Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 1 of 44 PageID #: 4143
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`LAKE CHARLES DIVISION
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`
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`STATE OF LOUISIANA ET AL
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`VERSUS
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`JOSEPH R BIDEN JR ET AL
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`CASE NO. 2:21-CV-01074
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`JUDGE JAMES D. CAIN, JR.
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`MAGISTRATE JUDGE KAY
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`MEMORANDUM RULING
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`Before the Court is a “Motion for Preliminary Injunction” (Doc. 53) filed by the
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`
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`States of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota,
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`Texas, West Virginia, and Wyoming (collectively referred to as the “Plaintiff States”). The
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`Plaintiff States move pursuant to Rule 65 of the Federal Rules of Civil Procedure for a
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`preliminary injunction against Defendants Joseph R. Biden, Jr., Cecilia Rouse, Shalanda
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`Young, Kei Koizumi, Janet Yellen, Deb Haaland, Tom Vilsack, Gina Raimondo, Xavier
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`Becerra, Pete Buttigieg, Jennifer Granholm, Brenda Mallory, Michael S. Regan, Gina
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`McCarthy, Brian Deese, Jack Danielson, U.S. Environmental Protection Agency, U.S.
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`Department of Energy, U.S. Department of Transportation, U.S. Department of
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`Agriculture, U.S.
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` Department of Interior, National Highway Traffic Safety
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`Administration, and the Interagency Working Group on Social Cost of Greenhouse Gases
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`(hereinafter collectively referred to as “Defendants”).
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`Plaintiff States also move to make the Order effective immediately and to remain in
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`effect pending the final resolution of this case, or until further orders of this Court, the
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`United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.
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`I.
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`BACKGROUND
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`On April 22, 2021, the Plaintiff States filed a Complaint [doc. 1] against the
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`Government Defendants seeking declaratory and injunctive relief as a result of Executive
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`Order 13990 (“EO 13990”). EO 13990 reinstated the Interagency Working Group (“IWG”)
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`on Social Costs of Greenhouse Gas Emissions (“SC-GGE”) and ordered the IWG to
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`publish Interim Estimates for the Social Cost of Carbon, Nitrous Oxide, and Methane
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`(collectively referred to as “SC-GHG Estimates”) for agencies to use when monetizing the
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`value of changes in greenhouse gas emissions resulting from regulations and other relevant
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`agency actions. EO 13990 provides as follows:
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`Accounting for the Benefits of Reducing Climate Pollution
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`(a) It is essential that agencies capture the full costs of greenhouse gas emissions as
`accurately as possible, including by taking global damages into account. Doing
`so facilitates sound decision-making, recognizes the breadth of climate impacts,
`and supports the international leadership of the United States on climate issues.
`The “social cost of carbon” (SCC), social cost of nitrous oxide” (SCN), and
`“social cost of methane” (SCM) are estimates of the monetized damages
`associated with incremental increases in greenhouse gas emissions. They are
`intended to include changes in net agricultural productivity, human health,
`property damage from increased flood risk, and the value of ecosystem services.
`An accurate social cost is essential for agencies to accurately determine the
`social benefits of reducing greenhouse gas emissions when conducting cost-
`benefit analyses of regulatory and other actions.
`
`(b) There is hereby established an Interagency Working Group on the Social Cost
`of Greenhouse Gases (the “Working Group”). The Chair of the Council of
`Economic Advisers, Director or OMB, and Director of the office of Science and
`Technology Policy shall serve as Co-Chairs of the Working Group.
`
`(i) Membership. The Working Group shall also include the following other
`officers, or their designees: the Secretary of the Treasury; the Secretary
`of the Interior; the Secretary of Agriculture; the Secretary of Commerce;
`the Secretary of Health and Human Services; the Secretary of
`Transportation; the Secretary of Energy; the Chair of the Council on
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`Environmental Quality; the Administrator of the Environmental
`Protection Agency; the Assistant to the President and National Climate
`advisor; and the Assistant to the President for Economic Policy and
`director of the National Economic council.
