Case: 4:21-cv-00287-AGF Doc. #: 1 Filed: 03/08/21 Page: 1 of 46 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`No. _______________
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`THE STATES OF MISSOURI, ARIZONA,
`ARKANSAS, INDIANA, KANSAS,
`MONTANA, NEBRASKA, OHIO,
`OKLAHOMA, SOUTH CAROLINA,
`TENNESSEE, and UTAH,
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` Plaintiffs,
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` v.
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`JOSEPH R. BIDEN, JR.,
`in his official capacity as the President of
`the United States of America;
`ROBERT FAIRWEATHER, in his official
`capacity as Acting Director of the Office of
`Management and Budget;
`CECILIA ROUSE, in her official capacity
`as Chair of the Council of Economic
`Advisers;
`KEI KOIZUMI, in his official capacity as
`Acting Director of the Office of Science
`and Technology Policy;
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY;
`JANE NISHIDA, in her official capacity as
`Acting Administrator of the Environmental
`Protection Agency
`U.S. DEPARTMENT OF ENERGY;
`JENNIFER GRANHOLM, in her official
`capacity as Secretary of Energy;
`FEDERAL ENERGY REGULATORY
`COMMISSION;
`RICHARD GLICK, in his official capacity
`as the Chairman of the Federal Energy
`Regulatory Commission;
`U.S. DEPARTMENT OF
`TRANSPORTATION;
`PETER BUTTIGIEG, in his official
`capacity as Secretary of Transportation;
`U.S. DEPARTMENT OF
`AGRICULTURE;
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`TOM VILSACK, in his official capacity as
`Secretary of Agriculture;
`U.S. DEPARTMENT OF THE INTERIOR;
`SCOTT DE LA VEGA, in his official
`capacity as Acting Secretary of the Interior;
`U.S. BUREAU OF LAND
`MANAGEMENT;
`NADA CULVER, in her official capacity as
`acting director of the U.S. Bureau of Land
`Management; and
`INTERAGENCY WORKING GROUP ON
`SOCIAL COST OF GREENHOUSE
`GASES, UNITED STATES
`GOVERNMENT,
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` Defendants.
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`NATURE OF THE ACTION
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`1. Plaintiffs, the States of Missouri, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska,
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`Ohio, Oklahoma, South Carolina, Tennessee, and Utah, bring this action to vindicate the structural
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`separation of powers in the federal government, the most fundamental bulwark of our liberty.
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`“Frequently,” a threat to the separation of powers “will come before the Court clad, so to speak,
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`in sheep’s clothing…. But this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699
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`(1988) (Scalia, J., dissenting).
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`2. Through Section 5 of Executive Order 13990, President Joseph R. Biden, Jr., has arrogated
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`to the Executive Branch the unilateral power to dictate specific values for the “social costs” of
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`greenhouse gases in virtually every regulatory program administered by the federal government.
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`He has done so without any statutory or constitutional authority.
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`3. Setting the “social cost” of greenhouse gases is an inherently speculative, policy-laden, and
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`indeterminate task, which involves attempting to predict such unknowable contingencies as future
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`human migrations, international conflicts, and global catastrophes for hundreds of years into the
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`future. Assigning such values is a quintessentially legislative action that falls within Congress’s
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`exclusive authority under Article I, Section 1 of the Constitution.
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`4. This quintessentially legislative policy has enormous consequences for America’s
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`economy and people. In theory, the Biden Administration’s calculation of “social costs” would
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`justify imposing trillions of dollars in regulatory costs on the American economy every year to
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`offset these supposed costs.
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`5. In practice, President Biden’s order directs federal agencies to use this enormous figure to
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`justify an equally enormous expansion of federal regulatory power that will intrude into every
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`aspect of Americans’ lives—from their cars, to their refrigerators and homes, to their grocery and
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`electric bills. If the Executive Order stands, it will inflict hundreds of billions or trillions of dollars
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`of damage to the U.S. economy for decades to come. It will destroy jobs, stifle energy production,
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`strangle America’s energy independence, suppress agriculture, deter innovation, and impoverish
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`working families. It undermines the sovereignty of the States and tears at the fabric of liberty.
