A year after a state retiree died following his legal challenge of Oklahoma’s Energy Discrimination Elimination Act of 2022, the Oklahoma Supreme Court has ruled the law is unconstitutional, ruling against state Treasurer Todd Russ.
The law originally allowed the state Treasurer to compile a “black listing” of financial firms that discriminated against the state’s oil and gas industry. It was created in response to ESG or Environmental, Governance and Social discrimination of fossil fuel companies.
“I have respected the judge’s ruling from the very beginning. My office is currently in communication with the Solicitor General to fully understand the appropriate path forward and ensure we proceed in accordance with the law,” said the Treasurer in response. “It is important to remember with or without a statue the office is obligated to make sound business decisions as a fiduciary for the state.”
The Justices agreed with former Oklahoma Public Employees leader Don Keenan who died in April of 2025 following his filing of his lawsuit in 2023.
In a ruling this week, the high court said the Act approved by the legislature was unconstitutional because it forced state pension programs to drop certain fund managers at a cost to retirees.
“We conclude the Energy Discrimination Elimination Act of 2022 (EDEA) (74 O.S.Supp.2025 §12001 – §12006, inclusive) is unconstitutional in its entirety when applied to the Oklahoma Public Employees Retirement System because the Act conflicts with Okla. Const. Art. XXIII, §12. 1 We affirm the District Court’s summary judgment granting a permanent injunction against Treasurer to the extent the injunction prevents the Treasurer from enforcing or applying the EDEA to the Oklahoma Public Employees Retirement System (OPERS),” wrote the Supreme Court.
The Supreme court ruling came nearly two years after Oklahoma County District Judge Sheila Stinson put the law’s enforcement on hold, stating, ” ‘The Court finds a substantial likelihood that this stated purpose of countering a “political agenda” is contrary to the retirement system’s constitutionally stated purpose. An attempt by the Treasurer or the Board to divest or transfer funds for any purpose other than the benefit of the members or beneficiaries is contrary to and a violation of Okla. Const. Art. 23, §12.’”
Three justices disagreed with the majority. One was Justice C. J. Rowe.
“The Energy Discrimination Elimination Act of 2022, 74 O.S. §§ 12001–12006, (“Act”) operates precisely within its constitutional directive. The Act does not alter the exclusive purpose of the retirement trust, nor does it divert funds to unrelated ends. Instead, the Act prescribes conditions as to how funds may be invested by identifying certain financial relationships as impermissible. That determination falls squarely within the Legislature’s delegated discretion conferred by “as provided by law” in § 12.
¶4 Accordingly, I respectfully dissent from the Majority Opinion as I would find the Act is constitutional,” wrote Justice Rowe.
Justice V.C.J. Kuehn also disagreed with the majority.
“Let us be clear. This is not taxpayer standing. I need not discuss whether I agree that original Plaintiff could have had taxpayer standing, because that is not the basis of the Majority’s ruling. The Majority has apparently created a separate category of standing: it allows a suit by a retirement system beneficiary who cannot show damages of any kind, including threats to the OPERS funds from official policy as expressed in the Act, because the Act was never successfully applied to the OPERS funds. OPERS never divested under the terms of the Act. And at the risk of repeating myself I note that Plaintiff’s chosen defendant had no power to make OPERS do so,” declared Justice Kuehn.
Justice J. Kane also disagreed with the majority and pointed to the death of Keenan and how it should have impacted the case.
“Through no fault of the tragically departed Appellee, the majority proceeds forward with a case that either needs a new party substituted, or else necessarily stands as abated. Since the Court has elected to proceed forward without a real party in interest to stand in the shoes of the late Appellee, I believe the action is abated.
¶2 The effect of the death of the Appellee upon the subject litigation is profound. It terminated any meaningful opportunity for the Court to seek additional briefing or to engage in an oral argument of the propositions presented.”