The Volokh Conspiracy

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Climate Change

Will the Supreme Court Consider the Social Cost of Carbon?

Not a single judge on the U.S. Court of Appeals for the Fifth Circuit sought to reconsider a stay of a district court opinion barring consideration of the Biden Administration's social cost of carbon estimates.

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Earlier this year, a federal district court in Louisiana enjoined federal agencies from relying upon or considering estimates of the costs of greenhouse gas emissions -- the so-called "Social Cost of Carbon -- developed by an interagency working group. The opinion was a bit of a mess, and was soon stayed by a panel of the U.S. Court of Appeals for the Fifth Circuit.

Unhappy with the stay, Louisiana and the other states that brought the initial suit filed a petition for rehearing en banc. Today that petition was denied in a brief order, which noted that "no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc." In other words, not even one judge on the Fifth Circuit thought the question merited further review.

Undaunted by the latest order, Louisiana Attorney General Jeff Landry proclaimed he will file a petition for certiorari. The underlying case would not appear cert-worthy, particularly as the administrative law questions presented are rather straight-forward and uncontroversial. Universal challenges to agency consideration of the Social Cost of Carbon are premature and beyond the jurisdiction of federal courts unless and until such estimates are relied upon by an agency taking a distinct, discrete action that causes a justiciable injury.

The one wrinkle is that there is another case challenging the Biden Administration's Social Cost of Carbon pending in the U.S. Court of Appeals for the Fifth Circuit. In the unlikely event that the Eighth Circuit reaches a different conclusion about the viability of such suits, then Supreme Court review might be possible.