Case: 4:21-cv-00287-AGF Doc. #: 48 Filed: 08/31/21 Page: 1 of 29 PageID #: 1007
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`STATE OF MISSOURI, et al.,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Case No. 4:21-cv-00287-AGF
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`JOSEPH R. BIDEN, JR., et al.,
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`Plaintiffs,
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`Defendants.
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`v.
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`MEMORANDUM AND ORDER
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`The State of Missouri and 12 other states1 brought this suit against President
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`Joseph R. Biden, Jr. and several other executive branch departments and officials,
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`challenging the President’s Executive Order 13990 (“EO 13990”), which, in relevant part,
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`establishes an Interagency Working Group on the Social Cost of Greenhouse Gases (the
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`“Working Group”) and directs the Working Group to publish interim—and, by January of
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`2022, final—values for the “social costs” of greenhouse gas emissions. The Executive
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`Order further provides that agencies “shall use [the Interim Estimates] when monetizing
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`the value of changes in greenhouse gas emissions resulting from regulations and other
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`relevant agency actions until final values are published.” 86 Fed. Reg. 7037.
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`The matter is now before the Court on two motions: (1) Plaintiffs’ motion (ECF
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`No. 17) for a “preliminary injunction prohibiting Defendants (excluding the President)
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`from using the social cost of greenhouse gases promulgated in the February 26, 2021
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`These are the States of Alaska, Arizona, Arkansas, Indiana, Kansas, Montana,
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`Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah.
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`Technical Support Document, [ECF No. 6-2], in any rule making or federal action where
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`there is a statutory command to consider costs or costs are permitted by statute until this
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`case is resolved on appeal”2 (ECF No. 17 at 1); and (2) Defendants’ motion (ECF No. 27)
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`to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a
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`claim.
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`The Court heard oral argument on both motions on August 25, 2021. Upon review
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`of the entire record and for the reasons set forth below, the Court concludes that Plaintiffs
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`lack standing and that their claims are not ripe for adjudication. Therefore, the Court will
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`grant Defendants’ motion to dismiss for lack of subject matter jurisdiction and will
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`dismiss Plaintiffs’ motion as moot.
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`BACKGROUND
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`On January 20, 2021, President Biden issued EO 13990, titled “Protecting Public
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`Health and the Environment and Restoring Science To Tackle the Climate Crisis.” 86
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`Fed. Reg. 7037. Section 5 of this Order, titled “Accounting for the Benefits of Reducing
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`Climate Pollution,” provides in full:
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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
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`In their supporting brief, Plaintiffs narrow their request, asking only to
`2
`“preliminarily enjoin all defendants, except for the President, from using the social cost
`of greenhouse gases promulgated in the February 26, 2021 Technical Support Document
`as binding values in any agency action.” ECF No. 18 at 59.
`2
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`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.
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`(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 of OMB, and Director of the Office of
`Science and Technology Policy shall serve as Co-Chairs of the Working
`Group.
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`(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 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.
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`(ii) Mission and Work. The Working Group shall, as appropriate and
`consistent with applicable law:
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`(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;
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`(B) publish a final SCC, SCN, and SCM by no later than
`January 2022;
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`(C) provide recommendations to the President, by no later than
`September 1, 2021, regarding areas of decision-making,
`budgeting, and procurement by the Federal Government where
`the SCC, SCN, and SCM should be applied;
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`3
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`(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
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`(E) 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.
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`(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 Valuing 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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`86 Fed. Reg. 7040-41.
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`Interim Estimates
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`On February 26, 2021, the Working Group issued a document entitled
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`“Technical Support Document: Social Cost of Carbon, Methane, and Nitrous
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`Oxide Interim Estimates under Executive Order 13990” (“Interim Estimates”).
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`These Interim Estimates are purportedly identical to prior estimates developed by
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`another interagency working group under President Barack Obama in 2016, except
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`that they have been adjusted for inflation. See ECF No. 6-2, Working Group,
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`Technical Support Document: Social Cost of Carbon, Methane, and Nitrous
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`Oxide: Interim Estimates under E.O. 13990 (Feb. 2021), also available at
`4
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`https://www.whitehouse.gov/wp-
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`content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethan
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`eNitrousOxide.pdf.
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`Plaintiffs argue that the Interim Estimates are faulty for a number of reasons,
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`including that the underlying factual inputs and modeling assumptions are
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`arbitrary and lack a reasonable basis.3 Plaintiffs rely on a sworn declaration of
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`Kevin D. Dayaratna, a statistician and data scientist at the Heritage Foundation’s
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`Center for Data Analysis, in support of their assertions. Because EO 13990
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`provides that federal agencies “shall” use the Interim Estimates “when monetizing
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`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,” 86 Fed. Reg. 7040,
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`Plaintiffs assert that the Interim Estimates “will inevitably be used to justify
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`increased regulation and restrictions in innumerable areas, affecting virtually every
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`aspect of daily life.” ECF No. 18 at 19.
