Dive Brief:
- The Securities and Exchange Commission has asked the Eighth Circuit Court of Appeals not to pause the implementation agency’s final climate risk disclosure rule, according to a Wednesday filing, after Liberty Energy and Nomad Proppant Services asked to reinstate an administrative stay ordered by another circuit on Tuesday.
- The SEC told the federal court that Liberty Energy — whose case in the Fifth Circuit of Appeals previously led the rule to be temporarily halted pending review — has “identified no imminent harm” to stop implementation of the rule. The stay was dissolved when all the cases were consolidated into the Eighth Circuit last week.
- The agency said Liberty Energy and Nomad have neither followed correct procedures for requesting an administrative stay of a regulation nor proven that there is a need for such emergency relief, according to its filing.
Dive Insight:
In addition to having the stay dissolved upon venue consolidation, Liberty Energy’s case has also been disaggregated from petitions submitted by the states of Louisiana, Texas and Mississippi; the Texas Alliance of Energy Producers and Domestic Energy Producers Alliance; and the U.S. Chamber of Commerce, Longview Chamber of Commerce and Texas Association of Business. All of the cases were originally submitted to the Fifth Circuit and were combined prior to the venue lottery.
Liberty Energy — a public Colorado-based oilfield and natural gas services company — and Nomad Proppant Services — a frac and services company — filed a motion with the Eighth Circuit to have its motion for administrative stay reviewed again. The companies are also asking the court to rely on its prior briefing to decide the stay, arguing that the relevant case law is the same in both circuits and not requiring a new briefing would aid efficiency and expediency.
However, the SEC said the fossil fuel services companies did not go through the proper procedures to request a stay. The agency said under Federal Rules of Appellate Procedure, challengers of an agency rule “must ordinarily” first go to the agency to request a stay, or prove that doing so “would be impractical,” according to its March 27 filing. Additionally, the agency reiterated its belief that the companies have not shown any evidence that an emergency stay is needed.
“Nothing in [Liberty Energy and Nomad’s] letter, nor in any of their previous briefing, identifies actions they must take before the conclusion of the ordinary process for seeking a stay,” SEC Appellate Counsel John Rady wrote. “The Final Rules do not require Liberty Energy to make any disclosures until March 2026 at the earliest. And these petitioners point to no immediate actions that they must take in preparation for that deadline.”
Rady also noted that shortly after Liberty Energy’s filing, the Chamber of Commerce also filed for an emergency stay order March 26. The SEC said that, rather than have the court weigh in on a briefing filed to another court from one part of the consolidated case, it would like the two parties to be subject to a re-briefing, so their orders could be considered together. The agency said if the court doesn’t suggest a re-briefing, it should deny the request for a stay and keep the rule in place while the court hears its challenges.
The SEC faces nine total petitions to its final climate disclosure rule, which eliminated proposed scope 3 emissions reporting requirements and limited its requirements to scope 1 and 2 emissions to large accelerated filers and accelerated filers.