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Climate Change

Federal Court Bars Federal Agencies from Considering the Costs of Climate Change in Rulemakings [Updated]

A federal district court has taken the unusual step of enjoining an Executive Order setting forth an Administration's regulatory priorities.

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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.

The threshold problem with Judge Cain's opinion in Louisiana v. Biden is its conclusion that the case is justiciable. The plaintiff states' claims, and the relief sought, concern instructions for how agencies are to consider the climate impacts of their decisions, and does not target anything that could remotely be considered a "final agency action." (Nor, for that matter, is the President an "agency" under the APA for purposes of judicial review.) If the plaintiff states were challenging how a specific agency relied upon the IWG's SCC estimates to reach a particular regulatory decision, such claims could be raised in a legal challenge to that specific agency decision. Such a challenge could even include arguments that the IWG's estimates are arbitrary and capricious. What is not generally allowed, however, is for plaintiffs to challenge a presidential directive prescribing the manner in which agencies are to go about making regulatory decisions before such regulatory decisions are made. It is not clear how such claims satisfy the requirements of Article III standing, nor are such claims ripe.

Judge Cain notes that the plaintiff states are concerned that the IWG's social cost of carbon estimates, when considered in the context of particular programs, may result in more stringent regulatory requirements. They might. And when a given agency imposes a more stringent regulatory burden on a state or private entity due to the social cost of carbon, affected parties (including the plaintiff states) will have ample opportunity to challenge that regulatory action and the analysis upon which that action was premised. At that point, it would be perfectly appropriate for a court to consider whether that agency was allowed to consider the potential costs of climate change in this way, and whether its doing so was consistent with the APA's requirement of reasoned decisionmaking. Yet that is quite different from declaring, as the court does here, that no agency may rely upon these estimates in any rulemaking or other agency action going forward, without regard for the particular statutory authorities or constraints applicable to that specific agency action.

The opinion's analysis then turns to the plaintiff states' arguments that EO 13990 worked "an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization," in violation of the "major questions doctrine." As much as I like the major questions doctrine (and have even argued for its aggressive use), it has no place here.

Judge Cain writes:

The Court finds that EO 13990 contradicts Congress' intent regarding legislative rulemaking by mandating consideration of the global effects. The Court further finds that the President lacks power to promulgate fundamentally transformative legislative rules in areas of vast political, social, and economic importance, thus, the issuance of EO 13990 violates the major questions doctrine.

There are several errors here, starting with the conclusion that the EO (an action by the president) is a legislative rule (or even that it is a final agency action subject to judicial review). If it would be an error for an agency to consider global effects in the adoption of a particular rule, given the particular statutory authorization for that rule, a court could enjoin that agency action once it is finalized, but that is not what is happening here. Rather, the court seems to accept that directing agencies to consider global effects in future rulemakings is itself the sort of legislative rule that requires express congressional authorization under the major questions doctrine. This is wrong on multiple levels and poses a severe threat to White House oversight of agency rulemaking.

Nothing in EO 13990 expands federal regulatory authority. This EO, like prior regulatory EOs issued by prior presidents, sets out the current administration's regulatory priorities. In other words, it gives agencies direction as to how they should use the regulatory authority they already have. Also as with prior EOs issued by prior administrations, it directs agencies to consider things they may not have considered in the past or to consider things in a new way. There is nothing unlawful about this. Asking agencies to consider, say, the global effects of their actions no more expands federal regulatory authority than did prior EOs that asked agencies to begin considering cost-benefit analysis, comparative effectiveness analysis, or Takings analysis. Calling upon agencies to consider the social cost of carbon, where they are not statutorily prohibited from doing so, no more implicates the major questions doctrine than did the Trump Administration EO telling agencies to adopt a form of regulatory budgeting. Indeed, even if a statute bars an agency from making such costs a factor in its decisionmaking, this does not preclude an agency from making the assessment for informational purposes. (So, for instance, the EPA does cost-benefit analyses of proposed NAAQS revisions, even though it may not consider costs when setting the NAAQS.)