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`In support of this argument, Plaintiffs cite an academic review in 2017, which
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`identified “at least eighty-three separate regulatory or planning proceedings conducted by
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`six different federal agencies [that] have used the SCC or SCM in their analyses” through
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`For example, Plaintiffs describe in detail why the “discount rate” applied by the
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`Working Group in developing the Interim Estimates was faulty. The discount rate is a
`“percentage factor designed to calculate the net present value of the future anticipated
`damages from a marginal increase in emissions of a particular gas.” ECF No. 18 at 17.
`According to Plaintiffs, the discount rates applied by the Working Group were too low,
`resulting in exaggerated “social costs” of the corresponding greenhouse gases. See id.
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`5
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`mid-2016. Am. Compl., ECF No. 6 at ¶¶ 160-61. These included agency actions related
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`to energy, transportation, and agriculture, among other areas, and regulations of
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`everything from ozone standards to household appliances. Id.
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`Complaint
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`Plaintiffs filed suit on March 8, 2021. In their amended complaint, filed on
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`March 26, 2021, they assert four causes of action: (1) “Violation of the Separation of
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`Powers,” (2) “Violation of Agency Statutes,”4 (3) “Procedural Violation of the
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`Administrative Procedure Act (APA),” and (4) “Substantive Violation of the APA.”
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`Plaintiffs seek declaratory and injunctive relief.
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`Post-Complaint Notice and Guidance from the Executive Office
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`On May 7, 2021, the Office of Management and Budget (“OMB”) published a
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`notice in the Federal Register, inviting public comments “on the [Interim Estimates] as
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`well as on how best to incorporate the latest peer-reviewed science and economics
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`literature in order to develop an updated set of SC-GHG estimates.” OMB, Notice of
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`Availability and Request for Comment on ‘‘Technical Support Document: Social Cost of
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`Carbon, Methane, and Nitrous Oxide Interim Estimates Under E.O. 13990”, 86 Fed.
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`Reg. 24669, 24669 (May 7, 2021). Comments were due by June 21, 2021. Id.
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`On June 3, 2021, the Office of Information and Regulatory Affairs (“OIRA”)
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`Specifically, Plaintiffs assert that “Section 5 of EO 13990 and the Working
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`Group’s Interim Estimates violate the statutes that confer authority on various federal
`agencies to conduct cost-benefit analyses in regulatory actions that involve emissions of
`carbon dioxide, methane, and/or nitrous oxide.” ECF No. 6 at ¶ 204.
`6
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`issued a “Frequently Asked Questions” document related to the Interim Estimates. See
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`ECF No. 28-4, OIRA, Social Cost of Greenhouse Gas Emissions: Frequently Asked
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`Questions (FAQs), (June 3, 2021), also available at https://www.whitehouse.gov/wp-
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`content/uploads/2021/06/Social-Cost-of-Greenhouse-Gas-Emissions.pdf. The document
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`states that agencies should follow EO 13990’s requirement to use the Interim Estimates
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`“as they follow other requirements for preparing E.O. 12866 benefit-cost analysis.”5 Id.
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`at 1. The document further states that “[d]irectives issued in executive orders and OIRA
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`guidance are always made subject to applicable law. . . . When an agency conducts
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`benefit-cost analysis pursuant to specific statutory authorities, those authorities must
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`control the agency’s development and use of the analysis in taking an agency action the
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`issue.” Id. at 2.
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`Motion to Dismiss
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`Defendants move to dismiss Plaintiffs’ amended complaint for lack of subject
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`matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and,
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`alternatively, for failure to state a claim pursuant to Rule 12(b)(6). Defendants assert that
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`Plaintiffs lack standing to pursue their claims because their allegations of injury all stem
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`from hypothetical future regulations that they speculate may be issued in reliance on the
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`EO 12866, issued by President Bill Clinton, directs agencies to follow certain
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`principles, including assessing costs and benefits of available regulatory alternatives and
`selecting approaches that maximize net benefits, “unless a statute requires another
`regulatory approach.” Exec. Order No. 12866, Regulatory Planning and Review, 58 Fed.
`Reg. 51735 § 1(a) (Sept. 30, 1993). It also establishes a regulatory-review process to be
`coordinated by OMB and OIRA. Id.