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`6. The Biden Administration’s calculation of such “social costs” of gases such as carbon
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`dioxide and methane is also arbitrary and capricious. Affordable and reliable methods of
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`agricultural and energy production—which these actions would stifle—have global benefits that
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`the Biden Administration studiously ignores. Affordable food and energy production lift millions
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`of people out of poverty, eliminate hunger, promote economic development and opportunity,
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`create millions of jobs, enable innovation and entrepreneurship, encourage industry and
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`manufacturing, promote America’s energy independence, and create the conditions for liberty to
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`flourish. These benefits enrich the entire world, and yet the Biden Administration gave them little
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`or no weight in its calculation of the “social cost” of carbon dioxide, methane, and nitrous oxide.
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`7. The Biden Administration’s actions violate the separation of powers by encroaching on the
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`legislative power that is exclusively vested in Congress through Article I, Section 1 of the U.S.
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`Constitution. The power to regulate is the power to destroy, and our Constitution does not vest in
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`the President the unilateral authority to regulate virtually every aspect of the American economy.
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`PARTIES
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`8. Plaintiff State of Missouri is a sovereign State of the United States of America. Missouri
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`9. Eric S. Schmitt is the 43rd Attorney General of the State of Missouri. Attorney General
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`Schmitt is authorized to bring actions on behalf of Missouri that are “necessary to protect the rights
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`and interests of the state, and enforce any and all rights, interests, or claims any and all persons,
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`firms or corporations in whatever court or jurisdiction such action may be necessary.” Mo. Rev.
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`Stat. § 270.060.
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`10. Plaintiff State of Arizona is a sovereign State of the United States of America. Arizona
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`11. Mark Brnovich is the Attorney General of Arizona. Attorney General Brnovich has
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`authority to “[r]epresent the state [of Arizona] in any action in a federal court.” A.R.S. §41-
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`193(A)(3).
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`12. Plaintiff State of Arkansas is a sovereign State of the United States of America. Arkansas
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`13. Leslie Rutledge is the Attorney General of Arkansas. Attorney General Rutledge is
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`authorized to bring legal actions on behalf of the State of Arkansas and its citizens.
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`14. Plaintiff State of Indiana is a sovereign State of the United States of America. Indiana sues
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`to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`15. Theodore E. Rokita is the Attorney General of Indiana. Attorney General Rokita is
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`authorized to bring legal actions on behalf of the State of Indiana and its citizens.
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`16. Plaintiff State of Kansas is a sovereign State of the United States of America. Kansas sues
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`to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`17. Derek Schmidt is the duly elected and sworn 44th Attorney General of the State of Kansas.
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`Attorney General Schmidt is authorized to “prosecute and defend any and all actions and
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`proceedings, civil or criminal, … in all federal courts, in which the state shall be interested or a
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`party, and shall, when so appearing, control the state’s prosecution or defense.” K.S.A. 75-702.
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`18. Plaintiff State of Montana is a sovereign State of the United States of America. Montana
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`19. Austin Knudsen is the Attorney General of Montana. Attorney General Knudsen is
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`authorized to bring legal actions on behalf of the State of Montana and its citizens.
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`20. Plaintiff State of Nebraska is a sovereign State of the United States of America. Nebraska
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`21. Douglas J. Peterson is the Attorney General of Nebraska. Attorney General Peterson is
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`authorized to bring legal actions on behalf of the State of Nebraska and its citizens.
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`22. Plaintiff State of Ohio is a sovereign State of the United States of America. Ohio sues to
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`vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`23. Dave Yost is the Attorney General of Ohio. Attorney General Yost is authorized to bring
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`legal actions on behalf of the State of Ohio and its citizens.
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`24. Plaintiff State of Oklahoma is a sovereign State of the United States of America. Oklahoma
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`25. Mike Hunter is the Attorney General of Oklahoma. Attorney General Hunter is authorized
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`to bring legal actions on behalf of the State of Oklahoma and its citizens.