The opinion also embodies a bizarre notion of executive power, under which the (allegedly) consistent approach to regulatory analysis by prior administrations somehow bars future administrations from changing course, within the bounds proscribed by relevant statutes. Specifically, Judge Cain suggests that because prior administrations adopted a particular approach to estimating costs and incorporating discount rates, the Biden Administration is somehow bound to follow suit, and that a federal court has the authority to prescribe compliance with prior administrations' policies outside the context of a specific agency action that is under review.

In seeking to justify an order that agencies adopt the regulatory analysis policies of a prior administration, the opinion also mangles the history of executive branch regulatory review, and even manages to misrepresent the authorities upon which he relies. Here I will rely on the comments of Duke's Jonathan Wiener, co-author (with Michigan's Nina Mendelson) of one of the papers on which Judge Cain purported to rely:

I noticed that on p.5 of this court's slip opinion, it cites an article that Nina Mendelson and I wrote in 2014, as a reference for what this court calls "the consensus on cost/benefits analysis required by Presidents Nixon, Ford, Carter, Reagan and Clinton. See Nina A. Mendelson & Jonathan B. Wiener, Responding to Agency Avoidance of OIRA, 37 Harv. J.L & Pub. Pol'y 447, 454–57 (2014)."  That's partly right, but actually what Nina and I wrote is that the bipartisan consensus across presidencies in favor of benefit-cost analysis (BCA) started with the EOs issued by Carter (12044, plus OMB guidance) and Reagan (12291), whereas Nixon and Ford had focused on "quality of life," "inflation," and "economic impact" (perhaps the latter embraces BCA); and then, building on Clinton's EO 12866 (which solidified bipartisan commitment to BCA), this bipartisan consensus continued in the Bush and Obama administrations (e.g. via Circular A-4 in 2003, and EO 13563 in 2011) (see our paper at pp.457-463).  More recently I have written here and here that the Trump administration departed from that consensus (by neglecting benefits), that good BCA should consider all important impacts (including target benefits, costs, co-benefits, and countervailing risks), and that the Biden memo on Modernizing Regulatory Review (Jan. 20, 2021) returns to the prior bipartisan consensus (by reaffirming EOs 12866 and 13563), plus calls for further measures yet to come.

It is not simply that the opinion gets the history wrong. It is that the opinion uses this stylized historical account as the basis for claiming that a particular approach to regulatory analysis, that embodied in the Bush Administration's Circular A-4, is somehow legally required, despite the lack of any legislation to that effect, and that a federal court has the authority to tell federal agencies, prospectively, what things they may or may not consider when developing regulations. The opinion also flubs the details of specific regulatory requirements (such as those related to NAAQS standards, noted above), but this post is long enough as it is, so I will forebear detailing these mistakes.

I am sympathetic to the argument that the Bush Administration's approach to discount rates is preferable to that of the Biden IWG, but the idea that it is unlawful for a President to order use of the IWG's approach where agencies have the discretion to do so is quite radical, and without meaningful legal precedent. If Congress wants agencies to adopt a particular methodology for conducting regulatory analysis, it is free to do so. But unless and until it does, the White House may direct agencies to prioritize or emphasize particular concerns within the bounds of existing statutory constraints. In this regard it is notable that Judge Cain cites no statutory authority for precluding the Biden Administration's approach across-the-board. At best all he can cite are program-specific requirements that agencies consider particular things.

There may well be strong policy arguments against the Biden Administration's approach to climate change and regulatory policy (see, e.g., here). But such policy disagreements do not provide license for federal courts to dispatch with traditional administrative law doctrines or invent new ones.

I expect this decision to be appealed and would like to think the appellate court will not repeat the district court's errors.

P.S. In the meantime, the New York Times reports, this ruling is slowing a wide range of agency actions, including the approval of permits of oil and gas development. In other words, in the name of challenging regulations, these state plaintiffs may have actualy increased some regulatory burdens.

