Biden’s pollution tabulations drive challenge from GOP-led states

WASHINGTON (CN) — Ten Republican-led states asked the Supreme Court on Thursday to put a halt to the Biden administration’s efforts to calculate the costs of greenhouse gas emissions.

President Joe Biden has been battling the states since he issued an executive order in January 2021 to figure what is known as the "social cost" of greenhouse gases like carbon, nitrous oxide and methane. Industry experts created the social cost metric back during the Bush administration to calculate how much damage in dollars the planet sustains when 1 ton of a greenhouse gas is emitted into the atmosphere.

“An accurate social cost is essential for agencies to accurately determine the social benefits of reducing greenhouse gas emissions when conducting cost-benefit analyses of regulatory and other actions,” the White House said in a statement at the time. 

Biden's order established an interagency working group to determine the costs, only to face an injunction when the GOP-led states filed suit.

After the Fifth Circuit stayed the injunction last month, the states now want the Supreme Court to vacate that order.

With Louisiana leading the charge, the states say the case presents serious questions of agency authority requiring emergency intervention. The states point to other cases where the court has intervened before, like a challenge to the Environmental Protection Agency’s authority to regulate greenhouse gas emissions, the pandemic eviction moratorium, and the federal government’s vaccine mandate for large businesses.

“But as grave as the agency-authority questions were in those cases, they’re featherweights next to what’s at stake here,” Louisiana Solicitor General Elizabeth Murrill write in the states' application. “A new agency created by presidential edict — not by Congress — has claimed authority from that same edict — not from even one statute — to fundamentally alter every regulatory undertaking of virtually every federal agency." (Emphasis in original.)

If the court fails to act, Louisiana said the executive branch will use the metrics from the working group to influence policy outcomes that will affect everything in modern American life. This, according to the states, could include rulemaking related to the food chain; the construction of roads, bridges, and housing; and energy-related projects and permitting. Louisiana predicts in its brief that the government could even use the metrics to justify killing cows because they emit methane.

“This case thus requires the Court’s immediate intervention even more than those ones did; this might be the most consequential rulemaking in American history, culminating in 'the most important number you’ve never heard of,'’’ Murrill wrote. 

Louisiana encourages the court to tackle the case by way of the major-questions doctrine, a carveout of the court’s precedent on agency deference that some justices have suggested using as a quasi-constitutional doctrine. The court’s precedent on agency deference in Chevron USA Inc. v. National Resources Defense Council Inc. says that, unless Congress has said otherwise, courts should defer to agencies to interpret their own statutes. Chevron is not an agency free-for-all, however, and has an exception that says, if the interpretation implicates major questions, Congress must explicitly authorize it. Court watchers claim some justices are applying the major-questions doctrine unfairly to agency action they dislike.  

“In a sentence, then, the SC-GHG Estimates embody a contested public policy choice of ‘deep economic and political significance,’” Murrill wrote. “And Congress must ‘speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’ Here, however, Congress has not spoken on this issue at all.” 

The states claim they will suffer irreparable harm if the executive order is not stopped. These include increased energy costs and decreased tax revenues. 

A response to the emergency application is due from the Biden administration on Monday. 

Follow @KelseyReichmann

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