Regulatory and Legal Reform

As the Securities and Exchange Commission considers a prescriptive rule that imposes significant and burdensome climate-related disclosure obligations on public companies, the NAM is pushing back. It is fighting for critical changes that will support manufacturers’ leadership on climate change.

The background: Manufacturers have long been leaders on climate solutions, working to create the technologies and processes needed to combat climate change while also providing material information about their climate-related efforts to investors.

• But a recent rule proposed by the SEC would mandate that companies, large and small, report reams of complex climate-related information, even when that information may not have any impact on their financial performance or operations. 

The rule: The proposed rule, which the SEC released in March, would require qualitative descriptions of companies’ climate-related risks and strategies as well as quantitative reporting of their greenhouse gas emissions and any climate-related impacts on their financial statements.

• The result would be an unworkable framework that does not align with current practices—imposing an enormous burden on manufacturers across the country.
• Additional information can be found about the rule here and about the NAM’s engagement with the SEC on climate disclosures here.

The response: The NAM has laid out a series of necessary changes that the SEC must make to reduce the compliance costs and liability risks associated with the rule’s requirements. Our recommendations will align the rule more closely with current climate reporting practices—decreasing burdens on public companies and increasing information utility for investors. Specifically, the NAM is calling on the SEC to:

• Delay annual GHG emissions reporting, granting manufacturers time to collect and verify data for a midyear report (rather than the proposed February deadline).
• Strike disclosure of Scope 3 emissions, which requires tracking emissions data through the supply chain. While some manufacturers are already working to understand these emissions, the data collection, estimation and reporting methodologies are still evolving. At a minimum, the SEC should provide more flexibility for companies subject to the Scope 3 requirement.
• Rescind accounting changes that would require climate impact analyses of companies’ consolidated financial statements on a line-by-line basis.
• Adjust the climate-related risk disclosures and Scope 1 and Scope 2 emissions reporting requirements to make the provisions less prescriptive and more aligned with existing company practices.
• Fine-tune the guidelines for reporting on climate-related goals to avoid penalizing companies that set ambitious targets.
• Remove requirements that companies disclose competitively sensitive information about the internal tools they use to understand and plan for climate risks, scenarios and activities.

The last word: “The SEC’s climate rule as written would be harmful for both large and small manufacturers and unhelpful for investors,” said NAM Senior Director of Tax and Domestic Economic Policy Charles Crain. “The NAM is committed to supporting our members in their efforts to combat climate change and inform investors about this critical work, and the recommendations we’ve offered present an important step toward that goal.”

The NAM Legal Center stood up for manufacturers in federal court this week, arguing that the Securities and Exchange Commission unlawfully suspended a rule governing proxy advisory firms.

A quick refresher: Proxy advisory firms advise institutional investors, like retirement fund managers, on how to vote on the policies of public companies in which the funds invest. This gives the firms significant power over public companies.

The fight: The NAM secured a significant victory in 2020 when the SEC finalized a rule increasing oversight of proxy advisory firms, which had long operated without SEC oversight.

• Manufacturers strongly supported the 2020 rule, which was designed to increase transparency, highlight conflicts of interest and provide accurate and decision-useful information to investors.
• At the beginning of the Biden administration, however, the SEC’s new leadership announced that it would not enforce the rule—without engaging in notice-and-comment rulemaking, a clear violation of administrative law.

Our move: Shortly after the SEC announced it wouldn’t enforce the 2020 rule, the NAM Legal Center filed a challenge to prevent the agency from abdicating its responsibilities. Put simply, a new administration cannot set aside lawfully promulgated rules that it happens to disagree with—and the NAM is standing up for that principle in court.

Our case: Arguing before the U.S. District Court for the Western District of Texas this week, the NAM made clear that the SEC acted unlawfully by suspending the compliance date of the proxy firm rule indefinitely without going through the required public notice-and-comment process to amend or repeal it.