`(ii) Mission and Work. The Working Group shall, as appropriate and
`consistent with applicable law:
`
`(A) 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;
`
`
`(B)
`
`
`(C)
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`Publish a final SCC, SCN, and SCM by no later than January 2022;
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`Provide recommendations to the President, by no later than September 1,
`2021, regarding areas of decisions-making, budgeting, and procurement by
`the Federal Government where the SCC, SCN, and SCM should be applied;
`
`
`(D) Provide recommendations, by no later than June 1, 2022, regarding a process
`for reviewing, and, as appropriate, updating, the SCC, SCN, and SCM to
`ensure that these costs are based on the best available economics and science;
`and
`
`
`(E)
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`
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`Provide recommendations, to be published with the final SCC, SCN, and
`SCM under subparagraph (A) if feasible, and in any event by no later than
`June 1, 2022, to revise methodologies for calculating the SCC, SCN, and
`SCM, to the extent that current methodologies do not adequately take
`account of climate risk, environmental justice, and intergenerational equity.
`
`(iii) Methodology. In carrying out its activities, the working Group shall
`consider the recommendations of the National Academies of Science,
`Engineering, and Medicine as reported in Value Climate Damages: Updating
`Estimation of the Social Cost of Carbon Dioxide (2017) and other pertinent
`scientific literature; solicit public comment; engage with the public and
`stakeholders; seek the advice of ethics experts; and ensure that the SCC, SCN,
`and SCM reflect the interests of future generations in avoiding threats posed by
`climate change.
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`1.
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`ISSUES BEFORE THE COURT
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`The Plaintiff States seek injunctive and declaratory relief on three grounds. First,
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`they assert that the SC-GHG Estimates violate the procedural requirements of the
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`Administrative Procedure Act (“APA”) as a substantive rule that did not undergo the
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`requisite notice-and-comment process. See 5 U.S.C. § 553. Second, the Plaintiff States
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`claim that President Biden, through EO 13990, and the IWG lack the authority to enforce
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`the estimates as they are substantively unlawful under the APA and contravene existing
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`law. See 5 U.S.C. § 706(2)(A)–(C). Third, the Plaintiff States maintain that the Government
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`Defendants acted beyond any congressional authority by basing regulatory policy upon
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`global considerations.
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`The Plaintiff States request a preliminary injunction: (1) ordering Defendants to
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`disregard the SC-GHG Estimates and prohibiting them from adopting, employing, treating
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`as binding, or relying upon the work product of the Interagency Working Group (“IWG”);
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`(2) enjoining Defendants from independently relying upon the IWG’s methodology
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`considering global effects, discount rates, and time horizons; and (3) ordering Defendants
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`to return to the guidance of Circular A-4, explained infra, in conducting regulatory
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`analysis.
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`The issues presently before the Court are: (1) whether the Plaintiff States satisfy the
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`doctrine of standing; (2) whether the Plaintiff States assert claims subject to judicial review
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`under the APA; and (3) whether the Plaintiff States satisfy the requirements to obtain a
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`preliminary injunction.
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`
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`To be clear, the Court is ruling only on the actions of the federal agencies and
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`whether the agencies, by implementing the estimates and considering global effects—
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`violate the APA and whether President Biden upon signing EO 13990, violated the
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`separations of powers clause of the United States Constitution. The Court has the authority
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`to enjoin federal agencies from implementing a rule—mandated by an executive order or
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`not—that violates the APA or violates the separation of powers clause. Importantly, the
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`Court is not opining as to the scientific issues regarding greenhouse gas emissions, their
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`effects on the environment, or whether they contribute to global warming.
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`HISTORY OF THE ADMINISTRATIVE PROCEDURE ACT AND
`2.
`CIRCULAR A-4
`
`
`(i)
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`The Administrative Procedure Act and Circular A-4
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`
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` The Administrative Procedure Act (“APA”) is one of the foremost checks on the
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`“growth of the Executive Branch [.]” Free Enterprise Fund v. Pub. Co. Accounting
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`Oversight Bd., 561 U.S. 477, 499 (2010). The APA mandates that agencies take action only
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`pursuant to express legal authority, in a transparent manner, with opportunity for public
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`input, in a nonarbitrary manner, and with judicial review. See Texas v. U.S., 809 F.3d 134
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`(5th Cir. 2015).
