Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 1 of 27 PageID #: 784
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
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`THE STATES OF MISSOURI, ARIZONA, )
`ARKANSAS, INDIANA, KANSAS,
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`MONTANA, NEBRASKA, OHIO,
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`OKLAHOMA, SOUTH CAROLINA,
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`TENNESSEE and UTAH,
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`Plaintiffs,
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`v.
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`JOSEPH R. BIDEN, JR., in his official
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`capacity as the President of the United
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`States of America; and various United
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`States Government officials,
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`Defendants.
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`Case No. 4:21-CV-00287
`Judge Audrey G. Fleissig
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`PROPOSED AMICUS CURIAE BRIEF
`OF THE
`COMMITTEE FOR A CONSTRUCTIVE TOMORROW
`IN SUPPORT OF PLANITIFFS
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`
`
`Matthew D. Hardin
`Hardin Law Office
`Bar No. 1032711 (DC)
`1725 I Street NW, Suite 300
`Washington, DC 20006
`Phone: 202-802-1948
`Email: MatthewDHardin@protonmail.com
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`Counsel for Amicus Curiae
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 2 of 27 PageID #: 785
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ......................................................................................................... 2
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`INTEREST OF AMICUS CURIAE ................................................................................................ 7
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`SUMMARY OF ARGUMENT ..................................................................................................... 8
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`ARGUMENT
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`I. IWG must consider costs and benefits of hydrocarbon use and related emissions .................. 10
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`II. Trying to replace today’s energy with renewables would have serious costly impacts .......... 14
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`III. Replacement energy systems would require unprecedented raw materials and impacts ....... 17
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`IV. Mining would cause major environmental, health and human rights damage ...................... 20
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`V. Elimination of U.S. fossil fuels and emissions would bring no global benefits ..................... 22
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`CONCLUSION ........................................................................................................................... 24
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`CERTIFICATE OF SERVICE .................................................................................................... 26
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`1
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 3 of 27 PageID #: 786
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`TABLE OF AUTHORITIES
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`STATUTES CITED
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`Administrative Procedure Act (APA), 5 U.S.C. §552 et seq.
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`National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.
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`OTHER AUTHORITIES CITED
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`PAGES
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`10, 14, 17, 19,
`22, 24, 25
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`10, 14, 17, 19,
`22, 24, 25
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` J
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`8
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` 22
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`19
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`19
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`13
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`23
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`13
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`21
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`21, 22
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`18
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`2
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 4 of 27 PageID #: 787
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`OTHER AUTHORITIES CITED (CONT’D)
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`PAGES
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` Driessen, Protecting the Environment from the Green New Deal, Chicago:
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`International Energy Agency, The Role of Critical Minerals in Clean Energy
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`15
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`15
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`11
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`12, 13
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`23
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`12
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`11
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`18, 19, 20
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`3
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`PAGES
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`OTHER AUTHORITIES CITED (CONT’D)
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`Investment Watch, “John Kerry admits America will buy solar panels made in
`China by slave labor,” May 13, 2021
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`by-slave-labor/
`V Jayaraj: “Despite COP26 pressure, Asia and Africa remain committed to
`coal,” Global Warming Policy Forum, June 6, 2021
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`B Jones, “Child miners aged four living a Hell on Earth so YOU can drive an
`21
`electric car,” The Daily Mail, August 5, 2017
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`S Koonin, Unsettled: What climate science tells us, what it doesn't, and why it
`8
`matters, Dallas: BenBella Books (2021)
`
`N Mamula, “Federal Land Withdrawals: Endangering the Nation: The
`consequences of locking up American mineral wealth,” Capital Research
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`N Mamula and A Bridges, Groundbreaking! America's New Quest for Mineral 19
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`B Marlow, “Green evangelicals are handing the global mining industry to
`China & Russia,” The Daily Telegraph, June 7, 2021
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`china/
`A Maxmen, “Poverty plus a poisonous plant blamed for paralysis in rural
`Africa,” National Public Radio, February 23, 2017
`https://www.npr.org/sections/thesalt/2017/02/23/515819034/poverty-plus-a-poisonous-plant-blamed-for-
`paralysis-in-rural-Africa
`M Mills, “Biden’s not-so-clean energy transition,” Wall Street Journal, May
`12, 2021
`https://www.wsj.com/articles/bidens-not-so-clean-energy-transition-11620752282
`A Montford, “Green Killing Machines: The impact of renewable energy on
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`H Parker, “The Secret, Silent Wind-Power Peril,” MasterResource blog,
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`20
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`21
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`17
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 6 of 27 PageID #: 789
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`OTHER AUTHORITIES CITED (CONT’D)
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`PAGES
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`5
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`OTHER AUTHORITIES CITED (CONT’D)
`
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`INTEREST OF AMICUS CURIAE
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`The Committee For A Constructive Tomorrow (hereinafter “CFACT”) respectfully submits
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`
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`this proposed Brief as Amicus Curiae in support of Plaintiffs in The States of Missouri, et al. v.