• The SEC, in turn, argued that the agency hasn’t technically suspended the rule, but rather that SEC staff has made a nonbinding and “informal” recommendation not to enforce it—an action that has the same effect as an official suspension and one which the SEC’s own lawyers have described as providing “relief” to proxy firms.

Our take: “The SEC is attempting to end-run its legal obligation to enforce this rule,” said NAM Deputy General Counsel for Litigation Erica Klenicki. “We are in court fighting for manufacturers and their investors across the United States, who deserve protection from the outsized influence of proxy firms and who depend on the SEC, and all federal agencies, to adhere to the rule of law.” 

Policymakers can help alleviate the pain Americans are feeling at the pump and elsewhere—but by increasing domestic energy production, not through ill-conceived legislation, the NAM told U.S. House leadership this week.

Missing the mark: On Thursday, the House narrowly approved a measure that “gives the President the power to issue a declaration making it unlawful for energy companies to increase prices that are ‘unconsciously excessive,’ and authorizes the FTC to enforce those violating the act,” according to CNN.

• “[M]anufacturers oppose H.R. 7688, the Consumer Fuel Price Gouging Prevention Act; it misses the mark,” NAM Vice President of Energy and Resources Policy Rachel Jones wrote to the House leaders on Thursday. She added that price gouging is already illegal in most states and comes under Federal Trade Commission investigation.
• The new measure “does nothing to address the real drivers of rising energy costs and only adds additional regulatory red tape that could drive prices even higher,” Jones continued.

What will work: Instead, legislators should focus on increasing production of energy here at home, which will lower inflation and pump prices, as well as make the U.S. more competitive globally, Jones wrote.

“That starts with opening our diverse resources on federal lands, approving responsible exploration and production, supporting sustainable permitting and quickly building out more energy infrastructure.”

Policymakers can help alleviate the pain Americans are feeling at the pump and elsewhere—but by increasing domestic energy production, not through ill-conceived legislation, the NAM told U.S. House leadership this week.

Missing the mark: On Thursday, the House narrowly approved a measure that “gives the President the power to issue a declaration making it unlawful for energy companies to increase prices that are ‘unconsciously excessive,’ and authorizes the FTC to enforce those violating the act,” according to CNN.

• “[M]anufacturers oppose H.R. 7688, the Consumer Fuel Price Gouging Prevention Act; it misses the mark,” NAM Vice President of Energy and Resources Policy Rachel Jones wrote to the House leadership on Thursday. She added that price gouging is already illegal in most states and comes under Federal Trade Commission investigation.
• The new measure “does nothing to address the real drivers of rising energy costs and only adds additional regulatory red tape that could drive prices even higher,” Jones continued.

What will work: Instead, legislators should focus on increasing production of energy here at home, which will lower inflation and pump prices, as well as make the U.S. more competitive globally, Jones wrote.

• “That starts with opening our diverse resources on federal lands, approving responsible exploration and production, supporting sustainable permitting and quickly building out more energy infrastructure.”

As the U.S. Securities and Exchange Commission works to finalize a new rule requiring climate disclosures by public companies, the NAM is mobilizing to defend manufacturers.

The background: Manufacturers have long been leaders on climate solutions, working to create the products and technologies necessary to face the challenge of climate change.

• Manufacturers also regularly provide climate-related information to their investors, including via corporate sustainability reports, third-party reporting frameworks and SEC filings.
• At the beginning of the Biden administration, however, the SEC made clear that it was interested in creating a rule to enhance and standardize these disclosures.
• In the months since, the commission has taken steps toward that goal—and the NAM has stepped up to protect manufacturers.

In March 2021, the SEC issued a request for information on climate disclosures. The NAM responded, urging the SEC to adopt a flexible, principles-based framework that allows companies to provide investors with material information about climate risks in a consistent and comparable manner.

In September, the SEC’s Division of Corporation Finance issued new guidance calling into question companies’ existing climate disclosure practices—including the common practice of supplementing SEC filings with a sustainability or corporate social responsibility report.

• The NAM pushed back against the guidance, cautioning the division against setting new standards without a formal rulemaking process.