UPDATE: Devin Watkins of the Competitive Enterprise Institute takes issue with my post, and argues that Judge Cain's opinion is "reasonable," and "far from the crazy opinion" my post suggests. To be frank, I thought I had gone easy on Judge Cain, as I did not identify every error nor point out every oddity (such as the opinion's reference to the "separation of powers clause"). Judge Cain's opinion was far from reasonable. It was wrong many times over and made a mess of relevant law.

Watkins' attempted defense of the Louisiana v. Biden decision makes multiple errors of its own, both misstating and misapplying black-letter administrative law concerning legislative rules and what constitutes a final agency action, while also engaging in a bit of bait-and-switch as to what is being challenged and which agencies were enjoined.

The IGW estimate cannot be a legislative rule because it, by itself, does not obligate anyone to do anything. Any obligation agencies have to apply the social cost of carbon estimate comes from the Executive Order. Even if the EO could be challenged as a final agency action, it expressly says it does not augment or constrain preexisting agency authority or create any legally binding obligations, nor does it imbue the IWG with the power to take action with the force of law.

If an agency uses the IWG's social cost of carbon estimates to do something that is unlawful or arbitrary, that action can be challenged, but there is no basis to challenge a number that was issued pursuant to an Executive Order unless and until it is incorporated into an agency action that has legal effect. That a federal agency might, in the future, reject a state submission doesn't cut it.

That various statutes direct agencies to consider particular factors does not bar the President from asking agencies to consider other matters (though it may preclude agencies from relying upon such matters in making their decisions). If a given statute precludes the consideration of specific factors by an implementing agency, this could serve as the basis for a challenge to a specific action taken pursuant to that statute, but not the basis of a global challenge to preclude any and all consideration of those factors by any agency acting pursuant to other statutes.

I am particularly surprised that Watkins seems to endorse Judge Cain's view that OMB Circular A-4 -- a non-binding guidance --cannot be modified or departed from without notice-and-comment because OMB solicited comment when it promulgated A-4. This is wrong as a matter of law and, if taken seriously, would hamstring Presidential efforts to set agency priorities. If a given degree of process were required for an agency to take an initial action, no less process is required for the agency to change course. But (and this is key), an agency's voluntary choice to provide more process than is necessary (as the OMB did) does not operate as a ratchet forever obligating that agency to provide such process in the future. To claim otherwise in the case of a non-binding guidance, such as A-4, is neither reasonable nor remotely correct.

I understand the objections to the IWG's SCC estimates (see Roger Pielke Jr.'s critique of the Biden Administration's approach here), but Judge Cain's opinion is indefensible, and it gets worse with every repeated reading. My original post and this update barely scratch the surface in this regard.

It also turns out (as noted in the P.S. above) that Judge Cain's ruling is having some unintended effects, and creating conflicts for agencies that are under legal obligations to take broader account of climate-related costs (including those overseas). For more on the consequences of the ruling (and more on how OIRA review of agency rulemakings actually operates), see this declaration in support of the government's motion for a stay in Louisiana v. Biden by Dominic Mancini, Deputy Director of OIRA.

NEXT: Final Version of The Irrepressible Myth of Jacobson v. Massachusetts Published

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  1. “ I expect this decision to be appealed and would like to think the appellate court will not repeat the district court's errors.”

    I assume you know better than to actually think that they will since it’s going to the Fifth Circuit.

    1. And what do (1) the Fifth Circuit, (2) Judge Cain, and (3) the United States Senator who told me that he can't 'get too worked up about environmental issues because, in the end, the Rapture is going to take care of everything' have in common?

      They are part of Prof. Adler's (current) political party and ideological team.

      When you have had enough, Prof. Adler, let me know. I not only will hand-deliver your change of registration form -- to your office, your home, or a preferred hospitality venue -- but also will provide some overdue and excellent beer. I have been holding some Mad Elf for you for a couple of years, for example (and it seems to be aging nicely, but some of it belongs in your glass).

