Federal Court Bars Federal Agencies from Considering the Costs of Climate Change in Agency RulemakingsA federal district court has taken the unusual step of enjoining an Executive Order setting forth an Administration's regulatory priorities.
By Jonathan H. Adler
February 21, 2022
On his first full day in office. President Biden issued Executive Order 13990, requiring that federal agencies begin reversing Trump Administration environmental policies, particularly those related to climate change. One provision of EO 13990 declared that it is "essential that agencies capture the full costs of greenhouse gas emissions as accurately as possible," and created an Interagency Working Group (IWG) tasked with issuing an interim "social cost of carbon" (SCC), estimating the costs imposed by greenhouse gas emissions. The EO further provided that "agencies shall use" this cost estimate "when monetizing the value of changes in greenhouse gas emissions resulting from regulations and other relevant agency actions" pending the development of a more robust social cost of carbon estimate.
As is common these days, a number of states filed suit against this new Biden policy, challenging the new Administration's authority to order consideration of the social cost of carbon. One suit, filed in Missouri, was dismissed on standing grounds, as has happened with past efforts to challenge regulatory policy Executive Orders in court. As occurred when progressive groups and blue states challenged Trump Administration EOs, the district court in Missouri v Biden concluded that the plaintiff states needed to challenge a specific final regulatory action that harms then, and could not challenge the presidential directive itself. This case is now on appeal.
A second suit was filed by a second group of states in Louisiana, and has produced quite different results. On February 11, Judge James Cain of the U.S. District Court for Western Louisiana granted a preliminary injunction against the Biden Administration, barring federal agencies from considering the IWG's social cost of carbon estimates or "independently relying upon the IWG's methodology considering global effects, discount rates, and time horizons," and requiring federal agencies to follow the guidance of a George W. Bush Administration memo (Circular A-4) in conducting regulatory analyses. Whatever one thinks of the IWG's social cost of carbon estimates or their role in regulatory policy, this is a bizarre and highly problematic opinion.
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Source:
https://reason.com/volokh/2022/02/21/federal-court-bars-federal-agencies-from-considering-the-costs-of-climate-change-in-agency-rulemakings/