In October, the division released guidance drastically limiting the ability of companies to exclude climate-related shareholder proposals from the annual proxy ballot—even if those proposals are unrelated to a business’s operations.

• The NAM pushed back, emphasizing the importance of company-specific decisions for protecting manufacturers and their long-term shareholders.

The new rule: The SEC released a proposed rule in March that would significantly expand public companies’ climate disclosure obligations.

• First, the rule would require qualitative descriptions of companies’ climate-related risks and any efforts to respond to those risks.
• It also would require quantitative reporting of companies’ greenhouse gas emissions and institute a new mandate that companies conduct quantitative climate impact analysis within their consolidated financial statements.
• You can read more about the specifics of the rule here.

NAM in action: The NAM has spent the past several months connecting with manufacturers across the country to understand the real-world impact of the SEC’s proposal.

• Through a range of webinars, listening sessions and roundtables, we have been able to explain the proposed rule, gather vital feedback and map out the way forward.

What’s next: The NAM intends to provide comments to the SEC in June, highlighting provisions within the proposed rule that are impractical, costly, overly prescriptive, confusing for investors or not reflective of current climate disclosure practices.

• The NAM will call on the SEC to make targeted changes to its proposal to increase flexibility, focus on material information for investors and reduce costs, burdens and liability for companies.

What we’re saying: “Manufacturers are the leaders in America’s fight against climate change—and in order to continue that work, we need climate disclosure practices that support sustainability, rather than increasing costs for companies and confusing investors,” said NAM Senior Director of Tax and Domestic Economic Policy Charles Crain.

• “Any SEC climate disclosures rule needs to be less prescriptive, more flexible and solely focused on materiality in order to accurately reflect current practices.”
• “The bottom line is that a climate disclosures rule can’t just sound good; it has to actually work in the real world.”

The U.S. and its allies continue to apply sanctions and other measures against Russia in response to the country’s war in Ukraine. The sanctions specifically target Russian oil, corporate services within Russia and Russian manufacturing.

New U.S. sanctions: Recently, the U.S. announced new actions designed to punish Russia. The new sanctions will take effect in a variety of areas, including: 

• Industry: The US announced new sanctions on wood products, industrial engines, boilers, motors, fans and ventilation equipment, bulldozers and other items with industrial uses.
• Visas: The U.S. has placed visa restrictions on 2,600 Russian and Belarusian officials and created a new policy that restricts visas for Russian military officials and authorities.
• Nuclear licenses: The U.S. Nuclear Regulatory Commission suspended licenses for exports of nuclear material to Russia.
• Key services: The U.S. cut off Russian access to U.S. accounting, management consulting and trust and corporate formation services.

 U.S. allies and partners have also imposed additional sanctions:

• G7 countries: The G7 committed to phasing out or banning Russian oil imports while also working together to ensure that global energy supply remains stable.
• European Union: As part of its sixth package of sanctions against Russia, the EU will phase out Russian crude oil within six months and refined oil products by the end of 2022. The EU also committed to removing Sberbank and two other Russian banks from the SWIFT system and banning the use of European accounting and consulting services by Russian companies.
• United Kingdom: The UK announced new sanctions on Russia and Belarus targeting 1.7 billion euros worth of trade. Among the specific targets are Russia’s manufacturing and heavy machinery industries.

The NAM’s actions: On Friday, representatives from the U.S. Department of Commerce joined the NAM’s weekly Trade Forum for a discussion with NAM member companies on the U.S. response to Russia’s unlawful invasion of Ukraine. The discussion focused on the implications for U.S. exporters and other businesses, as well as U.S. government resources that can help NAM members stay informed.

• “Last week’s special meeting with the Commerce Department was a vital opportunity for manufacturers to underscore our support for efforts by the Biden administration and bipartisan congressional leaders to hold Russia accountable and bring peace to Ukraine,” said Ken Monahan, Vice President of International Economic Affairs.
• “As the NAM Board of Directors declared in a resolution approved unanimously on March 8, manufacturers stand with the people of Ukraine, and our industry is committed to sustaining and safeguarding democracy and democratic institutions not only here at home, but also abroad.”