      1. If you substitute advancing tech for the rapture, that's sufficient reason not to get worked up.

        Indeed, slowing the economy because you are worked up is detrimental to the process as a whole, as 10 or 20 years' tech lag in 100 (or worse) kills on a scalr much larger than your worries.

  2. Perhaps we could call this the "Trump Rule" where EOs issued by former Presidents are sacrosanct and can't be overturned.

    Ignoring the details of the legal issues, what exactly is the "cost of climate change" and how are they planning on estimating it? Seems to me that Congress should step up and exert their powers to point out that they never passed a law requiring agencies to do this. Oh wait, I forgot, Congress doesn't care about their power anymore, so long as they agree with the President's agenda.

    1. It would be most amusing if the administration prevailed here, and in 2025 a Republican administration decided that, in light of factors such as reduced heating costs, "the cost of climate change" was net negative, and so CO2 production should be encouraged.

      Even if unlikely, it's an interesting thought experiment.

      1. Or they could also adopt the Book of Mormon as the official history of white people in North America. Or that flying spaghetti monsters add 0.04% to the cost of every rulemaking formula.

        1. Winter heating costs actually are non-fictional, you know. Unlike flying spaghetti monsters.

          1. I understand certain religious sects can be quite violent towards non-believers.

            Not a threat since I'm a non-believer but I did want to give you a heads up.

            1. I used to live in Michigan, so I'm pretty confident about that.

              1. I don't understand why past Michigan residence would bear on the existence or non-existence of FSMs, so not sure why you'd offer that as proof.

                1. Ah, I thought the question was whether heating costs existed.

                  1. You guys are cracking me up.

        2. I could easily see a Republican president from the "own the libs" wing of the party doing something along the lines Brett is proposing, although I suspect a district judge in Portland would probably make short work of it.

      2. I can fully believe that a Republican administration would be stupid enough to do that.

        And why would heating costs go down, anyway? Wouldn't there be a northward (in the northern hemisphere) population shift, making the direction of change in heating costs indeterminate?

        1. Sure, but if you assume adaptation, the supposed costs of climate change become just as indeterminate, so that's not really a difference.

      3. Trump had the cost of carbon as low as $1 per ton. Even given a climate model to work with there is a huge range of possible values depending on assumed discount rate and valuation of non-economic damages. There is not a correct answer to the question, "what is the cost of 1 meter of sea level rise in 2100 to the people of 2022?" Science can't answer that question. Agency expertise can't answer that question.

  3. This is a good decision. One could just as easily demand agencies "evaluate the costs of racial imbalance" within their decision making process, or "evaluate the costs of social deviancy" within their decision making process.

    "Global climate change" costs are so nebulous and 2nd or 3rd order, that they can be stretched to cover anything.

    1. If by good you mean completely wrong on every area of the law it touched, then sure.

    2. From a legal standpoint the decision is correct.

      Though the science behind "social cost of carbon" relies on a horrendous amount of cherry picked data, logic errors and flat out delusional concepts.

      https://www.hsph.harvard.edu/c-change/news/fossil-fuel-air-pollution-responsible-for-1-in-5-deaths-worldwide/

      the link above is prime example of crappy BS science

      1. “From a legal standpoint the decision is correct.”

        No it’s not. Not at all. There’s no final agency.

        1. Sorry - mistated what I meant,
          meant to say the district court was wrong an adler's analysis was correct.

          1. No Adler is full of it. He seems to have a notion that EO can override the APA, which they can't.

            When an agency when promulgating a rule incorporates an EO into the rule, and then the rule clears all the hurdles of the APA, then the rule is final.

            But just because a new president puts out a new EO, it doesn't mean the agency doesn't have to clear the hurdles of the APA when implementing the new rule, which is what Adler is saying. Especially when the new EO contradicts congress.

            1. An agency has discretion over what it's internal analyses are, come on.

              1. Do you know how to tell that argument is ridiculous?

                Because the government didn't make it.

      2. Joe_dallas
        February.21.2022 at 12:04 pm
        Flag Comment Mute User
        From a legal standpoint the decision is correct.

        Oops - need edit button.
        Adler's analysis is correct, district court is wrong.

