A Modest Proposal: SEC Edition

The SEC’s Power Grab Attempt: A Powerful Dissent

From MasterResource

By Richard W. Fulmer — March 25, 2022

“I offer a modest counter proposal: Require all regulatory agencies to provide Scope 1, 2, and 3 disclosures for their day-to-day operations and for all proposed regulatory changes and to make those disclosures public.

On March 21 of this year, the Securities and Exchange Commission (SEC) issued a press release announcing:

proposed rule changes that would require registrants to include certain climate-related disclosures in their registration statements and periodic reports, including information about climate-related risks that are reasonably likely to have a material impact on their business, results of operations, or financial condition, and certain climate-related financial statement metrics in a note to their audited financial statements.

Required information would include Scope 1, 2, and 3 emission disclosures, which (respectively) cover a company’s own greenhouse gas (GHG) emissions; emissions by the company’s energy provider(s); and emissions by the company’s suppliers, employees, and customers.

As SEC Chair Gary Gensler explains in one of his Office Hours video shorts, the goal is to allow investors to weigh claims of environmental responsibility made by companies and market funds.

SEC’s Peirce’s Free Market Rebuttal

In her response to the announcement, SEC Commissioner Hester M. Peirce offered objections to the proposal, citing its lack of:

  • A credible rationale for such a prescriptive framework when our existing disclosure requirements already capture material risks relating to climate change;
  • materiality limitation;
  • A compelling explanation of how the proposal will generate comparable, consistent, and reliable disclosures;
  • An adequate statutory basis for the proposal;
  • A reasonable estimate of costs to companies; and
  • An honest reckoning with the consequences to investors, the economy, and this agency.  

The following are highlights of Pierce’s statement (emphasis added):

“The proposal turns the disclosure regime on its head.  Current SEC disclosure mandates are intended to provide investors with an accurate picture of the company’s present and prospective performance through managers’ own eyes.…  The proposal, by contrast, tells corporate managers how regulators, doing the bidding of an array of non-investor stakeholders, expect them to run their companies.  It identifies a set of risks and opportunities—some perhaps real, others clearly theoretical—that managers should be considering and even suggests specific ways to mitigate those risks.  It forces investors to view companies through the eyes of a vocal set of stakeholders, for whom a company’s climate reputation is of equal or greater importance than a company’s financial performance.…”

“[The proposal] establishes a disclosure framework based, in large part, on the Task Force on Climate-Related Financial Disclosures (“TCFD”) Framework and the Greenhouse Gas Protocol.  It requires disclosure of: climate-related risks; climate-related effects on strategy, business model, and outlook; board and management oversight of climate-related issues; processes for identifying, assessing, and managing climate risks; plans for transition; financial statement metrics related to climate; greenhouse gas (“GHG”) emissions; and climate targets and goals.”

“Under the proposal, a company, unless it is a smaller reporting company, would have to disclose Scope 3 emissions, but only if the company has set an emissions reduction target that includes Scope 3 emissions or if those emissions are material.  The materiality limitation is not especially helpful because the Commission suggests that such emissions generally are material,”

“The proposal does not just demand information about the company making the disclosures; it also directs companies to speculate about the habits of their suppliers, customers, and employees; changing climate policies, regulations, and legislation; technological innovations and adaptations; and changing weather patterns.”

“Another area where the proposal will mandate disclosure of information that appears useful but that likely will be entirely unreliable involves physical risks tied to climate change.  Establishing a causal link between physical phenomena occurring at a particular time and place and climate change is, at best, an exceedingly difficult task.  Disclosures on the physical risk side will require companies to select a climate model and adapt it to assess the effects of climate change on the specific physical locations of their operations, as well as on the locations of their suppliers and customers.  This undertaking is enormous. It will entail stacking speculation on assumptions.  It will require reliance on third-parties and an array of experts who will employ their own assumptions, speculations, and models.  How could the results of such an exercise be reliable, let alone comparable across companies or even consistent over time within the same company? “

“Required disclosures of so-called transition risks – [that is, negative impacts to the business from] ‘regulatory, technological, and market changes to address the mitigation of, or adaptation to, climate-related risks…’ Transition risk can derive from potential changes in markets, technology, law, or the more nebulous “policy,” which companies will have to analyze across multiple jurisdictions and all across their “value chains.”  These transition assessments are rooted in prophecies of coming governmental and market action, but experience teaches us that such prophecies often do not come to fruition.  Markets and technology are inherently unpredictable.  Domestic legislative efforts in this context have failed for decades, and international agreements, like the Paris Accords, have seen the United States in and out and back in again.  How could this proposal thus elicit comparable, consistent, and reliable disclosure on these topics?”