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`
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`Another check on the growth of the Administrative State is the consensus on
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`cost/benefits analysis required by Presidents Nixon, Ford, Carter, Reagan and Clinton. See
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`Nina A. Mendelson & Jonathan B. Wiener, Responding to Agency Avoidance of OIRA, 37
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`Harv. J.L & Pub. Pol’y 447, 454–57 (2014). President Clinton issued Executive Order
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`12866, which instructs agencies to “assess all costs and benefits of available regulatory
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`alternatives, including the alternative of not regulating” when “deciding whether and how
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`to regulate.” 1
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`
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`In 2003, President George W. Bush’s Office of Management and Budget issued
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`Circular A-4 to implement EO 12866 and ensure agencies use a “standardiz[ed]” way of
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`“measur[ing] and report[ing]” the “benefits and costs of Federal regulatory actions.”2
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`Circular A-4 has become the cornerstone of regulatory analysis in the Executive Branch.3
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`Circular A-4 provides “highly detailed guidance to the agencies on the key elements
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`of a ‘good regulatory analysis’ under EO 12866—specifically it includes a clear baseline
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`for comparative purposes, specifically states assumptions, an assessment of the sensitivity
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`of the analytical results to changes in those assumptions, and attention to ancillary
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`impacts.” Mendelson & Wiener, supra, at 457—58. Relevant to this litigation, Circular A-
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`4 contains two key instructions: (1) agencies are to use both 3 and 7 percent discount rates
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`when conducting regulatory cost/benefit analysis; and (2) agencies are to consider
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`domestic, rather than global, costs and benefits.4
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`Discount factors are used to adjust the estimated benefits and costs for differences
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`in timing. The further in the future the benefits and costs are expected to occur, the more
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`they should be discounted.5 “When, and only when, the estimated benefits and costs have
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`been discounted, they can be added to determine the overall value of net benefits.”6
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`
`1 Plaintiffs’ exhibit 1 attached to St. John Declaration Doc. 55.
`2 Id. attached as exhibit 5, Circular A-4, p. 1.
`3 Anne E. Smith, Ph.D. Declaration, ¶ ¶ 18-19, Doc. 56.
`4 Plaintiff’s exhibit 5, Circular A-4.
`5 Id. p. 32.
`6 Id.
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`Prior to Circular A-4, the Executive Branch used a 7 percent discount rate because
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`it “reflects the returns to reals estate and small business capital as well as corporate capital”7
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`and “approximates the opportunity cost of capital, and it is the appropriate discount rate
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`whenever the main effect of a regulation is to displace or alter the use of capital in the
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`private sector.”8 In certain circumstances a lower discount rate may be appropriate,
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`therefore Circular A-4 instructs agencies to “provide estimates of net benefits using both 3
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`and 7 percent.”9
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`The second instruction in Circular A-4 requires agencies to make domestic effects
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`the basis of their analysis.10 See Wyoming v. United States Dep’t of the Interior, 2020 WL
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`7641067 at *21 (D. Wyo. Oct. 8, 2020) (noting that Circular A-4 mandates a national
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`focus): States v. Bureau of Land Mgmt., 286 F.Supp.3d 1054, 1069 (N.D. Cal. 2018)
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`(“While Plaintiff argue that the same Circular directs BLM to encompass ‘all the important
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`benefits and costs likely to result from the rule,’ including ‘any important ancillary
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`benefits,’ it does not specifically mandate that agencies consider global impacts.”)
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`(ii) The Social Cost of Greenhouse Gases
`
`
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`Carbon dioxide, methane, and nitrous oxide, also referred to as greenhouse gases11
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`are ever-present byproducts that are produced by activity from energy production to
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`agriculture to waste disposal.
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`
`
`7 Id.
`8 Id.
`9 Id. at p. 34.
`10 “Your analysis should focus on benefits and costs that accrue to citizens and residents of the United States. Where
`you choose to evaluate a regulation that is likely to have effects beyond the borders of the United States, these
`effects should be reported separately.” Id. at p. 15.
`11 Gases that trap heat in the atmosphere are called greenhouse gases. Exhibit 42 attached to Plaintiffs’ exhibit 1, p.
`2, St. John Declaration. Doc. 55-42.
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`Carbon dioxide is produced from burning fossils fuels such as coal, natural gas, and
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`oil, and solid wastes, trees, chemical reactions,12 and other biological materials.13 Carbon
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`dioxide is removed from the atmosphere when it is absorbed by plants as part of the
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`biological carbon cycle.14
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`Methane is emitted during the production and transport of coal, natural gas, and oil.