        1. My kingdom for an edit button.

      3. You said for legal reasons, and then you didn't cite anything legal. In fact, you liked to something you wanted to point out as wrong.

        The APA does not instantiate your personal climate change beliefs, no matter how fervently held.

        1. Sarcastro
          1) you missed my correction when I corrected my statement to say the legal decision was incorrect
          2) the link I provided was a prime example of the crap that poses as quality science. The study is riddled with math and logic errors. The issue you have is the inability to recognize the obvious clues for bad scientific studies.

          1. 1) Yep, I did.

            2) You can science at the scientists all you want, and pick papers you think are wrong. In the end, you're going to pick one set of experts or another; that's the way of science; institutions are key.

            You picked a scattered set of people who disagree with the consensus. Maybe you're right - historically such groups are not wrong all the time. But I wouldn't bet on it.

            1. Sacastro comment - 2) You can science at the scientists all you want, and pick papers you think are wrong. In the end, you're going to pick one set of experts or another; that's the way of science; institutions are key.

              You picked a scattered set of people who disagree with the consensus. Maybe you're right - historically such groups are not wrong all the time. But I wouldn't bet on it."

              Sacastro - Most of the studies showing the social costs of carbon are based on flawed premises and its easy to spot the multitude of errors. Same logic errors with the premature deaths studies promoted by the EPA, many of which claim the reduction in deaths due to reduced air pollution in numbers greated than the actual deaths due to air pollution. Progressives inability to spot those errors doesnt speak highly of basic critical thinking skills.

              1. They also ignore the insane social costs of government command and control. "Social costs" is a cover story for yet another reason to get in the way, to get paid to get out of the way. Or go have a party at your rich friend's house when his business suddenly has a business model due to government coercion of everybody else.

                This is not the side effect of power. It is the purpose of power.

                1. the insane social costs of government command and control

                  ::eyeroll::

                  Congress already took those costs into account when making the enabling act for the agency.
                  And agencies do take the costs/benefit of regulation into account - the null policy is part of every analysis.

                  Your market-worship is not instantiated in the APA.

                  1. Proof that Congress took them into account? And why should anyone think Congress is an accurate judge of such things lmao

                    As if an agency which already has a policy agenda has ever abandoned it on the basis of cost-benefit analysis lmao - don’t pretend we’re stupid.

                    He didn’t say anything about the APA. But nice non-sequitur as usual.

            2. “In the end, you’re going to pick one set of experts or another; that’s the way of science”

              I’m an engineer and I’ll throw in that the Way of Science, correctly done, requires intellectual honesty. And sometimes intellectual honesty requires the answer to be “we don’t know”.

              IMO, that’s the case with the estimates of climate change cost because the future conditions are not estimable within reason because the models (themselves, or the assumptions, or the inputs) are garbage. Predictions made by earlier models compared to current conditions are virtually unrelated, except for direction.

              1. Mr Bevis, the engineer -
                concur with your comments
                Its often easy to spot a BS study. Measuring the social costs of carbon along with the EPA's estimate of lifes saving from reduced air polution, often times assuming a reduction in the number of deaths greater than the current number of deaths from air polution.

              2. ... the Way of Science, correctly done, requires intellectual honesty.

                Spot on ! Though to quibble a bit with Sarcastro's initial characterization ...

                In the end, you're going to pick one set of experts or another; that's the way of science

                Not so much. This is the statement of someone choosing a priesthood, not someone trying to understand a system. In the end, I am going to choose a series of arguments not a selection of experts. The experts are useful because the often advance many of the best models and have the best attacks against their opponents positions. If anything, experts are good at rooting out snake oil in other experts, but in the end it shakes out to how well the arguments hold together.

              3. Bevis - the problem is that science never knows. You can quantify uncertainty, but of course that's another source of uncertainty.

                Joe, of course, is sure he's got it right as well. But he has neither an institution to fall back on nor personal expertise.

                I see this with Covid as well. j_d has a blog he likes - healthy skeptic - and he cites to it for authority.