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`Joseph R. Biden, Jr. et al., No. 4:21-CV-00287. The case focuses on the separation of state and
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`federal powers and the speculative, inadequate, arbitrary and capricious analysis by the
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`Interagency Working Group (hereinafter “Working Group” or “IWG”) and its affiliated Federal
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`Government agencies in setting “social costs” of greenhouse gases, to justify enormously
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`expanding the federal regulatory reach, forcing the attempted substitution of “renewable” energy
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`for hydrocarbon or “fossil fuel” energy, and intruding into virtually every aspect of Americans’
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`lives, health and living standards.
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` CFACT is a Washington, DC-based nonprofit public policy and educational organization. Its
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`mission is to promote environmental protection, economic development, human health, and more
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`productive lives for its members, supporters, and other people throughout the United States and
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`world, through modern science and technology that are grounded in complete, careful, expert
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`analysis of often competing needs, costs, benefits, interests and political agendas.
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` CFACT’s interest as Amicus in this case stems from the Working Group’s disregard for
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`procedural due process requirements in not properly allowing opportunities to comment, and
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`from the Group’s failure to consider major costs and benefits that any competent, rigorous and
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`complete analysis would necessarily have included. These failures are particularly important
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`because the Group is developing highly influential scientific and economic assessments that are
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`being used to support, justify and drive major federal actions that will have especially far-
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`reaching and costly impacts on employment, the economy, the health and well-being of every
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`citizen of the United States, and the quality and diversity of the natural and human environment.
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`SUMMARY OF ARGUMENT
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`Fossil fuels make our lives richer, freer, more productive and manifestly safer. They are
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`central to our economy and way of life. Recent “greenouts” in California and Texas, and the East
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`Coast gasoline scarcity this past spring provided stark reminders of those fossil fuel benefits and
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`the importance of reliable “dispatchable” energy, as opposed to intermittent energy sources.
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` A valid, complete, rigorous analysis of the “social costs” of greenhouse gases (GHGs) must
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`not only address the asserted American and global costs of U.S. hydrocarbon use and resulting
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`GHG emissions. It must also examine the benefits of those fuels and emissions to the United
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`States and world – and the numerous, significant costs of attempting to replace existing U.S.
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`fossil fuel energy systems with wind, solar, battery and biofuel power, and installing a vastly
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`expanded and enhanced electricity transmission system. Yet somehow IWG analysts and
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`regulators managed to ignore these benefits and costs throughout their analysis.
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`The combustion of carbon-based energy indisputably produces, inter alia, carbon dioxide
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`(CO2) and other greenhouse gases that have some influence on Earth’s climate. Claims that they
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`are causing “dangerous” temperature increases, more extreme weather, melting ice caps and
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`other climate “chaos” are contested by many reputable scientists, however.1 Forcibly eliminating
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`abundant, reliable, affordable fossil fuels would not only cause the loss of numerous American
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`jobs, companies, industries and other benefits. It would force Americans to discard expensive
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`power generation and industrial, business and household equipment that still have years of
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`1 See e.g., R Carter (geologist), Climate: The Counter Consensus, London: Stacey International (2010); J
`Christy (atmospheric scientist), Testimony before U.S. House e Committee on Science, Space &
`Technology, March 29, 2017, https://science.house.gov/imo/media/doc/Christy%20Testimony_1.pdf?1; S
`Koonin (U.S. Energy Undersecretary of Science for President Obama), Unsettled: What climate science
`tells us, what it doesn't, and why it matters, Dallas: BenBella Books (2021); R Spencer (climatologist),
`The Great Global Warming Blunder: How Mother Nature fooled the world’s top climate scientists, New
`York: Encounter Books (2010).
