherwise, but certainly in accordance with APA mandates). At the very least, if the court continues without the Commission’s participation, it should appoint counsel to do what the agency will not – vigorously advocate in the litigation on behalf of investors, issuers and the markets.

The Commission’s actions are inconsistent with the APA, historical practice, and they embody bad governance. We do not have license to wholesale abandon agency action simply because the now-constituted Commission would not have supported the rule when it passed. The new majority cannot now rewrite history to change the outcome of a properly held Commission vote.

To be clear, the arguments in the Commission’s Response Brief remain substantively sound. There has been no change in the relevant statutory authority; no new judicial precedent or doctrine; nor any change in the vigorous demand by the investing public. There is no new administrative record, comment file, or economic analysis. As I have said before,[4] the only change here is politics.

Today’s actions are but one symptom of a much larger problem – the Commission taking shortcuts in order to achieve preferred outcomes – this time by skirting the APA. We are now firmly in a period of policy-making through avoidance and acquiescence, rather than policy-making through open, transparent, and public processes. This approach does not benefit the markets, capital formation, or investors. In this instance, the majority of the Commission is hoping to let someone else do their dirty work.

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