By Mark S. Nelson, J.D.
The Fifth Circuit today transferred the petition for review filed in that circuit challenging the SEC’s climate risk disclosure regulation that had prompted the court to stay the regulation to the Eighth Circuit and, at the same time, dissolved the administrative stay the court had issued. That order perhaps gives the SEC some temporary relief but under the applicable rules, the Eighth Circuit will have an opportunity to decide whether to re-instate the stay of the regulation (Liberty Energy Incorporated v. SEC, March 22, 2024).
Under 28 U.S.C. 2112(a)(4), a court can stay a matter pending the outcome of a random drawing held by the Judicial Panel on Multidistrict Litigation to designate a federal appeals court to hear multiple, consolidated petitions for review of an agency order. The transfer court may then modify, revoke, or extend the stay.
The Fifth Circuit’s order to dissolve the stay was issued per curiam but, significantly, one judge appeared to disagree with that portion of the order. A footnote to the order said, without any further explanation, that “Judge Jones believes the docket should stay as is pending transfer.”
The SEC also has provided the required notice to the Eighth Circuit that the MDL panel had designated that court to hear the consolidated petitions for review, which total nine. The petitions had been filed in the Second, Fifth, Sixth, Eighth, Eleventh, and D.C. Circuits with petitioners filing in circuits they believed most likely to rule in their favor. Although most of the petitioners are business groups, individual companies affected by the SEC’s regulation, or conservative state attorneys general, two environmental groups, believing the SEC’s final regulation fell short of what had been proposed, also filed suit in the Second and D.C. Circuits.
The case is No. 24-60109.