The Securities and Exchange Commission’s (SEC’s) Climate Disclosure Rule has provoked heated controversy on many fronts. Several commenters have argued that the First Amendment precludes the SEC from demanding climate-related disclosures. This Article grapples with the unsettled state of “compelled commercial speech” doctrine, arguing that the rule’s constitutionality should be scrutinized using the prevailing rational basis test, and that even under the intermediate scrutiny test, the rule should be upheld. The SEC has proffered copious evidence of the anticipated benefits, and has narrowly tailored the rule to achieve only the interests it asserts. Nevertheless, the Commission should be prepared to proffer additional justification for certain disclosure items, such as the scope 3 emissions reporting requirement and scenario analysis recommendation, to bolster the odds of the overall regulatory scheme being upheld.

Oil companies and their agents have been actively involved in creating and propagating climate change disinformation for the past half-century. In response to this deception, more than two dozen American states and cities have sued these companies under traditional tort-based causes of action like public nuisance, fraud, negligence, and failure to warn, alleging that the companies fueled uncertainty about climate science and undercut public support for necessary climate action. Plaintiffs in these suits often struggle to establish a legal causal chain linking fossil fuel companies’ deceptive communications to incurred climate-related injuries. Thus, traditional tort-based suits may fail to provide sufficient legal pressure to dissuade oil companies from spreading misinformation that questions legitimate climate science and undercuts the need for fossil fuel regulation. Section 5 of the Federal Trade Commission Act (FTCA), and similar business and consumer fraud statutes, might provide an alternative approach to penalizing commercial climate change deception and holding corporations accountable for their dissemination of climate disinformation. This Comment argues that the Federal Trade Commission could use its authority under §5 of the FTCA as a federal tool to prohibit, discipline, and seek redress for corporate climate disinformation campaigns, as a means to hold those actors responsible for obstructing advancement of the necessary large-scale behavior change needed to mitigate the climate crisis.