Liberty Energy Incorporated and Nomad Proppant Services LLC decided to give it another go. Are you surprised?  In this notice of pending emergency motion, Liberty and Nomad advise the Eighth Circuit of their request for a new administrative stay and a stay pending judicial review in connection with their petition challenging the SEC’s final climate disclosure rules.  As you may remember, a petition for review of the final rules was filed by Liberty and Nomad on March 6 in the Fifth Circuit and their motion for an administrative stay was granted on March 15.  That case was just one of nine challenging the SEC’s rules in six different circuits.  Upon request of the SEC, on March 21, 2024, the Judicial Panel on Multidistrict Litigation issued a consolidation order in these cases, randomly selecting the Eighth Circuit as the court in which to consolidate these petitions. Following that consolidation order,  the Fifth Circuit ordered the transfer of Liberty’s petition to the Eighth Circuit and the dissolution of the administrative stay. (See this PubCo post.)

In their motion, Liberty and Nomad rely on their existing briefing, contending that the “relevant caselaw is the same in both the Fifth and Eighth Circuits. Supreme Court precedent controls the analysis on most issues in this case, including the major-questions doctrine, the scope of the SEC’s authority, the First Amendment, and the SEC’s failure to acknowledge its change in position.”  The SEC has been directed to file a response by the close of business tomorrow, March 27. Which way will the Eight Circuit go?

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