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`Methane emissions also result from livestock and other agricultural practices, land use and
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`by the decay of organic waste in municipal solid waste landfills.15
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`Nitrous oxide is emitted during agricultural practices, land use, industrial activities,
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`combustion of fossil fuels and solid waste, as well as during treatment of wastewater.16
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`Fluorinated gases
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`include hydrofluorocarbons, perfluorocarbons,
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`sulfur
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`hexafluoride, and nitrogen trifluoride. They are synthetic, powerful greenhouse gases
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`emitted from a variety of industrial process. These gases are typically emitted in smaller
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`quantities, but because they are potent greenhouse gases, they are sometimes referred to as
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`High Global Warming Potential (“High GWP gases”).17
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`Each gas’s effect on climate change depends upon: (1) how much is in the
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`atmosphere; (2) how long they stay in the atmosphere; and (3) how strongly they impact
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`the atmosphere.18
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`
`
`
`
`
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`12 E.g., manufacture of cement.
`13 Exhibit 42 attached to Plaintiffs’ exhibit 1, St. John Declaration.
`14 Id.
`15 Id.
`16 Id.
`17 Id.
`18 Id.
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`
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`(iii) President Obama’s role
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`
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`In 2009, President Obama convened an Interagency Working Group (“IWG”) to
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`establish estimates of the social cost of carbon (“SCC”) that all agencies must use in their
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`regulatory cost/benefit analysis. In the Spring of 2010, the IWG presented final SCC
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`estimates which purported to use Circular A-4 as its starting point but rejected two of its
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`fundamental tenets—the 3 and 7 percent discount rates, and the domestic effects as the
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`basis of their analysis. In 2016, the IWG issued estimates for the Social Cost of Methane
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`(“SCM”) and the Social Cost of Nitrous Oxide (“SCN”).
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`The IWG established by the Obama administration was dismantled by the Trump
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`administration,19 and reinstated by the Biden administration through Executive Order
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`13990, issued on January 20, 2021.
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`(iv) President Biden’s Executive Order 13990
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`
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`On January 20, 2021, President Biden issued Executive Order 13990. 86 Fed. Reg.
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`7037 (Jan. 20, 2021). Section 5 of EO 13990 directs federal agencies to “capture the full
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`costs of greenhouse gas emissions as accurately as possible, including by taking global
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`damages into account.” 86 Fed. Reg. at 7040. Section 5(b)(ii)(A) further provides that “the
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`Working Group shall . . . publish an interim SCC, SCN, and SCM within 30 days of the
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`date of this order, which agencies shall use when monetizing the value of changes in
`
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`19 In 2017, the Trump administration disbanded the IWG, rescinded its technical support documents, and directed
`agencies to return to Circular A-4’s guidance when analyzing the value of changes in greenhouse gas emissions. Exec.
`Order No. 13783, 82 Fed. Reg. 16093 (Mar. 28, 2017).
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`greenhouse gas emissions resulting from regulations and other relevant agency actions until
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`final values are published.” Exec. Order No. 13990, 86 Fed. Reg. 7037, 7040 (Jan. 20,
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`2021).
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`
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`On February 26, 2021, the IWG announced the SC-GHG Estimates as directed by
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`EO 13990 (“Current SC-GHG Estimates”). The Current SC-GHG Estimates are identical
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`to those issued by the Obama Administration in the 2016 Technical Support Document
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`and addendum, adjusted for inflation.
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`(v) Relief sought
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`
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`Plaintiff States move to enjoin and restrain Defendants from:
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`(1) Adopting, employing, treating as binding, or relying upon the work product of
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`the Interagency Working Group, including without limitation, any and all Social
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`Cost of Greenhouse Gas estimates published by the Interagency Working Group;
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`(2) Adopting, employing, treating as binding, or relying upon any Social Cost of
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`Greenhouse Gas estimates based on global effects or that otherwise fails to
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`comply with applicable law;
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`(3) Adopting, employing, treating as binding, or relying upon any estimate of Social
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`Cost of Greenhouse Gases that does not utilize discount rates of 3 and 7 percent
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`or that otherwise does not comply with Circular A-4; and
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`(4) Relying upon or implementing Section 5 of Executive Order 13990 in any
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`manner.
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`
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`II.
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`STANDING
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`
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`The Court must first address the threshold question regarding whether the Plaintiff
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`States have standing to bring this suit.
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`Article III of the Constitution limits the federal courts’ jurisdiction to “Cases” and
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`“Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130,
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`(1992). One “essential and unchanging part of the case-or-controversy requirement” is the
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`doctrine of standing. Id. at 560. The party invoking federal jurisdiction bears the burden of
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`establishing standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 133 S. Ct.
