American Companies Can’t Sugarcoat Their Carbon Pollution Anymore

Three ways to think about the SEC’s new climate rule

By Robinson Meyer     （Word Count: 1,307)

MARCH 23, 2022

Davidy Ryder / Getty

In 1966, at the height of the Cold War, The Wall Street Journal ran an ad that made a surprising claim: Every day, the Kremlin got 12 copies of the paper delivered. The Journal wasn’t boasting that it was helping to advance the spread of communism; it was making a point: The publication’s coverage was the best guide to America’s “competitive, consumer-driven economy.” Unlike in Soviet Russia, the work of the American economy happens out in the open where everyone can see.

That openness is in part the result of regulation. Since the 1930s, the Securities and Exchange Commission has required public companies to publish certain financial information about their profits, dividends, debt, and risks. These disclosures help investors make better decisions about where to put their money, which makes the economy more efficient. (Well, at least in theory.)

On Monday, the SEC announced that it would add another layer to this set of essential disclosures, requiring companies to also release information about their climate risks. Starting next fiscal year, the country’s largest public companies—such as Walmart, Apple, Berkshire Hathaway, and ExxonMobil—must release data about their greenhouse-gas pollution, their exposure to various challenges such as sea-level rise, and any plans they have to minimize their exposure to these risks. Some companies must also publish information about their “downstream” emissions, that is, the carbon pollution from customers using their products. (These are called “Scope 3” emissions in corporate climate jargon.)

The rule is a big step, and it signals the growing importance of climate concerns in the business world: Apple, Amazon, and other tech companies already publish much of these data in their disclosures, and the country’s largest institutional investors have been clamoring for more firms to do so. Some stock-market regulators in Europe require similar disclosures.

In a sense, the federal government is requiring companies to account for their carbon in the same way that they account for their cash—and frankly the two do have a lot in common. Companies make thousands of debits and credits to the carbon system every day, just as they add to and subtract from their bank accounts. In both cases, we care most about net flow: profits and carbon footprint at the corporate level, scaling up to GDP and national emissions at the national level.

The new SEC rule is more than 500 pages long, and I haven’t read it all yet. “It’s awesome, it’s very cool, it’s overdue—and it’s also extremely boring and plain vanilla,” Ilmi Granoff, the senior director of sustainable finance at Climateworks Foundation, told me. Still, the rule is likely to stay in the news over the next few years. Only the draft rule was published Monday; the rule won’t be finalized until later this year, at which point it will face a long court fight.

So for now, I want to focus on just a few aspects of the rule.

1.)

• It takes aim at “greenwashing.” Corporate net-zero plans are growing in popularity, and they’re also … a little suspect. Bloomberg Green has found that the net-zero plans of 25 of the world’s largest companies do not actually add up to zero. Now, if a company has a net-zero plan, the new SEC rule will require it to disclose how it will get there.

• Net-zero plans are “sort of the Wild West right now,” Madison Condon, a professor at Boston University School of Law, told me. “The SEC has already started to send letters to corporations being like, Hey, you have this net-zero goal, but nothing in your capital expenditures have changed in any way. Can you explain this discrepancy, how you allegedly are changing your entire business model in the next 15 years? The new rule will help standardize these goals, making sure companies actually intend to keep the promises that they make in public.

• One of the flukes of U.S. law is that while it’s legal to lie to the public, it’s illegal to lie to investors. That’s why, when New York sued ExxonMobil a few years ago over its failure to publish its internal science on the dangers of climate change, prosecutors argued that it had defrauded its investors above all. (New York lost that case.) The SEC is now saying that when a company publishes a net-zero plan, it is making a material statement about the future of its business, and it must be as careful to tell the truth in that statement as it would be when discussing its profits and losses.

2.)

• It’s long overdue. The SEC has required companies to disclose their environmental risks as far back as the 1970s. Congress was first warned about the risks of climate change 34 years ago. And as the climate reporter Andrew Freedman at Axios has pointed out, in 2019, a Fortune 500 company—PG&E, California’s largest electricity utility—became the first to declare bankruptcy because of climate impacts. The general idea of the rule—that companies need to conduct the exercise of going through their statements, looking for climate risks that could spiral out of control—is so sensible, the fact that it only happened now is surprising. The delay reflects how long policy makers have taken to understand the destructive scale of climate change.
• And I would add that even critics of climate-minded financial regulation—a group that has, in some contexts, included myself—concede that climate-related disclosure is “anodyne.” In this often controversial arena, mandatory disclosures are some of the most widely accepted policies out there.

3.)

• It could get overturned anyway. In the hearing where the rule was unveiled yesterday, Hester Pierce, the SEC’s sole Republican commissioner, announced that she could not support the rule. She argued that it overrode the SEC’s authority, that companies already had to reveal climate risks under the SEC’s existing risk-disclosure rules, and that the new rule aimed to force companies to “do the bidding” of regulators. (She turned off her video for much of the speech, saying that it would “reduce the carbon footprint of my presentation on this platform by 96 percent.”)

• But she also previewed another argument that I suspect we will hear more of. She repeatedly implied that the SEC’s new rule ran afoul of the Supreme Court’s “major questions” doctrine, a loosely defined principle that courts should look skeptically at rules that have “vast economic or political significance.”
• Perhaps you can see the issue here. Simply dealing with climate change will require technocratic tweaks to many aspects of American law. In that way, it resembles cybersecurity or cryptocurrency—real-world shifts that could cause real damage if they’re not countenanced by our governance. Yet a faction of the American political system, particularly on the right, has decided that any climate policy is controversial, that anything touching this new risk should be taken up exclusively by Congress. Last month, a federal court ruled that the doctrine prevented the Biden administration from considering any costs of climate change when undertaking an executive action. (That decision has since been reversed.) Most important, the Supreme Court heard a separate—and potentially landmark—case last month that could essentially strip the Environmental Protection Agency of its ability to regulate carbon pollution.

• A self-perpetuating logic has infected conservative jurisprudence in America; it risks finding that any rule touching climate change cannot be promulgated, simply because of its subject matter. Given the influence that conservative judges have over the judiciary, and especially in the Supreme Court, it could soon be settled law that even a minor climate rule confronts a “major question,” fit only for lawmakers to answer. If allowed to spread, this idea will bring U.S. policy out of the realm of the real, further discredit corporate planning around energy, and push the American energy system deeper into paralysis. If you think simply disclosing risks is major, wait until they arrive.

Robinson Meyer is a staff writer at The Atlantic and the author of the newsletter The Weekly Planet.