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Thursday, March 28, 2024 | Back issues
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Red states trying to block pollution cost study lose at high court

A group of Republican-led states say President Biden lacks the authority to calculate the social cost of greenhouse gases, but the Supreme Court disagreed.

WASHINGTON (CN) — The Supreme Court gave the Biden administration a green light Thursday to move forward with its financial study of how much greenhouse gases cost the American public. 

The one-sentence order from the court does not note any dissents and allows a Fifth Circuit ruling to remain in place.  

It stems from an executive order President Joe Biden issued in January 2021 aimed at calculating the “social cost” of greenhouse gases like carbon, nitrous oxide and methane. Biden was not the first to create an interagency working group to determine these metrics; a 2009 incarnation at the Office of Management and Budget had been disbanded during the Trump administration. Biden reestablished the group upon his election and directed it to provide updated social cost estimates for agencies to use when monetizing climate change. 

Ten Republican-led states headed by Louisiana filed a suit against the Biden administration to prevent the White House from calculating these costs, concerned that the metrics will give rise to policies they oppose. A federal judge granted an injunction that stopped government agencies from using the social cost estimates and prohibited agencies from relying on them in any way including nonbinding recommendations. The Fifth Circuit stayed the injunction in March, prompting an appeal by the GOP-led states to the high court

Claiming the district court’s actions were unprecedented, the government said the states lack standing to prevent them from determining the social cost metrics. The government said the states could challenge a rule or policy that used the social cost estimates but can’t change Biden’s directive to agencies to use a certain methodology. 

“As the court of appeals recognized, and as another district court likewise concluded in rejecting a parallel challenge to the interim estimates brought by a different group of States, a State may not challenge the interim estimates in the abstract,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “Rather, if and when a federal agency relies on the interim estimates in promulgating a final rule or taking other concrete final agency action that causes a judicially cognizable injury to Louisiana, Louisiana may challenge that particular action and argue that the agency acted unlawfully by relying on the estimates in taking that action.” 

Louisiana claims the case concerns the major questions doctrine — a carveout of the court’s precedent on agency deference. The doctrine is controversial, with some court watchers on the lookout for justices who would apply quasi-constitutional doctrine unfairly to agency action that the justices dislike.

“In a sentence, then, the SC-GHG Estimates embody a contested public policy choice of ‘deep economic and political significance,’” Louisiana Solicitor General Elizabeth Murrill write in the states’ application. “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 government claims the major questions doctrine isn’t relevant in this case because the executive order uses Article II powers, not congressional authorization. 

“Louisiana contends that the Executive Order addresses a ‘major question,’ but that characterization has no legal relevance to this case,” Prelogar wrote. “While the Court may ‘expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,’ the Executive Order rests on Article II, not on a congressional authorization. Whether the order addresses a ‘major question’ it thus beside the point.” 

Follow @KelseyReichmann
Categories / Appeals, Environment, Government, National

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