                Its often easy to spot a BS study
                Especially if you've tied your identity to finding out it's BS. You've discovered the scientific consensus is wrong twice - covid and climate - and both times it agreed with what you already thought. How lucky is that!

                1. Sarcastro - that’s basically my issue with this. Climate has long since the realm of science and long since entered the realm of politics, in which there is no objectivity to be found. And that’s not a jab at just one side.

                  So the calculators (estimators? predictors?) are going to lean hard into whichever way they want the answer to run. Without showing their work.

                  1. There's plenty of good science being done in the area; I don't think throwing up your hands and declaring all policies are equally valid because it's all politics is the right answer.

                    1. Sarcastr0
                      February.22.2022 at 5:20 am
                      Flag Comment Mute User
                      "There's plenty of good science being done in the area; I don't think throwing up your hands and declaring all policies are equally valid because it's all politics is the right answer."

                      There is also a lot of really bad agenda driven crap going on masquarading as "science". A few examples, RCP 8.5, the paleo temp reconstructions which dont line up with other known historical facts,

                      I would expect someone posting on this blog to be able to recognize most of the crap,

                    2. Joe, you've come to a conclusion; it is clear that no science will convince you - you'll just point to other science you've been convinced is wrong.
                      And maybe it is! But you have a track record of more appealing to authority that you feel is more convincing than the general science enterprise.

                    3. Sarcastro - I have a track record of point out bad studies numerous time in which the underlying data doesnt support the conclusion, many of which are worshipped by progressives. Many of those studies have huge red flags that should be obvious to those who arent wedded to a conclusion.
                      I've made many recent comments such as the kansas mask mandate/non mandate county study, the kentucky vaxed reinfection study promoted by the cdc which used an invalid denominator along with a basic math error. Same with my comments regarding the CDC's claim that vax immunity is stronger than natural immunity.

                      Months later, all my criticisms of those studies have turned out to be correct.

                      Another study that I mentioned above that claims 1 out of 5 deaths are due to air pollution.

                      most of the studies I have criticized have huge red flags which should be easily recognized.

              4. Artifex - I'm an institutionalist. I have a degree in physics, but after about WW2 I begin to have to take things on faith - I haven't done the experiments, and I certainly don't have the intuition to suss out errors in quantum stuff.
                Folks that say their good ole horse sense can point out which side is wrong are just showing their own hubris. Physics has shown itself to be non-intuitive over and over again. Even what seems to be a logical leap to you may be de rigueur in like materials science.

                Thus doesn't mean I become omni-skeptical, that's no way to survive. But it does mean the best I can do is realize I'm choosing an institution to put my faith into, and look at their methods.

                It is not a priesthood - this is not about the supernatural. But it is about expertise, and who has access to it, and what to do when you are not one of those. And, more importantly realizing you're not one of those and compensating accordingly.

                Lots of people here would be scoffing at Einstein. Which is fine, except they want to make policy decisions based on that appeal to incredulity. That's bad news.

    3. Professor Adler explained in great detail why you're completely wrong.

      Maybe read the articles before commenting?

      1. Jason - look further down, I corrected my mistatement - the legal decision is incorrect.

        1. My post was in response to Armchair Lawyer.

            1. No. He didn’t. He wrote a whole post about how the decision had multiple errors and therefore was not “good.”

              1. Adler agreed with what I said. Not with what you said. Try not to divert the argument to something that wasn't said.

                1. You said: “ This is a good decision.”

                  Adler said: “ 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.”

            2. In fact, you're full of your usual shit:

              "There may well be strong policy arguments against the Biden Administration's approach to climate change and regulatory policy (see, e.g., here). But such policy disagreements do not provide license for federal courts to dispatch with traditional administrative law doctrines or invent new ones.

              I expect this decision to be appealed and would like to think the appellate court will not repeat the district court's errors."

              Like I said, a whole blog entry as to why you're wrong.

    4. One could just as easily demand agencies "evaluate the costs of racial imbalance" within their decision making process, or "evaluate the costs of social deviancy" within their decision making process.