“It is important to remember… that noble intentions, once baked into complex regulatory plans, often have ignoble results.  This risk is considerably heightened when the regulatory complexity is designed to push capital allocation toward politically and socially favored ends, and when the regulators designing the framework have no expertise in capital allocation, political and social insight, or the science used to justify these favored ends.  This proposal, developed under these circumstances, will hurt investors, the economy, and this agency. 

“Investors will not be the only ones to suffer from the diversion of attention from financial to climate objectives.  The whole economy, and all of the consumers and producers it sustains, could also be hurt.  First, the proposal is likely counterproductive to the important concerns around climate change.  Attempting to drive long-term capital flows to the right companies ex ante is a fool’s errand because we simply do not know what effective climate solutions will emerge or from where.  Markets, if we let them work, are remarkably deft at solving problems of all sorts, even big problems like climate change, but they do so in incremental and surprising ways that are driven by a combination of chance, opportunity, necessity, and human ingenuity. “

“[D]riving more capital toward green investments as defined uniformly by financial regulators could fuel an asset bubble that could make the financial system more vulnerable rather than more resilient.”


The following objections can be added to Commissioner Pierce’s:

  • According to the SEC’s announcement, the comment period will be limited to “30 days after publication in the Federal Register, or 60 days after the date of issuance and publication on sec.gov, whichever period is longer.” That is a very short time for interested parties to evaluate the far-reaching impact of the requirements listed in the 534-page document.
  • Regulatory herding (e.g., “driving more capital toward green investments as defined uniformly by financial regulators”) can lead to regulatory stampedes (e.g., asset bubbles). A critical component of risk management is diversity. Requiring all a nation’s firms to define and deal with risk in a uniform manner could lead to catastrophe.
  • The SEC’s new requirements will themselves likely have a significant carbon footprint. Tens of thousands of workers with thousands of companies across the nation will expend scarce resources and energy to provide, review, and audit this information every year.
  • What is the opportunity cost of redirecting scarce resources to providing these reports and away from increasing the wealth that will better enable us to adapt to climate change?

I offer a modest counter proposal: Require all regulatory agencies to provide Scope 1, 2, and 3 disclosures for their day-to-day operations and for all proposed regulatory changes and to make those disclosures public.

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Tom Halla
March 25, 2022 2:25 pm

The notion of “stakeholders” as opposed to investors is straight out of Mussolini’s version of fascism. The Corporate State.

Reply to  Tom Halla
March 25, 2022 2:41 pm

“The bureaucracy is expanding to meet the needs of the expanding bureaucracy.”

Reply to  Tom Halla
March 25, 2022 2:46 pm

Not just only about Corona:
Uncovering the Corona Narrative
Many who have followed this coronavirus “public health crisis” and the non-sensical response provided by most of the western nations (including the USA) have been perplexed by two big questions – how was this done (in such a globally coordinated fashion), and why was it done?

“Climate Crisis” is finally part of that same narrative description

Danley Wolfe
March 25, 2022 2:43 pm

Soooo. Don’t just complain on blogs about this. Do something more meaningful. Write you congressmen and senators. Scream loudly at the top of your voice. Write letters and editorials in your local paper. Blogging on WUWT has almost next to zero effect other than make feelgood to all the retireds and semi retireds who visit this site.

Reply to  Danley Wolfe
March 25, 2022 2:54 pm

To that end, consider attending (in person or online via Zoom) the following April 14 “bipartisan discussion” on “climate solutions” and let your voice be known.


Reply to  Danley Wolfe
March 25, 2022 4:55 pm

We’ve been doing that for years, writing to politicians that is. Trouble is it’s hard to know how much gets through the gatekeepers. It’s easy for them to ignore one or two people, even if it’s regular. But if more people took the time to be proactive it would be harder for them to ignore. We know that at the very least we get under their skin.

There is so much knowledge here at the WUWT site, it’s shared with gusto every day. Maybe more of us should look up contact details of our local politicians and newspapers as Danley suggested.

Add some contact details to your list and send the best of your posts on a regular basis. Make them earn their money.