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`productive life, and attempt to replace them prematurely with costly electricity-based equipment
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`that can operate with intermittent, unreliable, weather-dependent wind and solar power.
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`Still more costs would be imposed by compelling the installation of potentially hundreds of
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`thousands of onshore and offshore wind turbines, billions of solar panels and battery modules,
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`and thousands of miles of new underwater and onshore electricity transmission lines. Those
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`facilities would cumulatively impact millions of acres of scenic vistas and forest, grassland,
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`desert and marine wildlife habitat; harm, displace, starve or kill millions of birds, bats, mammals,
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`reptiles, amphibians, sea creatures and beneficial insects; and impair human health.
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` All these new industrial facilities would require enormous quantities of iron, copper, cobalt,
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`lithium, aluminum, rare earth elements, plastics, concrete and other materials. That would
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`necessitate greatly expanded mining, processing and manufacturing operations, many of them
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`involving fossil fuels, air and water pollution, forced labor, more habitat and wildlife destruction,
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`and human diseases, injuries and deaths. These activities would take place primarily in foreign
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`countries, because the United States increasingly restricts mining, has insufficient metal and
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`mineral deposits to meet all these raw material needs, and will be able to support only limited
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`manufacturing in a renewable energy economy. Reuters just affirmed this foreign dependency:
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` U.S. President Joe Biden will rely on ally countries to supply the bulk of the metals
`needed to build electric vehicles and focus on processing them domestically into battery
`parts, part of a strategy designed to placate environmentalists, two administration officials
`with direct knowledge told Reuters.
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`The plans will be a blow to U.S. miners who had hoped Biden would rely primarily on
`domestically sourced metals, as his campaign had signaled last autumn, to help fulfill his
`ambitions for a less carbon-intensive economy. 2
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`These realities raise critical, complex national security and environmental justice issues.
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`2 E. Scheyder and T. Hunnicutt, “Exclusive: Biden looks abroad for electric vehicle metals, in blow to
`U.S. miners,” Reuters, May 25, 2021, https://www.reuters.com/business/energy/biden-looks-abroad-
`electric-vehicle-metals-blow-us-miners-2021-05-25/.
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` Meanwhile, even in a hypothetical future in which U.S. fossil fuel reliance is forcibly
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`decreased or eliminated, many other countries would not stop using fossil fuels. Indeed, their oil,
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`gas and coal use would likely increase, to improve their people’s living standards, and to operate
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`the new and expanded mines, processing plants and factories to meet U.S. “renewable” energy
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`needs. Global greenhouse gas emissions will thus increase, rather than decline. That means all
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`the foregoing U.S. and global costs would bring no climate benefits, even accepting an
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`assumption that greenhouse gases are the primary factor in modern climate change.
`
` A proper analysis would consider and balance all these scenarios, costs and benefits. It would
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`not present all costs and no detectable or obvious benefits to the quality of the natural and human
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`environment from fossil fuel use and associated emissions. It would not exaggerate claimed
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`global benefits from eliminating fossil fuels in the United States. Nor would it narrowly view,
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`minimize or ignore the costs and risks associated with forcibly eliminating existing U.S. energy
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`delivery systems and attempting to replace them with new wind, solar and battery electricity
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`systems. Yet the IWG makes all these and many other errors, with apparently full deliberation.
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` Anything less than careful, complete analysis of all these costs, risks and benefits is arbitrary,
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`capricious, and contrary to the Administrative Procedure Act (APA), 5 U.S.C. §552 et seq., and
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`National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.
