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States’ Opening Attack on Biden Climate Agenda Faces Hurdles

March 10, 2021, 7:26 PM

A new legal attack on the Biden administration’s climate agenda is an aggressive opening shot from Republican attorneys general set to become the president’s persistent courtroom foes, but the case faces steep procedural hurdles.

Outside lawyers say the 12 states challenging President Joe Biden’s executive order addressing the cost of greenhouse gases may have filed their lawsuit too early, making it more effective as a messaging tool than a legal one.

“This lawsuit is premature,” Georgetown University law professor William W. Buzbee said. “What will matter will be final agency actions actually taken that may or may not use this social cost of carbon in a particular way.”

The social cost of greenhouse gases is an analytical tool used by many agencies to calculate the impacts of their actions by putting a price on emissions of carbon dioxide, methane, and other gases. The Trump administration slashed the values, assigning a lower cost to emissions.

An interagency working group restored Obama-era values last month, responding to Biden’s Jan. 20 executive order requiring a fresh look. The new multistate lawsuit, led by Missouri Attorney General Eric Schmitt, says the move is an illegal expansion of federal regulatory power.

Absent from the coalition are several states that typically led challenges to environmental policies during the Obama years, including West Virginia and Texas.

Too Soon?

Challenges to executive orders are inherently tricky because the directives generally leave specific actions to federal agencies—making it tough for litigants to show an order itself has harmed them.

“I could see courts looking at this and saying, ‘It’s not ripe. It hasn’t been applied by anyone yet. Let’s wait and see what happens,’” said Crowell & Moring LLP’s Thomas A. Lorenzen, a former Justice Department lawyer.

Challengers could instead hold their fire until agencies incorporate the reworked social cost of greenhouse gases into decisions, Lorenzen and other lawyers said, allowing a judge to analyze exactly how the tool is used and supported in a rulemaking process or other federal action.

Biden’s executive order, like most White House directives, closes with boilerplate caveats that it doesn’t create any enforceable rights and that agencies should follow applicable law when implementing it. That will be the government’s go-to defense to any lawsuit that targets an executive order, said Hunton Andrews Kurth LLP’s Matthew Z. Leopold, general counsel for the Environmental Protection Agency during the Trump administration.

Many previous challenges to executive orders have fallen short. Public interest groups and a coalition of Democratic attorneys general, for example, challenged a 2017 order from President Donald Trump directing agencies to scrap two regulations for every new one created. Their cases failed after a federal judge determined they hadn’t tied their alleged injuries to the order.

Still, executive order lawsuits aren’t impossible, Leopold said, noting that challengers were able to get some traction against other Trump-era actions, including the travel ban.

Separation of Powers

The Missouri-led challenge to Biden’s climate order also includes an ambitious constitutional claim that could face headwinds in court, according to outside lawyers.

The complaint accuses the Biden administration of violating the Constitution’s separation of powers by having the executive branch perform a “policy-laden” task that should be left to Congress. It also touches on the nondelegation doctrine—the principle attracting increasing interest from the Supreme Court in recent years that Congress can’t turn over lawmaking authority to agencies.

“It seems to me a long shot under existing law because we do allow the federal agencies to make so many of these policy-laden judgmental decisions about costs and benefits and what is protective and what is not,” Lorenzen said.

The social cost of greenhouse gases metric has often faced technical and policy critiques in the past, but the states’ constitutional arguments appear to be a new line of attack, said Vinson & Elkins LLP’s Corinne Snow, a Justice Department lawyer under Trump. “I’m not sure we’ve seen a case before where someone argues that the agencies can’t consider it,” she said.

Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, called the states’ arguments “hyperbolic.”

“The social cost of carbon does not regulate anything, it is a tool that can help inform agencies when executing their statutorily given regulatory authority,” she said, adding that even the Trump administration used the tool, albeit with lower values, in its analyses.

Fresh Lineup

The states’ challenge to the Biden administration’s climate order is also notable for who’s not included—a lineup of attorneys general some lawyers are puzzling over.

“I would have expected to see Patrick Morrisey of West Virginia on this, I would have expected to see Texas on a case like this,” Lorenzen said. “So their absence from the case is notable. I’m not sure if it actually means anything.”

West Virginia and Texas led the biggest legal challenges to environmental policies during the Obama administration. North Dakota, which also spearheaded cases in that era, is also not part of this week’s case—though another frequent leader, Oklahoma, is involved.

Other plaintiff states are Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, South Carolina, Tennessee, and Utah.

“If they bring these suits and they’re quickly dismissed that will be embarrassing for the states that bring the suits,” Georgetown’s Buzbee said. “A well-counseled state would probably wait and see if there is a stronger challenge that could be brought.”

Representatives for attorney general offices in West Virginia and Texas didn’t respond to questions about the lawsuit. Lawyers for Missouri, which led the filing, also didn’t respond.

Leopold, the former EPA lawyer, questioned the significance of some states’ absence from the case.

“The tent of attorneys general who want to challenge executive actions or regulations has expanded,” he said. “That’s how I read it.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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