Climate Change

Fifth Circuit Stays Preliminary Injunction Enjoining Implementation of President Biden's Executive Order 13990 on the Social Cost of Greenhouse Gases

On March 16, 2022, the Fifth Circuit Court of Appeals, in Louisiana v. Biden, No. 22-30087, 2022 WL 866282, stayed a preliminary injunction that enjoins the federal government from using interim estimates published under Executive Order 13990, an order that directs federal agencies to consider as part of their cost-benefit analyses the social costs of greenhouse gases ("SC-GHG") when implementing regulations and other relevant agency actions. This is the first time a court of appeals has issued any substantive rulings in regard to EO 13990.

President Biden issued EO 13990 on his first day in office. Among other things, the action establishes and directs an Interagency Working Group on the Social Cost of Greenhouse Gases ("Working Group") to quantify the social costs of carbon, methane, and nitrous oxide emissions. President Obama convened a similar Working Group in 2009, which was dismantled by the Trump administration. Consistent with EO 13990, on February 26, 2021, the Working Group published Interim Estimates that are identical to those developed by the Working Group under President Obama in 2016, except the current values have been adjusted for inflation.

As previously reported, the State of Missouri and 12 other states challenged EO 13990, alleging violations of the U.S. Constitution and the Administrative Procedure Act ("APA"). The Eastern District of Missouri dismissed the case for lack of standing, and an appeal remains pending in the Eighth Circuit Court of Appeals.

The State of Louisiana and 10 other states filed a similar suit in the Western District of Louisiana, again challenging EO 13990 on grounds that it violates the APA. The district court held that the plaintiff states had standing and further granted a preliminary injunction after finding that the states were likely to succeed on the merits. The government then filed a motion to stay the preliminary injunction. The Fifth Circuit granted the motion to stay, finding that the federal government was likely to prevail on its standing challenge. The states' claims amounted to a "generalized grievance," and any injury stems from "forthcoming, speculative, and unknown regulation[s]." The Fifth Circuit explained that "no obstacle" prevents the states from challenging a specific agency action that uses the SC-GHG values. The states sought en banc review of the Fifth Circuit's three-judge panel decision, which has also been denied. The preliminary injunction remains stayed pending the underlying appeal before the Fifth Circuit. 

Although the Working Group intended to issue final SC-GHG values by January 2022, it has not yet done so. On January 25, 2022, the U.S. Environmental Protection Agency ("EPA") published in the Federal Register requests for nominations of outside experts to review the final SC-GHG estimates. Details on the EPA's "peer review schedule" will be posted online once available. In addition to determining final values, the Working Group must also provide recommendations on a methodology for periodically reviewing and updating the SC-GHG estimates. These recommendations are due by June 1, 2022, but it is unclear whether the Working Group will meet this deadline.

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