West Virginia Attorney General Patrick Morrisey is leading a 21-state coalition in filing formal comments regarding any Commodity Futures Trading Commission (CFTC) initiative that would require derivatives markets to make policy changes in the name of climate change.
According to its website, the CFTC “protects the public from fraud, manipulation, and abusive practices related to the sale of commodity and financial futures and options…”
CFTC recently opened a request for comment to better inform the commission’s “understanding and oversight of climate-related financial risk as pertinent to the derivatives markets and underlying commodities market.”
“Behind that agency jargon is the truth: the CFTC is poised to pursue the same misguided agenda that other regulators have embraced to advance Biden’s far left woke climate change agenda,” Attorney General Morrisey said. “If the CFTC moves ahead with the policies hinted in this request, it would provide for coordinated discrimination against areas of the country like West Virginia that depend most heavily on fossil fuels for energy. West Virginia will vigorously participate in the rulemaking process, and, if necessary, will go to court to defend against any regulatory overreach by the CFTC in the name of climate disclosures.”
The coalition outlined three basic reasons why any CFTC effort would be problematic and unlawful. First, under the major questions doctrine and the plain language of the CFTC’s enabling statute, the commission would be acting beyond its authority. Second, a disclosure scheme would create substantial First Amendment concerns given the compelled speech that it would entail. And third, courts would find climate-related action by the CFTC to be arbitrary and capricious.
The major questions doctrine was confirmed by the U.S. Supreme Court in June when it decided West Virginia v EPA, which marked the most consequential development in environmental law since Attorney General Morrisey won a historic and unprecedented stay of the Obama-era Clean Power Plan at the Supreme Court in February 2016.
The Supreme Court ruling in favor of West Virginia confirmed that Congress—not a federal administrative agency—has the power to decide major issues of the day.
“This clearly is another attempt from the Biden administration to circumvent Congress to advance its radical partisan strategy to target the fossil fuel industry,” Attorney General Morrisey said. “The Biden administration wants to transform these bureaucratic agencies into climate police with a mission of changing every facet of American life to suit their liberal agenda.”
Joining West Virginia in the letter are Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia and Wyoming.
Read a copy of the coalition’s letter at: https://bit.ly/3MlcwHg.