`
`
`
`ARGUMENT
`
`I. The Interagency Working Group has improperly chosen to focus only on alleged
`U.S. and global costs of U.S. carbon dioxide and other greenhouse gas emissions from
`America’s fossil fuel use. A competent, rigorous, complete analysis must also assess
`the U.S. and global benefits of those fuels and carbon dioxide emissions.
`
`By Executive Order (EO 13990), “Protecting Public Health and the Environment and
`
`Restoring Science to Tackle the Climate Crisis,” the Biden Administration has tasked a
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`reconstituted Interagency Working Group (IWG) with examining the alleged global costs of
`
`
`
`10
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`

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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 12 of 27 PageID #: 795
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`emissions by the United States of carbon dioxide and other greenhouse gases, by no later than
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`January 2022. [86 Fed. Reg. 7037; Docket No. 1-1] On February 26, 2021, the Working Group
`
`released its interim values for the social costs of carbon, methane and nitrous oxide.3
`
`As Plaintiffs note in their complaint before this Court, by this act the President 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.” [Complaint at 1]
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`Additionally, however, any competent, rigorous, complete analysis must also examine the
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`U.S. and global benefits of fossil fuel use and CO2/GHG emissions. The IWG did not do so in
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`preparing its interim values, and has demonstrated that it is not doing so now for its final report.
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`Those benefits include the industries, jobs, living standards, revenues, health and other social-
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`economic-environmental improvements that oil, natural gas and coal bring to families and
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`communities throughout the United States and world. Wealthier is indisputably healthier, and
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`richer societies are increasingly able to afford and ensure cleaner air and water. That the United
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`States and developed world were largely built with fossil fuels and still rely on oil, natural gas
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`and coal for 80% or more of their energy further underscores this reality.4
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`Moreover, fossil fuel benefits also include enhanced plant growth and drought-resistance due
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`to increasing levels of atmospheric carbon dioxide, resulting in record corn, wheat, soy and other
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`3 See Interagency Working Group on Social Cost of Greenhouse Gases, United States Government,
`Technical Support Document: Social Cost of Carbon, Methane and Nitrous Oxide, Interim Estimates
`Under Executive Order 13990, February 26, 2021 [Docket No. 1-2].
`4 See e.g., I Goklany, The Improving State of the World: Why we’re living longer, healthier, more
`comfortable lives on a cleaner planet, Washington, DC: Cato Institute (2007); U.S. Energy Information
`Administration,
`Monthly
`Energy
`Review,
`April
`2018,
`https://www.e-
`education.psu.edu/ebf301/sites/www.e-
`education.psu.edu.ebf301/files/Revised_folder/Lesson_01/2017%20energy_consumption_by_source_larg
`e.jpg; and R Rapier, Primary Global Energy Consumption 2019 (by source), Realgy Energy Services,
`https://d2fu5nmldghv48.cloudfront.net/realgyenergyservices.com/public_html/wp-
`content/uploads/2020/07/01164553/Primary-Energy-Consumption.png
`
`
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`11
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`crop yields in recent years, improved forest and grassland productivity, the “greening” of desert
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`an other areas, and enriched freshwater and marine habitats throughout the world.
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`Carbon dioxide can properly be called the “miracle molecule” or the “gas of life,” because
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`even small amounts enable plants to grow and release oxygen, thereby making almost all life on
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`Earth possible. Whether the CO2 comes from fossil fuels or from volcanoes, subsea vents,
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`warming seawater during El Niño events, baking bread, or humans and animals exhaling the gas,
`
`more CO2 in the atmosphere enables plants to grow better and faster, even under adverse
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`conditions like limited water, hotter air temperatures, and insect and other infestations. 5
`
`These enhanced rates of photosynthesis and biomass production occur for virtually every kind
`
`of plant, every part of the plant (roots, stems, branches, flowers and leaves), in every ecosystem,
`
`on every continent. To cite just a few of many hundreds of available examples:
`
`Raising CO2 levels in greenhouses and “forest enrichment facilities” (from a recent ambient
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`level of 350 parts per million to 700 ppm) increased the growth rates and productivity of
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`legumes, corn, grains, rice, sugarcane, cotton, and pine and aspen trees by 28% to 80% or more.6
`
`In the “real world” outside greenhouses, trees in Minnesota, Wisconsin, Spain and elsewhere
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`grew better in recent years compared to 70-120 years ago, as planetary temperatures rose a half
`
`degree and atmospheric CO2 levels increased from about 300 ppm in 1900 to 375 ppm in 2003
`
`
`5 See C Idso, R Carter and S Singer, Climate Change Reconsidered: 2011 Interim Report of the
`Nongovernmental Panel on Climate Change, Chicago: Heartland Institute (2011), especially Chapter 7
`(pages 197-315), “Terrestrial Plants and Soils,” citing more than 650 scientific articles and studies.