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`26. Plaintiff State of South Carolina is a sovereign State of the United States of America. South
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`Carolina sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`27. Alan Wilson is the Attorney General of South Carolina. Attorney General Wilson is
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`authorized to bring legal actions on behalf of the State of South Carolina and its citizens.
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`28. Plaintiff State of Tennessee is a sovereign State of the United States of America. Tennessee
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`sues to vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`29. Herbert H. Slattery III is the Attorney General & Reporter of Tennessee. Attorney General
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`Slattery is authorized to bring legal actions on behalf of the State of Tennessee and its citizens.
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`30. Plaintiff State of Utah is a sovereign State of the United States of America. Utah sues to
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`vindicate its sovereign, quasi-sovereign, and proprietary interests.
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`31. Sean D. Reyes is the Attorney General of Utah. Attorney General Reyes is authorized to
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`bring legal actions on behalf of the State of Utah and its citizens.
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`32. Collectively, the States of Missouri, Arizona, Arkansas, Indiana, Kansas, Montana,
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`Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah, are referred to herein as the
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`“Plaintiff States.”
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`33. Defendant Joseph R. Biden, Jr., is the President of the United States of America. He issued
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`Executive Order 13990 (“EO 13990,” or “the Executive Order”) on January 20, 2021, on which
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`Defendants rely for authority to publish interim values for the “social costs” of carbon dioxide,
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`nitrous oxide, and methane that all federal agencies are required to use when monetizing the value
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`of changes in greenhouse gas emissions resulting from regulations and other relevant agency
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`actions until final values are published. He is sued in his official capacity.
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`34. Defendant Robert Fairweather is the Acting Director of the Office of Management and
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`Budget, an office within the Executive Office of the President. 31 U.S.C. § 501. Section 5 of EO
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`13990 makes him (and his successor) a co-chair of the interagency working group responsible for
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`implementing and publishing the interim social cost of greenhouse gas rules. He is sued in his
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`official capacity.
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`35. Defendant Cecilia Rouse is the Chair of the Council of Economic Advisers, an entity within
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`the Executive Office of the President. 15 U.S.C. § 1023. EO 13990 makes her a co-chair of the
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`interagency working group responsible for implementing and publishing the interim social cost of
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`greenhouse gases. She is sued in her official capacity.
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`36. Defendant Kei Koizumi is the acting Director of the Office of Science and Technology
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`Policy, an office within the Executive Office of the President. 42 U.S.C. § 6611. EO 13990 makes
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`him (and his successor) a co-chair of the interagency working group responsible for implementing
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`and publishing the interim social cost of greenhouse gases. He is sued in his official capacity. Eric
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`Lander is the nominee for director and will assume office if confirmed by the U.S. Senate.
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`37. Defendant U.S. Environmental Protection Agency (“EPA”) is a federal cabinet agency
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`responsible for implementing and enforcing certain environmental statutes. EPA is an executive
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`agency and an agency within the meaning of 5 U.S.C. § 551(1).
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`38. Defendant Jane Nishida is the Acting Administrator of EPA. Michael Regan has been
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`nominated as Administrator of EPA and will assume office if confirmed by the Senate. Nishida is
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`sued in her official capacity.
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`39. Defendant U.S. Department of Energy (“DOE”) is a federal cabinet agency responsible for
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`implementing and enforcing certain energy-related statutes. DOE is a Department of the Executive
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`Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 551(1).
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`40. Defendant Jennifer Granholm is the Secretary of Energy and the head of DOE. She is sued
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`in her official capacity.
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`41. Defendant Federal Energy Regulatory Commission (“FERC”) is a federal agency within
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`DOE. FERC is responsible for implementing and enforcing certain energy-related statutes. FERC
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`is an agency within the meaning of 5 U.S.C. § 551(1).
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`42. Defendant Richard Glick is the Chairman of FERC. He is sued in his official capacity.