A new overtime rule from the U.S. Department of Labor is likely to change some of the existing rule’s white-collar exemptions. NAM Vice President of Infrastructure, Innovation and Human Resources Policy Robyn Boerstling joined us to explain what’s happening.

The background: The overtime rule, part of the Fair Labor Standards Act, dictates that employees must receive overtime pay of at least time and a half for hours worked over 40 in a workweek. It contains exemptions for white-collar workers based on their salaries and duties. If an employee makes a minimum amount of money or is classified as an executive, administrator or professional, they are exempt from overtime pay.

• “The NAM has provided comments over the years to the Department of Labor and the Wage and Hour Division concerning the exemptions from Fair Labor Standards Act minimum wage and overtime requirements for certain executive, administrative, professional, outside sales and computer employees,” said NAM Vice President of Infrastructure, Innovation and Human Resources Policy Robyn Boerstling. “Manufacturing employees, on average, earn $92,832 in pay and benefits.”

The new action: A new overtime rule is expected soon, and employment law attorneys expect the U.S. Department of Labor to recommend higher salary thresholds for the rule’s white-collar exemptions.

What it means: A new overtime rule that raises salary thresholds for white-collar exemptions would make more employees eligible for overtime pay and potentially cause challenges for employers and even those employees who have worked to advance themselves away from hourly jobs and into salaried company positions. The current salary threshold is $35,568 per year.

Our take: Boerstling made the case directly to the Department of Labor during an April public listening session. “The NAM urges caution in any effort to expand overtime exemptions as manufacturers believe adjustments would be disruptive in a challenging economic and workforce environment,” she said.

• “The manufacturing workforce has tremendous autonomy and latitude in this labor market to address pay and compensation issues directly with their employers.”

Next steps: The NAM continues to work toward a regulatory solution but could have to take legal action to protect employers and manufacturers across the country. Check out the NAM Legal Center to learn how we are working to support our members nationwide.

 The last word: “We think that any rulemaking that is being prepared for public release on overtime exemptions for certain white-collar workers should be paused and reconsidered until a later time when supply chain and inflationary challenges have subsided,” said Boerstling.

As the House and Senate gear up for key trade hearings this week, manufacturers are watching with great concern a purported compromise between the U.S., EU, South Africa and India that would waive intellectual property rights for COVID-19 vaccines, according to POLITICO EU (subscription).

The background: In October 2020, India and South Africa tabled a proposal to waive IP rights for a broad array of COVID-19 preventions and treatments, including vaccines. Although the U.S. Trade Representative in May 2021 announced support for a waiver for COVID-19 vaccines, member states have remained divided on the proposal, with European governments and a range of American, European and other voices opposing the waiver, saying it is problematic and ineffective.

The latest: This week, members of the two key congressional committees—the House Committee on Ways and Means (Wednesday) and the Senate Finance Committee (Thursday)—will question U.S. Trade Representative Katherine Tai on the so-called Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver among discussion on other trade priorities.

• Earlier this month, Ambassador Tai’s office confirmed U.S. agreement to the broad compromise, though not the specific text. The purported text “states that a country wouldn’t need to try to secure authorization from the holder of the patent before undertaking this process. Rather than being limited to compulsory licensing, it ‘includes other acts, such as executive orders, emergency decrees and judicial or administrative orders.’ It would also bundle together all patents necessary to produce a product,” according to POLITICO.
• The NAM notes that the purported text could be used to waive not just critical COVID-19-related patents but critical manufacturing-production technologies in general. This allowance could hit a broad swath of manufacturers.
• Congressional voices ramped up almost immediately after the announcement: Sens. Thom Tillis (R-NC), Tom Cotton (R-AR) and Marsha Blackburn (R-TN) urged Commerce Secretary Gina Raimondo to “take all steps possible … to reverse Ambassador Tai’s disastrous decision to enter into this agreement.” The waiver, they said, would “destroy high-paying American jobs” and “enable any company or government—including hostile actors like China and Russia—to simply steal cutting-edge American technology.”