Reply to  Danley Wolfe
March 25, 2022 7:18 pm

My experience says writing to politicians achieves nothing. Most are doing what they want to or are compelled to do and nothing outside of those conditions will or can be allowed to moderate their real actions.

Joao Martins
Reply to  Danley Wolfe
March 26, 2022 6:59 am


As I was taught in high-school re the Portuguese “organic-democratic” republic (“political and administrative principles of the nation”, i.e. the corporate state, was a mandatory class under the regimes of Antonio Oliveira Salazar and Marcelo Caetano).

Rud Istvan
March 25, 2022 2:51 pm

Commented on this SEC proposal on a previous thread.Am very rusty on securities law since never practiced it. But am fairly sure this proposal goes well beyond the SEC scope established by the Securities Exchange Act of 1934. It may be in accordance with Biden’s day one EO, but it won’t pass muster in the courts where it will be challenged once finalized.

Unlike the Clean Air Act pollutant definition as ‘that which pollutes (enabling Mass v EPA), the securities law stuff is much more black and white, hard edged, clear. Necessarily so to prevent a lot of trivial litigation. The objecting commissioner proves a good starting list of all the inherent problems.

March 25, 2022 3:10 pm

The U.S. Securities and Exchange Commission is an independent agency of the United States federal government. The only sure way to rein them in is through congress by passing laws that have a veto proof majority of votes. That doesn’t seem feasible at the moment, maybe next year.
For making objecting comments during the public discussion, one could include the primary purpose of the SEC is to enforce the law against market manipulation. The proposed rules are in themselves market manipulation. The SEC does not have expertise in anything outside the market (and has shortfalls inside the market) so to include the proposed rules would be beyond the scope of their authority.

Coach Springer
Reply to  Brad-DXT
March 26, 2022 5:09 am

Well, exposing their porn watching habits didn’t faze them.

March 25, 2022 4:24 pm

“I offer a modest counter proposal: Require all regulatory agencies to provide Scope 1, 2, and 3 disclosures for their day-to-day operations and for all proposed regulatory changes and to make those disclosures public.“

I offer an addendum proposal:

Prior to receiving a salary increase; a requirement that all federal government employees are to provide Scope 1, 2, and 3 disclosures for their anticipated day-to-day activities and operations that occur outside of the workplace. And, said employee shall provide proof that the salary increase will not result (directly or indirectly) in an increase of ‘greenhouse’ emissions as associated with any aspect of the employee’s lifestyle. The baseline for the said employee’s ‘greenhouse’ emissions is to be calculated with a ‘no salary increase’ scenario.

March 25, 2022 6:31 pm

For example, does the SEC expect a company in the munitions value chain to estimate their Scope 3 emissions. If that company manufactures weaponry electronics (that are now being sent to Ukraine), what is their share of the final emissions outcome? And if Russia wins this conflict, will those best-intentioned contributions be allowed to offset other emissions? Seems like SEC has asymmetrical thinking here. Only considering “constructive” companies and ignoring “destructive” cases.

Eric Vieira
March 26, 2022 3:09 am

This whole nonsense red tape monster could be avoided if companies and financial institutions would hold together and just… refuse to comply, or at least lobby in the right direction. Another tactic would be lawfare, the same tactics that the left use. This would compel the regulators to prove that their policy and regulations make some kind of sense which would be, at the very least, an almost impossible task for them. But if no one resists, this will go along unchecked and it will continually get worse. An example of this is the car industry in Germany, where the Government imposed emission standards that are impossible to meet. Instead of refusing, based on solid engineering based arguments, some of them cheated, got caught and had to pay horrendous fines. Now they’re only going to produce EV’s which will probably end up in a financial disaster for them.

Frank from NoVA
Reply to  Eric Vieira
March 26, 2022 12:48 pm

‘This whole nonsense red tape monster could be avoided if companies and financial institutions would hold together and just… refuse to comply, or at least lobby in the right direction.’

What you’re asking companies to do is form a cartel. Cartels are illegal, of course, except when they form and operate under the auspices of the Federal government. Call it what you will, progressivism, corporatism, syndicalism, crony capitalism, etc., it’s government direction of privately held business, aka, fascism, and eventually it will rot out the economy.

Btw, I didn’t mention financial institutions, as these are already cartelized under the Federal Reserve System, which maintains its monopoly under legal tender laws.

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