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`43. Defendant U.S. Department of Transportation (“DOT”) is a federal cabinet agency
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`responsible for implementing and enforcing certain transportation-related statutes. DOT is a
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`Department of the Executive Branch of the U.S. Government, and is an agency within the meaning
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`of 5 U.S.C. § 551(1).
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`44. Defendant Peter Buttigieg is the Secretary of Transportation and the head of DOT. He is
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`sued in his official capacity.
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`45. Defendant U.S. Department of Agriculture (“USDA”) is a federal cabinet agency
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`responsible for implementing and enforcing certain transportation-related statutes. USDA is a
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`Department of the Executive Branch of the U.S. Government, and is an agency within the meaning
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`of 5 U.S.C. § 551(1).
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`46. Defendant Tom Vilsack is the Secretary of Agriculture and the head of USDA. He is sued
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`in his official capacity.
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`47. Defendant U.S. Department of the Interior (“DOI”) is a federal cabinet agency responsible
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`for implementing and enforcing certain statutes relating to the interior. DOI is a Department of
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`the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C.
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`§ 551(1).
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`48. Defendant Scott de la Vega is the Acting Secretary of the Interior and the head of DOI.
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`Debra Haaland has been nominated as Secretary of the Interior and will assume office if confirmed
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`by the Senate. De la Vega is sued in his official capacity.
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`49. Defendant U.S. Bureau of Land Management (“BLM”) is a federal agency within the U.S.
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`Department of the Interior. BLM is responsible for administering and enforcing certain statutes
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`relating to federal lands. BLM is an agency within the meaning of 5 U.S.C. § 551(1).
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`50. Defendant Nada Culver is the acting Director of BLM. She is sued in her official capacity.
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`51. Collectively, Defendants EPA, Nishida, DOE, Granholm, FERC, Glick, DOT, Buttigieg,
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`USDA, Vilsack, DOI, de la Vega, BLM, and Culver are referred to herein as the “Agency
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`Defendants.”
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`52. Defendant Interagency Working Group on Social Cost of Greenhouse Gases, United States
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`Government (“Working Group”) is a federal agency within the meaning of 5 U.S.C. § 551(1).
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`53. Collectively, Defendants Fairweather, Rouse, Koizumi, Nishida, Granholm, Buttigieg,
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`Vilsack, de la Vega, and the Working Group are referred to herein as the “Working Group
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`Defendants.”
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`54. Each of the Agency Defendants is required, by the plain terms of Section 5 of Executive
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`Order 13990, to adopt as binding and to employ in agency actions the interim values for the “social
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`costs” of carbon dioxide, methane, and nitrous oxide promulgated by the Interagency Working
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`Group created by that same Order, in their administration of federal regulatory programs, conduct
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`of rulemaking proceedings, and other agency actions.
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`JURISDICTION AND VENUE
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`55. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, and 2201(a). The action
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`arises under the U.S. Constitution (art. I, § 1, art. II, § 1), 5 U.S.C. §§ 702-703, and other federal
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`statutes. This Court also has jurisdiction under 28 U.S.C. § 1346(a) because this is a civil action
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`against the United States.
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`56. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e).
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`Defendants are United States agencies or officers sued in their official capacities. The State of
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`Missouri is a resident of this judicial district and a substantial part of the events or omissions giving
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`rise to the Complaint occur within the Eastern District of Missouri.
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`57. The Plaintiff States bring this action to redress harms to their sovereign interests, their
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`quasi-sovereign interests, their proprietary interests, and their interests as parentes patriae; and to
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`vindicate their interests under 5 U.S.C. § 702.
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`58. This Court may grant declaratory and injunctive relief under 5 U.S.C. § 706, 28 U.S.C.
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`§§ 2201 and 2202, and its inherent equitable powers.
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`59. Divisional venue is proper in the Eastern Division under Local Rule 2.07(B)(3) as venue
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`is based on the residency of Plaintiff the State of Missouri that resides throughout the State.
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`GENERAL ALLEGATIONS
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`I.
