Politico’s Morning Money highlighted a new letter from 5 administrative law scholars, who explain how a Section 956 incentive-based executive compensation rule could be finalized without starting from scratch.
Author: Will Dobbs-Allsopp
American Banker: Advocates urge agencies to finish — not start over — pay-clawback rule
Several progressive groups are urging financial regulators to finish the Dodd-Frank executive compensation rule, which would give the Federal Deposit Insurance Corp. the ability to claw back the compensation of some failed-bank executives — a growing priority for the Biden administration.
PRESS RELEASE: Governing for Impact Issues Memo Defending CFTC’s Climate-Related Rulemaking Authority
Legal analysis refutes claims that climate-risk rulemaking from the Commodity Futures Trading Commission would violate major questions doctrine
WASHINGTON, DC — Today, Governing for Impact (GFI) published a legal analysis defending the Commodity Futures Trading Commission’s (CFTC) authority to address climate-related financial risk. The CFTC is one of several regulatory agencies taking up President Biden’s call to incorporate the impacts of climate change into its rulemakings – and while the agency has yet to issue any new initiatives, opponents are already arguing that new rules on climate risk would violate the major questions doctrine. In its memo, GFI rebuts these claims.
“Congress has charged the CFTC with safeguarding the stability of derivatives markets, including from the risks posed by a warming planet,” said Rachael Klarman, Executive Director at GFI. “Our analysis shows that incorporating climate risk considerations into future rulemaking efforts would not implicate the major questions doctrine. We hope this insight encourages the agency to continue pursuing prudent, lawful steps to limit financial risk amid our rapidly-changing climate.”
The CFTC is responsible for regulating U.S. derivatives markets. In June 2022, the CFTC released a Request for Information (RFI) to seek public comment on all aspects of climate-related financial risk. While the agency has yet to issue any climate rule, critics – including Republicans attorneys general from 21 states – argue that any action to address climate-related risk would violate the major questions doctrine. The major questions doctrine was recently articulated in the Supreme Court’s 2022 decision West Virginia v. EPA, and has since been used to challenge numerous administration actions, including student debt relief.
In its analysis, GFI finds that critics of potential CTFC action have either misconstrued the major questions doctrine or applied it without rigor. The attorneys general inaccurately measure “economic significance” under the MQD, for example, and incorrectly claim that Congress has weighed in on the question of CTFC climate regulation. Ultimately, GFI’s analysis shows that taking action to ensure the safety of financial markets amidst a changing climate, in addition to being a prudent step, is well within the agency’s authority.
To read the full CTFC memo, please see here. For GFI’s comprehensive analysis of the major questions doctrine, please see here.
About Governing for Impact
Governing for Impact (GFI) is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/
Politico Morning Money: Advocates hit back at state threats to CFTC climate agenda
Politico’s Morning Money blurbed GFI’s new memo, which rebuts suggestions that the Major Questions Doctrine will apply to any actions that follow from the CFTC’s climate risk RFI.
Bloomberg Law: Requiring Climate Disclosure From Federal Contractors Is Legal
Industry groups and their allies claim that requiring large federal contractors to disclose their climate emissions is unlawful. Governing for Impact explains why we disagree in a piece for Bloomberg Law.
Notice & Comment: An Alternative Justification for Debt Relief under the HEROES Act
When the Biden administration’s student debt relief plan comes before the Supreme Court next month, it could benefit from an unlikely ally: inflation.
Washington Monthly: The Republicans Are Coming After Biden’s Student Debt Relief Plan
Yesterday, the first legal challenge was filed to kill the measure, but the administration is on solid legal ground.