D.C. Circuit won't hear SEC Resource Rule case, for now

By Jessica M. Karmasek | Apr 29, 2013

WASHINGTON (Legal Newsline) -- The U.S. Court of Appeals for the District of Columbia Circuit declined Friday to hear a challenge to a rule by the Securities and Exchange Commission requiring oil and gas companies to disclose certain government payments.

Judge David S. Tatel, writing for a three-judge panel, said the court lacked the authority to hear the suit in the first instance, and dismissed the petition for lack of jurisdiction.

"Indeed, under the Administrative Procedure Act, many challenges to agency regulations are heard first in the district court and then reviewed de novo by this court," Tatel wrote in the D.C. Circuit's 16-page opinion.

"To be sure, this may not be the most efficient way to resolve such cases, and we certainly understand petitioners' desire to have these important issues addressed expeditiously. But it is

Congress's job, not ours, to determine 'the court in which judicial review of agency decisions may occur.'"

In August, the SEC adopted rules mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring resource extraction issuers to disclose certain payments made to the U.S. government or foreign governments.

The regulatory reform law directed the SEC to issue these rules requiring companies engaged in the development of oil, natural gas or minerals to disclose the information annually by filing a new form with the commission called Form SD.

The form must be filed with the SEC no later than 150 days after the end of its fiscal year.

Companies are required to comply with the new rules for fiscal years ending after Sept. 30.

The petitioners in the case -- the American Petroleum Institute, the U.S. Chamber of Commerce, the Independent Petroleum Association, and the National Foreign Trade Council -- are challenging the rule, in particular its disclosure requirements, on First Amendment grounds.

They're also challenging both the regulation and the cost-benefit analysis on statutory grounds.

The Chamber's Institute for Legal Reform owns Legal Newsline.

The D.C. Circuit said last week that because the petitioners have simultaneously filed a complaint in federal court, it need not consider transferring the petition to that court.

Read the court's full opinion here.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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