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Judge Questions Biden’s Authority Over ‘Social Cost of Carbon’

Dec. 7, 2021, 10:03 PM

A Louisiana federal judge seemed unsure Tuesday whether President Joe Biden had the authority for an executive order directing agencies to use interim estimates on the social costs of greenhouse gas emissions.

The estimates at issue calculate the cost of increased carbon, nitrous oxide, and methane emissions. Biden’s executive order issued in January said agencies “shall use” those estimates when “monetizing the value of changes in greenhouse gas emissions resulting from regulations and other relevant agency actions” until the final estimates are issued.

Western District of Louisiana Judge James D. Cain Jr. questioned during a hearing whether Biden “overstepped his bounds” by asking agencies to take global damages into account.

“I’m not sure if it crossed the line constitutionally,” he said.

Louisiana, Alabama, and eight other states argue Congress should act first. The executive order and the estimates are “completely ultra vires,” or outside the president’s authority, said Louisiana Department of Justice attorney Joseph St. John.

The federal government argues that the states’ claims are premature and that they should wait until an agency actually uses the estimates to challenge that action. The U.S. Department of Justice is asking everyone to “play whack-a-mole,” according to St. John.

“When the president doesn’t have the authority to do this, you don’t have to play whack-a-mole,” he told the judge.

The interagency working group that published the interim estimates is trying to confront the problem of the long-term effects of greenhouse gas emissions, DOJ attorney Cody Knapp told the court. Emissions in China will have an impact over time on the U.S. just as emissions from the U.S. may eventually impact the U.K., Knapp said.

Knapp said there may be a future executive order that advises agencies on how to use the final estimates. When asked by Cain when the final estimates will be issued, Knapp said the executive order contemplates January 2022 but didn’t give an exact date.

The uncertain timing of the final estimates has created a “fluid situation,” Cain said.

DOJ attorneys suggested that Cain issue an order directing the estimates to be nonbinding. But attorneys representing the states said this idea was a trap, because a court can’t rewrite what the executive did, and Cain agreed.

Missouri, Alaska, and 11 other states filed a similar lawsuit over the estimates, but the Eastern District of Missouri said in August that the states’ claims were premature. An appeal filed by the states in the U.S. Court of Appeals for the Eighth Circuit is ongoing.

“I found that really at the end of the day, the can was kicked down the road a little bit” in the Missouri case, Cain said.

Consovoy McCarthy PLLC also represents Louisiana and other states.

The case is Louisiana v. Biden, W.D. La., No. 2:21-cv-01074, 12/7/21.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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