The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Climate Change

Eighth Circuit Affirms Dismissal of State Suit Against Social Cost of Carbon

Another appellate court recognizes that federal courts lack jurisdiction to consider legal challenges to the Biden Administration's Social Cost of Carbon estimates.


Today, the U.S. Court of Appeals for the Eighth Circuit affirmed a district court's dismissal of Missouri v. Biden, in which several states sought to enjoin the Biden Administration's use of interim estimates of the Social Cost of Carbon (i.e. the costs of greenhouse gas emissions) in agency proceedings. This decision was unsurprising and accords with the conclusion reached by the U.S. Court of Appeals for the Fifth Circuit in a parallel suit.

The Eighth Circuit's opinion by Judge Loken is short and to the point. It quickly and efficiently dispatches with Missouri's attempts to demonstrate standing to challenge an estimate approved by a working group (the IWG) that may, at some future date in a future proceeding, influence a final agency action, such as a permitting decision or a new regulation. While Missouri and the other plaintiff states might well have standing to challenge such actions when they occur, Judge Loken explains that the effort to shallenge the social cost of carbon up front is, (in the words of the Fifth Circuit) an attempt to force "the current administration to comply with prior administrations' policies on regulatory analysis [without] a specific agency action to review," and that is something beyond the power of federal courts. Further, Judge Loken notes, the states are also, in effect, asking the Court to prevent a President from directing the policies of executive branch agencies.

we reject the States' broad contention that the IWG's SC-GHG estimates are invalid because the IWG possesses "no delegation of any legislative authority" by Congress. The IWG was formed by the President to communicate his policies to agencies in exercising their delegated legislative authority. We may not prohibit this sensible exercise of the President's executive power.

Missouri and the other plaintiff states alleged "a host of economic, sovereign, and procedural injuries," none of which hold up. The biggest problem, as suggested above, is that the IWG's Social Cost of Carbon estiamte does not, by itself, cause any cognizable injuries, and is not certain to cause any such injuries in the future, as the estimates (even if relied upon by agencies as the President has instructed), will be one of multiple factors influencing agency decisions, and it will be actual agency decisions about discrete matters that will be the source of any injury the states ultiamtely suffer. Further, insofar as the IWG's Social Cost of Carbon estimate is arbitrary or unfounded, that can be challenged if and when the estimate forms part of the basis of an actual agency action.

Judge Loken concludes:

The Plaintiff States failed to plausibly allege the "irreducible constitutional minimum" of Article III standing—concrete and particularized actual injury in fact that is fairly traceable to defendants' challenged conduct, publication of the interim SC-GHG estimates. The Plaintiff States disagree with the President's policies reflected in the interim SC-GHG estimates, but it is not our role to "exercise general legal oversight of the Legislative and Executive Branches." TransUnion, 141 S. Ct. at 2203. When executive agencies or officials take or propose to take specific actions based on reliance on the interim SC-GHG estimates, E.O. 13990 does not exempt them from complying with statutory duties imposed by the APA, including providing opportunities for notice and comment. And if the States believe that specific agency actions justified by the interim SC-GHG estimates inflict concrete and particularized injury, they may challenge the actions, and the interim SC-GHG estimates themselves, in federal court. See 5 U.S.C. § 706. But the States' "generalized grievance of how the current administration is considering SC-GHG. . . . fails to meet the standards of Article III standing." Louisiana v. Biden, 2022 WL 866282, at *2.

And just as the Supreme Court showed no interest in reviewing the Fifth Circuit's decison in Louisiana v. Biden, it is unlikely to show any interest in reviewing this case either.