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`1138, 1148, 185 (2013). “In the preliminary-injunction context, plaintiffs must make a
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`‘clear showing’ of standing” to obtain relief. Tex. Democratic Party v. Abbott, 978 F.3d
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`168, 178 (5th Cir. 2020) cert. denied, 141 S.Ct. 1124 (2021); see Tex. All. for Retired Ams.
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`v. Hughs, 976 F.3d 564, 567 n.1. (5th Cir. 2020) (contrasting the ordinary showing of
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`standing as opposed to what is required to maintain a preliminary injunction”).
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`Accordingly, plaintiffs must satisfy the three elements that constitute “the irreducible
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`constitutional minimum of standing”: (1) injury in fact; (2) causal connection (the injury
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`has to be fairly traceable to the challenged action); and (3) redressability (the injury must
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`be likely, as opposed to merely speculative that it will be redressed by a favorable decision).
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`Lujan, 504 U.S. at 560. “[T]he presence of one party with standing is sufficient to satisfy
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`Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad. &
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`Institutional Rights, Inc., 547 U.S. 47, 52 n.2, 126 S. Ct. 1297 (2006). Yet, “a plaintiff must
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`demonstrate standing for each claim he seeks to press and for each form of relief that is
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`sought.” Town of Chester v. Laroe Estates, Inc., __ U.S. __, 137 S. Ct. 1645, 1650 (2017)
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`(citation omitted).
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`
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`Importantly, “states are not normal litigants for the purposes of invoking federal
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`jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 526, 127 S. Ct. 1438 (2007).
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`Accordingly, the presumption of “special solicitude” may be available to a state “exercising
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`a procedural right created by Congress and protecting a quasi-sovereign interest.” Texas v.
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`United States, 809 F.3d 134, 162 (5th Cir. 2015).
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`1. Injury in fact
`
`
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`To satisfy the injury-in-fact requirement, the Plaintiffs must show that they
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`“suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
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`and ‘actual or imminent, not conjectural and hypothetical.’” Spokeo, Inc. v. Robins, 578
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`U.S. 856, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560. Allegations of
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`“future injury may suffice if the threatened injury is ‘certainly impending’ or there is a
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`‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S.
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`149, 158, 134 S. Ct. 2334 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5,
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`133 S. Ct. 1138 (2013)).
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`Plaintiff States allege direct injury to their sovereign, fiscal, procedural, and parens
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`patriae interests. As to their sovereign interests, Plaintiff States claim that they are directly
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`injured by the Government Defendants’ alteration of cooperative federalism programs.
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`Specifically, they contend that the SC-GHG Estimates impose new obligations on them
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`when they participate in cooperative federalism programs. The Fifth Circuit has
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`recognized that this type of “increased regulatory burden typically satisfies the injury in
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`fact requirement.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th
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`Cir. 2015).
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`To establish direct injury, Plaintiff States assert that: (1) they are substantial
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`producers of energy and rely upon tax revenue from energy production to perform their
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`sovereign duties; (2) the SC-GHG Estimates will impose additional duties upon Plaintiff
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`States when they implement cooperative federalism programs; and (3) the SC-GHG
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`Estimates will harm Plaintiff States’ ability to purchase affordable energy to carry out their
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`sovereign functions.
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`Plaintiffs States argue that the increased SC-GHG Estimates will necessarily cause
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`regulatory standards for air quality, energy efficiency, and power plant regulation to
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`become more stringent and result in significant costs increases.20 Moreover, this increased
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`stringency will directly harm the economies and revenues of Plaintiff States.
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`For example, the SC-GHG Estimates will directly harm Louisiana’s energy,
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`chemical manufacturing, and agricultural industries by increasing their regulatory burdens
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`and driving up the price of electricity that these businesses need to stay in business and
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`continue to employ Louisianians and contribute to tax revenues.21 The SC-GHG Estimates
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`will harm Louisiana, the nation’s number two oil producer and a top five national natural
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`20 See Smith Decl. ¶ ¶ 85092; Dismukes Decl. ¶ 23 (“The use of unsupported SC-GHG estimates in NEPA and other
`regulatory analysis will result in the approval of new regulations that will impose significant costs on Louisiana’s
`economy and business that are not justified by an accurate assessment of their costs and benefits.”)
`21 Dismukes Decl. ¶ ¶ 22-26.
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`gas producer,22 resulting in significantly reduced royalties from leasing sales under Outer
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`Continental Shelf Act (“OCSLA”).