      Yes, I suppose if the executive power were vested in the president, the president could make policies that might be bad.

      Thank goodness the framers chose to vest the executive power in individual district judges instead!

      1. That what 2016-2020 taught me.

  4. Counter-Resistance!!!!

    Lawless Hawaii rulings begat Texas and Louisiana rulings.

    Stinks doesn't it. You were told this would happen but alas, GET TRUMP uber alles.

    1. Lol if you think that this judge would be restrained if judges didn’t rule against Trump. He completely made up a bunch of things (just like the Fifth Circuit did in the United Airlines case, or in the ACA case, etc), no one needed to rule against Trump for them to do that. He didn’t think: well I wouldn’t have disregarded all of administrative law, but those earlier judges were anti-Trump, so fuck it. He just did it because he could and no one is going to stop him.

    2. It's "über" alles and it seems like Trump is literally laying out the red carpet, inviting people to "get" him.

      BTW, what are the chances his "Truth Social" site closes before the summer solstice?

      I say 100%.

      And....ooops!

      Trump's Truth Social Might Have Run Into Legal Trouble on Day One

      https://www.newsweek.com/trump-truth-social-app-logo-trailar-launch-legal-issues-1681126

      1. I don't subscribe to European accent rules.

        1. So, your intent is to get Trump to ally with ride-share drivers?

    3. I remember when honorable people saw wrongdoing by their opponents as a chance to demonstrate their own virtue by doing better, not a license to gleefully sink to that level.

      What a bunch of cucks!

      1. When was this glorious age?

        1. It still happens. Your spite-for-spites-sake politics remains special, even on this site.

  5. Almost a year ago I mentioned the social cost of carbon in my comment on a rulemaking docket, noting there was some uncertainty but optimistically thinking there would be a final dollar value in place when the rulemaking completed.

  6. Here is a notable excerpt, with an interesting bit bolded by me:

    "To be clear, the Court is ruling only on the actions of the federal agencies and whether the agencies, by implementing the estimates and considering global effects- violate the APA and whether President Biden upon signing EO 13990, violated the separations of powers clause of the United States Constitution."

    1. Oof he said it twice so that’s not just a mistake…

  7. Just all kinds of rot in the Fifth Circuit. I am so sick of these assholes.

    1. You like the 9th? Because they perfected this type of behavior decades ago.

      1. Yep, as Judge Stephen Reinhardt, once said "They can't catch 'em all."

  8. This is the kind of "not even wrong" judgment that should get people impeached. (Or at least it should if it keeps happening.)

  9. If an agency was including rolling chicken bones in their analysis, would the plaintiffs prevail?

    That’s what this case was about. Agencies rolling climate chicken bones.

    1. If an agency was including rolling chicken bones in their analysis, would the plaintiffs prevail?

      Not at this procedural stage, no. A regulation that was issued based upon such voodoo tactics would be rather vulnerable under the APA, but no law or legal principle allows anyone to challenge the methods that an agency might use while contemplating a regulation.

      1. Plus, everyone knows that you study the chicken's *entrails,* not its bones. Don't you follow the science?

        1. At least in the classical world, haruspicy (divination through entrails) was done on larger livestock such as sheep or goats; augury (divination through birds) was done on wild, living specimens.

      2. That's not what's happening here, Biden put out a "interim" rule that says: 'roll the chicken bones like this for now in all your regulatory actions'.

        So decisions are being made, and enforced based on that chicken bone roll. But the Biden administration is claiming that because they may switch the chicken bones in the future, for new decisions, they can't challenge how the chicken bones are being rolled.

        1. No. You don't understand the legal issues. Agencies may be making lots of "decisions," in a colloquial sense. But "decisions" aren't subject to judicial review; final agency actions are. That could be the enactment of a regulation, or an adjudication of a particular dispute. And a court can reach those. But it can't reach the manner in which Biden told them to think about those issues.