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`The Separation of Powers Is the Fundamental Bulwark of Liberty.
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`A. The Constitution Mandates Separation of Legislative and Executive Powers.
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`60. Article I, Section 1 of the Constitution vests the legislative power exclusively in the
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`Congress of the United States: “All legislative powers herein granted shall be vested in a Congress
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`of the United States, which shall consist of a Senate and House of Representatives.” U.S. CONST.
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`art. I, § 1.
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`61. Article II, Section 1 of the Constitution vests executive power in the President: “The
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`executive power shall be vested in a President of the United States of America.” U.S. CONST. art.
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`II, § 1. Article II does not vest legislative power in the President or the Executive Branch.
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`62. Article II, Section 3 of the Constitution provides that the President “shall take care that the
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`laws be faithfully executed.” U.S. CONST. art. II, § 3. This “Take Care” clause grants the President
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`the power and duty to enforce the laws that Congress makes, not to make laws of his own.
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`63. The vesting clauses of Article I and Article II reflect the Founders’ insights that “the
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`legislative, executive, and judiciary departments ought to be separate and distinct,” and that this
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`separation is an “essential precaution in favor of liberty.” THE FEDERALIST NO. 47 (Madison) (C.
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`Rossiter ed. 1961), p. 301.
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`64. As Madison stated, “[n]o political truth is certainly of greater intrinsic value, or is stamped
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`with the authority of more enlightened patrons of liberty.” Id.
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`65. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,
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`whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be
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`pronounced the very definition of tyranny.” Id.
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`66. “Were the federal Constitution … really chargeable with the accumulation of power, or
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`with a mixture of powers, having a dangerous tendency to such an accumulation, no further
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`arguments would be necessary to inspire a universal reprobation of the system.” Id.
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`67. “It is the proud boast of our democracy that we have ‘a government of laws and not of
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`men.’” Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (emphasis added)
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`(quoting Part the First, Article XXX, of the Massachusetts Constitution of 1780).
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`68. This phrase “comes from Part the First, Article XXX, of the Massachusetts Constitution of
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`1780,” which provides that “the legislative department shall never exercise the executive and
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`judicial powers, or either of them: The executive shall never exercise the legislative and judicial
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`powers, or either of them: The judicial shall never exercise the legislative and executive powers,
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`or either of them: to the end it may be a government of laws and not of men.” Id.
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`69. “The Framers of the Federal Constitution . . . viewed the principle of separation of powers
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`as the absolutely central guarantee of a just Government.” Id.
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`70. “The purpose of the separation and equilibration of powers in general . . . was not merely
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`to assure effective government but to preserve individual freedom.” Id. at 727.
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`71. “While the separation of powers may prevent us from righting every wrong, it does so in
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`order to ensure that we do not lose liberty.” Id. at 710.
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`72. “The Constitution sought to divide the delegated powers of the new federal government
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`into three defined categories, legislative, executive, and judicial, to assure, as nearly as possible,
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`that each Branch of government would consign itself to its assigned responsibility.” INS v.
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`Chadha, 462 U.S. 919, 951 (1983).
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`73. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer
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`limits of its power, even to accomplish desirable objectives, must be resisted.” Id.
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`B. The Separation of Powers Preserves the States’ Role in Our System of Federalism.
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`74. One critical purpose of the horizontal separation of powers among the three Branches of
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`the federal government was to preserve the unique role of the States in our system of federalism.
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`75. The Constitution’s “Great Compromise” on the horizontal separation of powers “allayed
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`the fears of both the large and small states.” Chadha, 462 U.S. at 950.
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`76. Regarding the separation of powers, “[t]he choices . . . made in the Constitutional
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`Convention impose burdens on governmental processes that often seem clumsy, inefficient, even
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`unworkable, but those hard choices were consciously made by men who had lived under a form of
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`government that permitted arbitrary governmental acts to go unchecked.” Chadha, 462 U.S. at
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`959.
