Two years after an Oklahoma judge ruled the state’s 2022 Energy Discrimination Act or “anti-ESG” was unconstitutional, a ruling still on appeal with the State Supreme Court, a federal judge in Texas has made the same kind of ruling on the state’s similar law.
The Energy Discrimination Act in Oklahoma was created in response to a growing nationwide effort by financial firms to “boycott” oil and gas companies because of a green energy push at the time of the Biden administration. Oklahoma’s law was patterned after one in Texas. Legislators promptly filed HB2034 and passed it in the 2022 legislative session.
However, this week Federal District Judge Alan Albright ruled the Texas law, created in 2021, is unconstitutional. The ruling came in a challenge from the American Sustainable Business Council.
“SB 13 violates the First Amendment because it is facially overbroad. A statute is overbroad when it purports to burden only non-constitutionally protected activities, but “includes within its scope activities which are protected by the First Amendment.”
Albright also wrote: “SB 13 is thus unconstitutionally vague because (1) the statute’s definition of “boycott energy company” fails to provide a reasonable opportunity to know what conduct is prohibited and (2) the definition invites—and has in fact already led to—discriminatory enforcement.”
Oklahoma’s challenge came from a state employee who argued the law was discriminatory and in Texas, the same kind of argument was raised.
Tim Hill, President of The Alliance for Prosperity and a Secure Retirement (APSR), called the federal judge’s decision for current and future state retirees.
“Judge Albright’s thoughtful ruling will help keep politics out of public finance. We are gratified that today’s ruling puts a stop to the unconstitutional effort in Texas to include non-fiduciary issues when deciding how to invest public pension funds.”
His organization has led some of the national effort to protect retirees from the politicization of their retirement programs and pensions.
Two years ago, Oklahoma County District Court Judge Sheila Stinson permanently enjoined the enforcement of the law and her ruling came in a challenge by the late Don Keenan. Her ruling to make it permanent after she initially temporarily suspended the enforcement. The decision prevented state Treasurer Todd Russ from enforcing a list of financial companies banned from doing business with state agencies because of their ESG policies at the time against the oil and gas industry. he law targeted major financial institutions, including BlackRock, Wells Fargo, and JPMorgan Chase, for their environmental, social, and governance (ESG) policies.
Attorney General Gentner Drummond took over the challenge and appealed to the state supreme court, arguing the Act ““merely ensures that the State will not subsidize boycotts that harm a crucial industry within the state. And the Act does not infringe upon free speech because it regulates inherently non-expressive and commercial conduct.”
Don Keenan died in the spring of last year and there was an attempt to allow a substitution in the case before the Supreme Court. In the last filing in the case, a majority of the justices denied the request.
ORDER
No. 122,686
)
JOHN D. HADDEN
CLERK
The Court notes the Notice of Suggestion of Death and Motion for Leave of Court to Substitute Party If Necessary, filed by counsel for the deceased appellee, and the additional filings
by the parties addressing the requests in this motion. No named person is before the Court seeking to be named as a party to substitute for the deceased appellee. This motion filed by counsel for deceased appellee is DENIED. Campbell v. Campbell, 1994 OK 84, 878 P.2d 1037.
The Order of April 21, 2025, herein granting appellant’s motion for additional briefing is WITHDRAWN and VACATED. Motion by appellant for oral argument is DENIED.
The appeal shall proceed as an appeal authorized by Okla.Sup.Ct.R. 1.36, and the trial court briefs are the appellate
briefs. No additional briefs are necessary. No amicus curiae briefs shall be filed.
DONE BY ORDER OF THE SUPREIME COURT IN CONFERENCE THIS23 DAY OF
JUNE, 2025.”