Does the SEC Have Legal Authority to Adopt Climate-Change Disclosure Rules?

25 Pages Posted: 23 Aug 2021

See all articles by Andrew N. Vollmer

Andrew N. Vollmer

Mercatus Center at George Mason University

Date Written: August 19, 2021

Abstract

The Securities and Exchange Commission is planning to propose new mandatory disclosure rules on climate change without further statutory authority from Congress. The purpose of this comment is to explain that the SEC does not currently have statutory authority to adopt such disclosure rules.

When evaluated against the Supreme Court’s normal and straightforward method of determining an agency’s rulemaking power, the two main securities acts limit the SEC’s power to issue disclosure rules to specific types of information, such as the business of the company selling the securities, the management, capital structure, and financial statements. Climate-change disclosure rules would have a different subject matter and a different objective from the kind of disclosure requirements Congress permitted the SEC to write.

The need for the SEC to have explicit statutory power for climate-change disclosure rules is important to the U.S. form of self-government and the accountability of government officials to the voters. The SEC should respect the role of Congress in setting national policy and stay within the bounds of its statutory authority.

This paper was written in anticipation of the SEC, as a full commission, voting to request public comment on a climate-change disclosure proposal. It will be adapted as a comment and will be filed with the SEC shortly after that.

Keywords: SEC, rule making, Congress, climate change, statutory authority, disclosure rules, securities law, administrative law

JEL Classification: K22, K23, G18, G28

Suggested Citation

Vollmer, Andrew N., Does the SEC Have Legal Authority to Adopt Climate-Change Disclosure Rules? (August 19, 2021). Mercatus Policy Brief Series , Available at SSRN: https://ssrn.com/abstract=3908560 or http://dx.doi.org/10.2139/ssrn.3908560

Andrew N. Vollmer (Contact Author)

Mercatus Center at George Mason University ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
58
Abstract Views
284
rank
447,287
PlumX Metrics