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`77. Indeed, “our government was designed to have such restrictions. The price was deemed
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`not too high in view of the safeguards which these restrictions afford.” Youngstown Sheet & Tube
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`Co. v. Sawyer, 343 U.S. 579, 613 (1952) (Frankfurter, J. concurring)).
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`78. The separation of powers prescribes that federal action result from “a step-by-step,
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`deliberate and deliberative process.” Chadha, 462 U.S. at 959.
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`79. “Just as the separation and independence of the coordinate branches of the Federal
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`Government serve to prevent the accumulation of excessive power in any one branch, a healthy
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`balance of power between the States and the Federal Government will reduce the risk of tyranny
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`and abuse from either front.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
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`80. For these reasons, “the composition of the Federal Government was designed in large part
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`to protect the States from overreaching by Congress.” Garcia v. San Antonio Metropolitan Transit
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`Authority, 469 U.S. 528, 550-51 (1985). This principle applies to overreaching by the federal
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`Executive Branch as well.
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`81. “The records of the Convention and debates in the States preceding ratification underscore
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`the common desire to define and limit the exercise of the newly created federal powers affecting
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`the states and the people.” Chadha, 462 U.S. at 959.
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`82. Thus, any encroachment by one Branch of the federal government on the authority of a
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`separate, co-equal Branch threatens the independence and authority of the States in our system of
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`federalism. The concentration of power in a single Branch of the federal government undermines
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`the States’ separate power and authority within our federal system of vertical and horizontal checks
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`and balances.
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`C. The Executive May Not Exercise Legislative Power Without a Valid Delegation.
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`83. Any action of the Executive Branch must come from one of two sources of authority: (1)
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`a valid delegation of authority by statute enacted by Congress, or (2) a direct exercise of one of
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`the President’s enumerated powers in Article II. “The President’s power, if any, to issue [an] order
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`must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet &
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`Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).
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`84. Where “[t]here is no statute that expressly authorizes the President to take” an action,
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`“[n]or is there any act of Congress … from which such a power can fairly be implied,” the action
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`is not authorized by an act of Congress. Id.
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`85. In the absence of such an express or implied authorization by act of Congress, “if the
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`President had authority to issue the order he did, it must be found in some provisions of the
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`Constitution.” Id. at 587.
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`86. Article II confers no authority on the President to exercise any legislative function without
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`a delegation of authority by statute enacted by Congress.
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`II.
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`The President’s Executive Order on the Social Cost of Greenhouse Gases Violates
`the Separation of Powers.
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`A. Section 5 of EO 13990 dictates the adoption of binding values for the “social cost” of
`three greenhouse gases that must be used by all federal agencies.
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`
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`87. On January 20, 2021, President Biden issued Executive Order 13990, entitled “Protecting
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`Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.” 86 Fed.
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`Reg. 7037 (attached as Exhibit 1).
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`88. Section 5 of EO 13990, entitled “Accounting for the Benefits of Reducing Climate
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`Pollution,” instructs all federal agencies to “capture the full costs of greenhouse gas emissions as
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`accurately as possible, including by taking global damages into account.” 86 Fed. Reg. 7040.
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`89. Section 5(a) of EO 13990 provides that “[t]he ‘social cost of carbon’ (SCC), ‘social cost
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`of nitrous oxide’ (SCN), and ‘social cost of methane’ (SCM) are estimates of the monetized
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`damages associated with incremental increases in greenhouse gas emissions.” Id.
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`90. Section 5(b) of EO 13990 provides that “[t]here is hereby established an Interagency
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`Working Group on the Social Cost of Greenhouse Gases (the ‘Working Group’). The Chair of the
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`Council of Economic Advisors, Director of OMB, and Director of the Office of Science and
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`Technology Policy shall serve as Co-Chairs of the Working Group.” Id.