          1. It certainly can if Biden's instructions are contrary to law, specifically Biden told them to calculate the cost of greenhouse gases using global cost estimates, Congress said to use domestic cost estimates.

  10. If you read the decision, which I did last week, a lot of Adlers claims don't hold water.
    Adler says the decision targets Biden's EO:
    (Nor, for that matter, is the President an "agency" under the APA for purposes of judicial review.) "
    The judge says he isn't:
    "To be clear, the Court is ruling only on the actions of the federal agencies and whether the agencies, by implementing the estimates and considering global effects— violate the APA and whether President Biden upon signing EO 13990, violated the separations of powers clause of the United States Constitution. The Court has the authority to enjoin federal agencies from implementing a rule—mandated by an executive order or not—that violates the APA or violates the separation of powers clause."

    Adler says there is no final agency action, but that isn't actually true, the decision points out while the SCC calculation itself is labeled interim, Biden's EO orders all federal agencies to use that SCC in all their regulatory decisions. You can call something interim, but if its being used now to make decisions the states have to abide by, its final.

    From the EO: "publish an interim SCC, SCN, and SCM within 30 days of the date of this order, which agencies shall use when monetizing the value of changes in greenhouse gas emissions resulting from regulations and other relevant agency actions until final values are published.”
    The decision says:
    "thus, the SC-GHG Estimates for 2021 meet the finality test. See Louisiana, 2021 WL 2446010, at *12 (“As long as an agency has completed its decisionmaking on a challenged rule—even one interim in nature—the rule satisfies the first prong of the finality test.”) "

    And the decision cites numerous final agency decisions that rely on the "interim" 2021 social cost of greenhouse gases rule.

    Then of course there is the calculation itself which purports to calculate the global cost of climate change, Congress specifically limited the EPA and other federal agencies to use domestic rather than global costs when calculating costs of emissions. The Biden rule clearly contradicts that congressional directive.

  11. Adler says the decision targets Biden's EO:
    (Nor, for that matter, is the President an "agency" under the APA for purposes of judicial review.) "
    The judge says he isn't:
    "To be clear, the Court is ruling only on the actions of the federal agencies and whether the agencies, by implementing the estimates and considering global effects— violate the APA and whether President Biden upon signing EO 13990, violated the separations of powers clause of the United States Constitution. The Court has the authority to enjoin federal agencies from implementing a rule—mandated by an executive order or not—that violates the APA or violates the separation of powers clause."

    Setting aside the illiterate references to a "separation of powers clause", how in your view does the quoted excerpt refute Prof. Asker's point?

    1. I think it's pretty clear how it refutes Adler, an executive order can't tell an agency to do what congress forbids. The EO can't be struck, but the rule that follows the EO, and ignores the law can be invalidated.

      1. "an executive order can't tell an agency to do what congress forbids."

        Perhaps you mean, "isn't supposed to"?

      2. Then you don't disagree with Adler, he's pointing out that the judge is trying to pre-emptively block the rules from even being issued. Adler never says the rules can't be challenged.

  12. I think Adler's PS perfectly illustrates what a fiction his and the Administration's argument is that the rule is only interim:

    "P.S. In the meantime, the New York Times reports, this ruling is slowing a wide range of agency actions..."

    Its because there are hundreds of not thousands of permitting decisions that are using this interim rule to decide whether to issue the permit or the conditions.

    Those permitting decisions are final agency actions, and they are using the 2021-SCC to make the decision.

    If the Biden Administration was not having to revise the basis of the permitting decisions then there wouldn't be a delay.

    The court decision itself lists probably a dozen final agency actions that are based on the 2021-SCC, it's a dishonest splitting of hairs to claim that because that cost could change in the future, for new permitting decisions, that they are not final.

    1. Adjudications being final, but using an interim rule are not some new thing.

  13. We look it up, and Judge Cain is....a Trump appointee! What a shock.

    1. I hope you aren't trying to convince me that it wouldn't be all bad if Trump ran and won again in '24, because that's just the sort of argument that could work.

      1. How about Trump's praising of Putin's invasion of the Ukraine?

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