`https://www.heartland.org/_template-assets/documents/CCR/CCR-
`Interim/Full%20Interim%20Report.pdf See also C Idso, R Carter and S Singer, Climate Change
`Reconsidered II: Biological Impacts, Report of the Nongovernmental Panel on Climate Change, Chicago:
`Heartland Institute (2014).
`6 Climate Change Reconsidered: 2011 Interim Report, pp 199, 204-205, 232, 244, 265-269.
`
`
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`12
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 14 of 27 PageID #: 797
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`(versus 400 ppm or 0.04% of the atmosphere today).7 Alpine plant species have also proliferated,
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`expanding biodiversity and making mountain ecosystems more productive.8
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`Higher crop yields ensure that more people have greater quantities of nutritious food, thereby
`
`reducing hunger and improving lives, and doing so from less land and with less water. That is
`
`due to better crop varieties and improved agricultural, fertilizing and irrigation technologies, but
`
`also to warmer temperatures, longer growing seasons and more atmospheric CO2.9
`
`Higher atmospheric CO2 levels also allow plants to absorb more carbon dioxide through
`
`smaller stomata (pores in plant tissue), thereby avoiding water loss through those openings. This
`
`has contributed to greatly improved plant growth and water use efficiency, and to a pronounced
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`“greening” of desert areas in the Sahara and other arid regions during the past several decades.10
`
`These cumulative U.S. and global cropland and natural habitat benefits are certainly worth
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`trillions of dollars per year. The IWG must assign reasonable dollar values to them – and apply
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`those economic (and social) benefits against any alleged “social costs” of carbon dioxide.
`
`Conversely, feeding the world while also replacing oil and natural gas fuels and
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`petrochemical feed stocks with corn, soybean, canola, palm and other biofuels would necessitate
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`planting biofuel crops on millions of additional acres that are currently food crop, fallow, scenic
`
`
`7 Ibid. at 206-210.
`8 Ibid. at 249-250, 254-255, 261.
`9 Ibid. at 231-232, 265-273. See also M Bhardwaj, “India expected to harvest record wheat, rice crops this
`year,” Reuters, February 24, 2021, https://www.reuters.com/world/india/india-expected-harvest-record-
`wheat-rice-crops-this-year-2021-02-24/
`10 Ibid. at 208, 220-222, 269, 275-287; P. Gosselin, “Looking at NASA’s Vegetation Index data, the news
`is good: The globe has greened 10%
`so
`far
`this
`century,” February 24, 2021,
`https://notrickszone.com/2021/02/24/nasa-vegetation-index-globe-continues-rapid-greening-trend-sahara-
`alone-shrinks-700000-sq-km/. See also CO2 Science, Biospheric Productivity (Global: The Recent Past),
`http://www.co2science.org/subject/b/bioproductivity.php
`
`
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`Case: 4:21-cv-00287-AGF Doc. #: 33 Filed: 06/23/21 Page: 15 of 27 PageID #: 798
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`or wildlife habitat lands, That would impose trillions of dollars in additional costs from the loss
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`of those non-biofuel lands. The IWG must address this matter, as well.
`
`Its failure to consider or address any of these issues and impacts runs afoul of the
`
`Administrative Procedure Act and National Environmental Policy Act.
`
`
`
`II. Attempting to replace America’s hydrocarbon-based energy systems with wind,
`solar and battery technologies, and expand and upgrade home,