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`91. Section 5(b)(i) of EO 13990 provides that “[t]he Working Group shall also include the
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`following other officers, or their designees: the Secretary of the Treasury; the Secretary of the
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`Interior; the Secretary of Agriculture; the Secretary of Commerce; the Secretary of Health and
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`Human Services; the Secretary of Transportation; the Secretary of Energy; the Chair of the Council
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`on Environmental Quality; the Administrator of the Environmental Protection Agency; the
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`Assistant to the President and National Climate Advisor; and the Assistant to the President for
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`Economic Policy and Director of the National Economic Council.” Id.
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`92. Section 5(b)(ii)(A) of EO 13990 provides that “the Working Group shall … publish an
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`interim SCC, SCN, and SCM within 30 days of the date of this order, which agencies shall use
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`when monetizing the value of changes in greenhouse gas emissions resulting from regulations and
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`other relevant agency actions until final values are published.” Id. (emphasis added). This
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`provision mandates that all federal agencies “shall” use these interim values in regulatory actions
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`as soon as they are promulgated. Id.
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`93. Thirty days from the date of EO 13990 fell on Friday, February 19, 2020.
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`94. Section 5(b)(ii)(B) of EO 13990 provides that “the Working Group shall … publish a final
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`SCC, SCN, and SCM by no later than January 2022.” Id.
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`95. EO 13990 cited no statutory authorization for its creation of the Working Group or its
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`directive to the Working Group to set binding values for SCC, SCN, and SCM that “shall” be used
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`by regulatory agencies administering statutes pursuant to statutory delegations of authority enacted
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`by Congress.
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`96. Carbon dioxide, methane, and nitrous oxide are produced as by-products in many critical
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`economic activities, including energy production, agricultural production, industrial production,
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`transportation, construction, waste disposal, and many other processes. They are among the most
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`common and prevalent by-products of human economic activity.
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`97. According to EPA, “[c]arbon dioxide enters the atmosphere through burning fossil fuels
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`(coal, natural gas, and oil), solid waste, trees and other biological materials, and also as a result of
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`certain chemical reactions (e.g., manufacture of cement). Carbon dioxide is removed from the
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`atmosphere (or ‘sequestered’) when it is absorbed by plants as part of the biological carbon cycle.”
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`EPA, Overview of Greenhouse Gases, at https://www.epa.gov/ghgemissions/overview-
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`greenhouse-gases. Carbon dioxide is also emitted when human beings and other respiratory
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`organisms breathe.
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`98. According to EPA, “[m]ethane is emitted during the production and transport of coal,
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`natural gas, and oil. Methane emissions also result from livestock and other agricultural practices
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`and by the decay of organic waste in municipal solid waste landfills.” Id. According to EPA,
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`about 27 percent of methane emissions come from “enteric fermentation,” i.e., livestock manure
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`and flatulence. About 30 percent of methane emissions come from “natural gas and petroleum
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`systems.” Methane is the principal component of natural gas.
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`99. According to EPA, “[n]itrous oxide is emitted during agricultural and industrial activities,
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`combustion of fossil fuels and solid waste, as well as during treatment of wastewater.” Id.
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`According to EPA, about 75 percent of nitrous oxide emissions come from “agricultural soil
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`management activities, such as application of synthetic and organic fertilizers and other cropping
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`practices, the management of manure, or burning of agricultural residues”—in other words,
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`fertilizing crops. Id.
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`100.
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`The emission of these three gases is thus ubiquitous in human activity, especially
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`agriculture and energy production.
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`101.
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`On February 26, 2021, the Working Group released its interim values for the social
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`costs of carbon, methane, and nitrous oxide. See Interagency Working Group on Social Cost of
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`Greenhouse Gases, United States Government, Technical Support Document: Social Cost of
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`Carbon, Methane, and Nitrous Oxide, Interim Estimates Under Executive Order 13990 (Feb. 26,
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`2021) (“Interim Values”) (attached as Exhibit 2).
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`102.
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`Although Section 5 of EO 13990 instructed the Working Group to elicit and receive
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`input from the public and stakeholders in conducting its business, the Working Group did not elicit
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`or receive comments or input from the public or stakeholders before publishing the Interim Values.
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`103.
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`The Interim Values define the