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` The SC-GHG will directly harm Kentucky’s economic welfare,23 as demonstrated
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`by the Obama Administration’s SCC-justified Clean Power Plan by making a new CPP
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`justifiable under cost/benefit analysis principles. The SC-GHG will harm Alabama’s
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`ability to exploit its energy resources and harm its industrial sector, and Florida’s tourism
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`industry by driving up the transportation costs and energy prices.24
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`Plaintiff States also allege that the SC-GHG Estimates impose additional duties on
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`them when carrying out cooperative federalism programs because they are compelled to
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`employ the IWG’s methodology as a condition of approving significant funding and State
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`environmental implementation plans. For example, states must comply with federal
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`standards in programs such as the National Ambient Air Quality Standards (“NAAQS”),
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`42 U.S.C. § 7410. Under that statute, it is the states’ burden “to propose plans adequate for
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`compliance with NAAQS.” E.P.A. v. EME Homer City Generation, L.P., 572 U.S. 489,
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`498, 134 S. Ct. 1584 (2014). Plaintiff States assert that the EPA has instructed that NAAQS
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`are now required to be set based on the IWG’s SC-GHG Estimates.25 Likewise, the states
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`must use the SC-GHG Estimates or risk having their state implementation plans
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`disapproved. Yet, even if a state implementation plan is disapproved by the EPA, the EPA
`
`
`22 See U.S. Energy Info. Admin., “Louisiana: State Profile and Energy Estimates” (updated Apr. 15, 2021). (St. John
`Dec. Ex. 30).
`23 Kentucky is one of the top coal-producing states. See U.S. Energy Information Administration, “Coal FAQ” (St.
`John Decl. Ex. 32).
`24 See U.S. Energy Info. Admin., “Florida: State Profile and Energy Estimates” (updated Nov. 19, 2020) (St. John
`Decl. Ex. 33).
`25 See Doc. 1 at 45–46, ¶124.
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`will impose a federal implementation plan upon the state—which also must be based upon
`
`the SC-GHG Estimates. 26
`
`Defendants challenge Plaintiff States assertion of the use of the SC-GHG Estimates
`
`by the NAAQS, and argue that there are no NAAQS for greenhouse gases, see Utility Air
`
`REgul. Grp. v. EPA, 573 U.S. 302, 308 (2014) (listing the “six pollutants” for which “EPA
`
`has issued NAAQS”). Plaintiff States offer no explanation of how the SC-GHG Estimates
`
`would be used in setting or revising NAAQS for non-greenhouse-gas pollutants.
`
`The SC-GHG Estimates will directly harm Georgia’s industrial sector by increasing
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`stationary source regulatory stringency.27 The SC-GHG Estimates will directly harm
`
`Mississippi’s energy infrastructure including its petroleum refinery, natural gas processing
`
`plant and LNG terminal.28 The SC-GHG Estimates will directly harm South Dakota’s
`
`industrial and agricultural capacities.29 The SC-GHG Estimates will directly harm Texas,
`
`the nation’s leading energy producer.30 The SC-GHG Estimates will be fatal to West
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`Virginia’s economy, the fifth-largest energy producer in the nation—specifically its coal
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`industry as realized by the Obama administration’s CPP.31 The SC-GHG will directly harm
`
`
`
`26 Doc. 1 at 45–46, ¶¶123–125.
`27 See U.S. Energy Info. Admin., Georgia: State Profile and Energy Estimates” (updated Nov. 19, 2020) (St. John
`Dec. Ex. 34).
`28 See U.S. Energy Info. Admin., “Mississippi: State Profile and Energy Estimates” (updated July 16, 2020) (St.
`John Decl. Ex. 35).
`29 See U.S. Energy Info. Admin., South Dakota: State Profile and Energy Estimates” (updated Apr. 16, 2020) (St.
`John Dec. Ex. 36).
`30 See U.S. Energy Info. Admin., “Texas: State Profile and Energy Estimates” (updated Apr. 15, 2021) (St. John
`Decl. Ex. 37).
`31 See U.S. Energy Info. Admin., “West Virginia: State Profile and Energy Estimates” (updated Oct. 15, 2020) (St.
`John Decl. Ex. 38).
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`Wyoming, the largest net energy supplier in the nation and a major producer of coal, natural
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`gas, and oil.32
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`The Plaintiff States argue that the harms to these States are imminent and directly
`
`traceable to EO 13990 and the SC-GHG Estimates. The Plaintiff States remark that the
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`chain of causation is clear and confirmed by history: agencies will apply EO 13990’s
`
`unambiguous command to apply the IWG’s unlawful SC-GHG Estimates in a manner that
`
`will harm Plaintiff States’ legally cognizable interests.
