In March 2024, the Securities and Exchange Commission (SEC) issued a new disclosure rule requiring SEC registrants to disclose information about climate-related effects on their business. This information includes climate risks (such as from severe weather), plans to mitigate these risks, the potential business effects of climate policies, and, for some companies, the extent of greenhouse gas emissions. Several states and corporations argued that the rule violates the major questions doctrine, and multiple challenges to the rule were consolidated in the Eighth Circuit.

In August 2024, CAC filed an amicus brief in support of the SEC. Our brief makes three main points.

First, we explain that under Supreme Court precedent the major questions doctrine applies only in “extraordinary” cases, where an agency’s breathtaking assertion of new power reflects a dubious effort to transform the fundamental nature of its authority. Supreme Court decisions have consistently demonstrated that more is needed to implicate the doctrine than economic and political significance alone; other factors must also indicate that the agency is subverting congressional intent by seeking “an unheralded power representing a transformative expansion in its regulatory authority.”

Second, we show that the rule is far from “extraordinary,” and none of the requirements for applying the major questions doctrine is satisfied in this case. The rule does not approach the magnitude of economic and political significance required to trigger the doctrine, nor does it transform the authority Congress meant to confer in the relevant statute. Under the new rule, the SEC is exercising the same power it has always exercised under the Securities Act and the Exchange Act—the power to require publicly-traded companies to disclose certain information important to the public interest and the protection of investors.

Finally, we argue that extending the major questions doctrine to cases like this would undermine traditional statutory interpretation and constitutional principles. We discuss how the major questions doctrine is in tension with textualism because it emphasizes pragmatic considerations outside the statutory text. We also explain that the Constitution’s original public meaning does not support the premise underlying the doctrine: the Founders had no qualms about directing the executive branch to handle major policy questions, and history does not suggest that Congress must speak in any particular manner to do so. In addition, overuse of the major questions doctrine would undermine the separation of powers and thrust the courts beyond their proper role in interpreting the law.

Because the rule does not meet the high standard the Supreme Court has prescribed for applying the major questions doctrine, and because applying the doctrine more widely would exacerbate its tensions with textualism, the Constitution’s original meaning, and the separation of powers, the Eighth Circuit should decline to apply the doctrine and should uphold the SEC’s rule.