In February, I noted that the Chamber of Commerce of the United States of America and several others filed suit in the Central District Court challenging two laws passed last year.  See As Foretold, California's New Forced Speech Laws Are Being Challenged.  SB 253 (Wiener) compels disclosure of greenhouse gas emissions and SB 261 (Stern) requires disclosure of climate-related financial risks.  I had earlier noted the constitutional infirmity of these bills.  See Was 2023 An Annus Horribilis For California Legislative Drafting?

Last week, the State of California moved to dismiss the challenge, advancing three arguments:

• The Supremacy Clause and extraterritoriality claims should be dismissed on ripeness and standing grounds (Rule 12(b)(1));
• The Supremacy Clause claim should be dismissed for failure to state a claim (Rule 12(b)(6));
• The extraterritoriality claim should be dismissed for failure to state a claim (Rule 12(b)(6)); and
• Sovereign immunity bars all claims against the California Attorney General.

It is most unfortunate that the State of California is trying to delay the inevitable adjudication of the constitutionality of the bills.  While the State argues that the plaintiffs have alleged no injury in fact because implementing rules have not yet been adopted, companies potentially subject to these laws are already devoting resources in anticipation of the possibility that they may one day be compelled to comply.  These costs are being incurred.  It is in the State's interest, moreover, to avoid unnecessary expense associated with the adoption of implementing regulations if the laws are eventually found (as I have predicted) to be unconstitutional.  It is in everyone's interest that these questions be answered sooner rather than later.  

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