`
`Defendants maintain that Plaintiff States have failed to affirmatively show an
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`Article III injury to establish standing. Plaintiff States insist that the Executive Branch is
`
`employing the SC-GHG Estimates in a range of rulemaking across statutory regimes.
`
`Plaintiff States provide the following examples of final rules using the SC-GHG to increase
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`costs in various industries:
`
`• EPA, Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas
`Emissions Standards, 86 Fed. Reg. 74434 (Dec. 30, 2021).33 Defendants remark
`that EPA explained that it “is not required to conduct formal costs benefit
`analysis to determine the appropriate standard under Section 202” of the Clean
`Air Act, and that “analysis of monetized GHG was not material to its decision.
`In summation, “the decisions reached and standards put in place do not depend
`on the 2021 SC-GHG interim estimates.” EPA, Revised 2023 and Later Model
`Year Light-Duty Vehicle GHG Emissions Standards: Response to Comments
`(Dec. 2021), https://perma.cc/RX8S-FFPJ.
`
`• DOE, General Service Lamps, 86 Fed. Reg. 70755 (Dec. 13, 2021).34
`
`
`32 See U.S. Energy Info. Admin., “Wyoming: State Profile and Energy Estimates” (updated Mar. 18, 2021) (St. John
`Decl. Ex. 39).
`33 Plaintiff’s exhibit 1, Daigle Decl. (This rule will impose unprecedented costs on the American auto industry;
`specifically, the EPA’s estimate of benefits “include[d] climate-related economic benefits from reducing emissions
`of GHG’s that contribute to climate change” based on the SC-GHG Estimates). Id. at 74443.
`34 Plaintiffs’ exhibit 2, Daigle Decl. at 70768. (This proposed rule employs the SC-GHG Estimates in calculating
`benefits).
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`• EPA, Oil and Gas New Modified Sources, 86 Fed. Reg. 63110 (Nov. 15, 2021).35
`
`• Bureau of Land Management (BLM), Fact Sheet: analyzing the effects of fossil
`fuel leasing and development on greenhouse gases (Oct. 29, 2021).36
`
`• DOE, Manufactured Housing, 86 Fed. Reg. 59042 (October 26, 2021).37
`
`• Federal Acquisition Regulatory Council (FAR), Minimizing Climate Change in
`Federal Acquisitions, 86 Fed. Reg. 57404 (October 15, 2021).38
`
`• Council on Environmental Quality (CEQ), NEPA Implementing Regulations
`Revisions, 86 Fed. Reg. 55757 (Oct. 7, 2021).39
`
` EPA, Phasedown of Hydrofluorocarbons, 86 Fed. Reg. 55116 (Oct. 5, 2021).40
`Defendants contend that EPA did not rely on the SC-GHG Estimates, and the
`proposed rule explained that it would implement an explicit congressional
`command in the American Innovation and Manufacturing Act of 2020, Pub. L.
`No. 116–260, 134 Stat. 1182 (codified at 42 U.S.C. § 7675), which “directs EPA
`to address HFCs by providing new authorities” to “phase down the production
`and consumption of listed HFCs” on a “schedule prescribed by Congress.” 86
`Fed.Reg. at 27,153, 27,159.
`
` •
`
`
`
`The Court is concerned that Defendants’ arguments are somewhat misleading
`considering that the following statement is made in the Regulatory Impact
`
`
`35 Plaintiffs’ exhibit 3, Daigle Decl. (EPA uses SC-GHG Estimates in proposing stricter standards on GHG
`emissions for the oil and gas industry; the effect is billions of dollars of compliance costs).
`36 Plaintiffs’ exhibit 4, Daigle Decl. (The BLM issues a fact sheet and announced a “[s]tandardized methodology for
`consideration of the social cost of greenhouse gases in lease sales.” Id., at 1. The fact sheet relies on the SC-GHG
`Estimates and the Executive Order—“BLM’s analysis uses the interim estimates of the social costs of carbon,
`methane and nitrous oxide published by the IWG in February 2021.) Id. at 2.
`37 Plaintiffs’ exhibit 5. (DOE explicitly relies on the Executive Order and Estimates in determining whether the rule
`is justified; “DOE calculates