The NAM says: The proposed waiver, which still requires agreement from EU member states and World Trade Organization member countries more broadly, would not solve the critical manufacturing and supply chain challenges—and that the critical challenge now is not vaccine supply, but distribution and demand.

• The kind of innovation that created the coronavirus vaccines “is a fundamental American value and has been not only a core of our response to this pandemic, but also the foundation of our ability to create new health products and solutions to respond quickly to future health emergencies,” said NAM Vice President of International Economic Affairs Ken Monahan.
• Waiving property rights for innovative products would harm both U.S. technology leadership and the well-paying jobs it provides, he said.

Instead of a waiver of critical intellectual property, Monahan called for “effective, practical broadly supported initiatives suited to best fight COVID-19 now, including stronger coordination to tackle these bottlenecks and facilitate trade in health products.”

The U.S. Securities and Exchange Commission has released a rule that would require public companies to make disclosures about their greenhouse gas emissions, climate-related financial metrics and climate-related risks.

The background: Since the early days of the Biden administration, the SEC has said that investors need “consistent, comparable and decision-useful information” about public companies’ climate-related risks. SEC Commissioner Allison Lee, a longtime champion of climate disclosures, called yesterday’s announcement “a watershed moment for investors and financial markets.”

The rule: The proposed rule would institute a wide range of new climate disclosure obligations for publicly traded companies.

• GHG reporting: All companies would be required to report Scope 1 and Scope 2 greenhouse gas emissions—those generated directly by a company’s operations or indirectly by a company’s energy usage. If “material” to investors, companies would also have to report their Scope 3 emissions—those resulting from upstream and downstream activities in their value chain.
• Financial metrics: Companies would be required to analyze climate impacts on their existing financial statement line items (like revenues, cash flow and capital expenses).
• Climate risk disclosures: This set of disclosures involves companies’ assessment of their “physical risks” (like fires and floods) and “transition risks” (like climate regulations or new green business models) related to climate change. Businesses would have to evaluate these risks and then disclose their potential impact as well as what steps the company is taking to mitigate them.
• Targets and goals: Many companies set public goals related to greenhouse gas emissions, water usage and the like. Under the SEC’s rule, companies would have to report information on how these goals are set, tracked and accomplished.

The SEC hopes to finalize its proposed rule by the end of this year, which means the largest companies would have to comply as of their FY2023 filings (submitted in early 2024).

Our action: Protecting manufacturers and their shareholders as the SEC works to mandate climate disclosures is a top NAM priority. NAM members can learn more about the SEC’s climate rule during our March 29 webinar, which you can register for here. We will be providing comment on the SEC’s proposal, and manufacturers are encouraged to share their feedback with NAM Senior Director of Tax and Domestic Economic Policy Charles Crain.

The last word: “Manufacturers support key disclosures related to publicly traded companies’ climate strategies, as this information can help shareholders make informed decisions,” said NAM President and CEO Jay Timmons.

“However, broad, sweeping disclosures could be counterproductive—requiring manufacturers to waste time and resources reporting irrelevant information that will not be decision-useful for shareholders. The SEC should focus on requiring disclosure of material information, and the NAM looks forward to working with the SEC to ensure that its proposed climate reporting rule enables smart, company-specific disclosures that are tailored and targeted.”

Under the guise of lowering gas prices, Democratic leadership in the House and Senate is ramping up legislation-creation efforts and railing against oil and gas companies, according to POLITICO Pro (subscription), The Wall Street Journal (subscription), E&E News (subscription), Punchbowl News, CBS News and Bloomberg (subscription).

What’s happening: In fact, gas prices are dramatically on the rise owing to a combination of factors, including lowered U.S. production, the same supply chain issues that have disrupted the shipment of other goods, limited production by OPEC countries, continued fallout from cyberattacks and Hurricane Ida, a shortage of tanker drivers and more, according to CBS News.

• But the situation is neither as black and white nor as predictable as President Biden would have it.
• “Individual retailers set gas prices based on what they expect their future fuel deliveries to cost,” reads the Journal editorial. “But they have no clue right now due to all of the global uncertainty. Oil prices have plunged this past week in part because the United Arab Emirates said it would urge OPEC to pump more. But the cartel might not.”

Accusation from the Senate: “‘Over the past few days, oil prices have actually been decreasing, but the price of gas at the pump has not,’ Senate Majority Leader Chuck Schumer said Wednesday,” according to the POLITICO Pro piece.

The House, too: Rep. Frank Pallone (D-NJ), chairman of the House Energy and Commerce Committee, this week asked representatives from six oil companies to testify before his committee about why they were prioritizing “their own profits” by keeping gas prices “artificially high,” according to POLITICO Pro.

Democrats’ tax ideas: Congressional Democratic leadership has floated gas price-reduction suggestions, including the following:

• Gas tax “holiday”: The White House recently weighed in on this proposal, which would temporarily eliminate the 18.4-cent-per-gallon federal gas tax that funds infrastructure building as a means of lowering costs to consumers.
• Lease cancellation: “There’s also a proposal floating around Democratic leadership circles to enact legislation canceling oil companies’ federal leases unless they’re actively drilling,” according to the Punchbowl News article. “One Democratic source called this ‘use it or lose it.’”
• “Windfall profits” tax: Rep. Peter DeFazio (D-OR), chairman of the House Transportation and Infrastructure Committee, is pushing for an idea similar to the one floated earlier this month by Sens. Sheldon Whitehouse (D-RI) and Elizabeth Warren (D-MA) to enact a per-barrel tax on oil and gas companies. The Whitehouse tax would be equal to 50% of the difference between the current Brent crude price and the average crude price from 2015 to 2019, according to the Bloomberg piece. (Read the NAM’s response to that proposal here.)

But some Democrats aren’t so naive: “Is there normally a lag between a change in [crude oil] price and the price at the pump? Yes. The energy production system is complex and has many stages in the chain, and the volatility of the price per barrel has been huge in recent weeks,” Sen. Chris Coons (D-DE), who is close to President Biden, told POLITICO.

• Senate Energy and Natural Resources Committee Chairman Joe Manchin (D-WV) also expressed skepticism according to E&E News.
• “I have no problem bringing [oil executives] in to basically explain how the process works…we can all understand it a little better, rather than beating people up who are expected to provide the energy we need,” Sen. Manchin said Wednesday.

The Journal’s take: “President Biden is adopting Donald Trump’s habit of venting his political frustrations on Twitter,” according to a Wall Street Journal editorial this week. “‘Oil prices are decreasing, gas prices should too,’ Mr. Biden tweeted Wednesday. ‘Oil and gas companies shouldn’t pad their profits at the expense of hardworking Americans.’ Sorry, Mr. President. There’s no vast industry conspiracy to raise gasoline prices.”

The NAM says: “Americans are tired of partisan grandstanding and pass-the-buck politics,” said NAM Vice President of Energy and Resources Policy Rachel Jones. “Each of these ideas might look a little different, but they would all have the same result, and none of them would help with inflation.

• “Demonizing the very people we need to produce more domestic energy is a dangerous recipe for shipping jobs overseas and making dictators stronger. And manufacturers know that in the end, these bogus ‘make-someone-else-pay’ schemes always come back to haunt us. When we sacrifice our energy security, prices go up, global emissions go up, China gets stronger, and we become weaker.
• “Instead, we need to remove any roadblocks in America to increasing domestic energy supplies and building out our energy infrastructure, which, by the way, includes renewables as well as domestic oil and gas exploration, nuclear, biomass, hydro and other new energy sources. Now is not the time to fight about favorites; it’s time to stand strong behind all energy options and focus on our drive to sustainability and energy security.”

Take Action: Tell Congress to support North American energy security by CLICKING HERE.