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`7
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`Interim Estimates. Defendants further maintain that Plaintiffs’ alleged injuries are not
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`redressable by a favorable decision in this lawsuit because, even without EO 13990 or the
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`Interim Estimates, agencies may consider the social costs of greenhouse gases and may
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`arrive at the same—or, from Plaintiffs’ perspective, worse—regulations either in light of
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`those costs or in light of the myriad other factors considered by agencies in the
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`rulemaking process.6
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`Regarding Plaintiffs’ additional allegations of harm to their sovereign interests or
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`to their ability to participate in the notice-and-comment rulemaking, Defendants contend
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`that these, too, are neither concrete nor particularized enough to demonstrate Article III
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`standing.
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`For similar reasons, Defendants argue that Plaintiffs’ claims are not ripe. Rather,
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`according to Defendants, “[i]f an agency one day relies on the Interim Estimates to justify
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`some action that actually causes Plaintiffs a concrete injury, they can challenge that
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`specific agency action (including its use of the Interim Estimates) at that time.” ECF No.
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`28 at 43.
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`In any event, Defendants argue that Plaintiffs’ claims are meritless. As to Count
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`One, Defendants maintain that there is no basis to imply an equitable cause of action
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`arising from an alleged violation of separation of powers. If there were, Defendants
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`Defendants argue that a separate redressability problem arises because Plaintiffs’
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`request for relief would necessarily require the Court to enjoin the President’s exercise of
`his official duties, which the Court cannot do. Thus, at a minimum, Defendants ask that
`the Court dismiss President Biden as a Defendant.
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`8
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`contend that the claim would fail here because EO 13990 is well within the President’s
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`Article II authority and is consistent with the longstanding presidential practice of
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`requiring cost-benefit analyses. Defendants note that that, since the Ninth Circuit’s
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`decision in Center for Biological Diversity v. National Highway Traffic Safety
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`Administration, 538 F.3d 1172 (9th Cir. 2008),7 federal agencies have specifically
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`employed estimates of the social cost of greenhouse gases prepared by interagency
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`working groups in connection with related cost-benefit analyses.8
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`Regarding Count Two, Defendants contend that no violation of agency statutes
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`could occur because EO 13990 expressly defers to any conflicting federal statute.
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`As to Plaintiffs’ claims under the APA (Counts Three and Four), Defendants
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`maintain that Plaintiffs have not identified a final agency action from which judicial
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`In Center for Biological Diversity, the Ninth Circuit held that an agency’s failure
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`to monetize the benefits of greenhouse gas emissions reduction as part of its cost-benefit-
`analysis before issuing a rule setting fuel economy standards was arbitrary and
`capricious. 538 F.3d at 1200 (noting that “while the record shows that there is a range of
`values, the value of carbon emissions reduction is certainly not zero”).
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` 8
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`In 2017, President Donald J. Trump issued EO 13783, which disbanded the
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`Working Group and withdrew its prior analyses as “no longer representative of the
`administration’s policy.” Exec. Order 13783 § 5(b), Promoting Energy Independence
`and Economic Growth, 82 Fed. Reg. 16093 (Mar. 28, 2017). However, President Trump
`further ordered that “when monetizing the value of changes in greenhouse gas emissions
`resulting from regulations, including with respect to the consideration of domestic versus
`international impacts and the consideration of appropriate discount rates, agencies shall
`ensure, to the extent permitted by law, that any such estimates are consistent with the
`guidance contained in [the Office of Management and Budget] Circular A-4.” Id. § 5(c).
`According to Defendants, federal agencies under President Trump continued to estimate
`the social cost of greenhouse gases in their cost-benefit analysis, albeit applying different
`models to calculate those costs, such as a higher discount rate.
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`9
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`review may be sought; that neither the President nor the Working Group is an agency
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`subject to suit under the APA; and that even if the Interim Estimates were subject to
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`notice-and-comment requirements under the APA, Plaintiffs’ claim would still fail under
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`the APA’s harmless-error rule.
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`Motion for Preliminary Injunction
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`Plaintiffs oppose Defendants’ motion to dismiss and affirmatively move to
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`“preliminarily enjoin all defendants, except for the President, from using the social cost
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`of greenhouse gases promulgated in the [Interim Estimates] as binding values in any
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`agency action.” ECF No. 18 at 59. Plaintiffs assert that the Court “may decide to remand
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`for the Interim [Estimates] to proceed through notice-and-comment or invalidate them as
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`arbitrary and capricious.” ECF No. 35 at 25. Plaintiffs also request a prompt ruling
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`“[d]ue to the finality of any rules being promulgated now and the impending issuance of
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`new social costs of greenhouse gases in January 2022.” ECF No. 17 at 1.
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`In response to Defendants’ assertions regarding standing and ripeness, Plaintiffs
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`argue that there is nothing hypothetical about how agencies will use the Interim
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`Estimates. According to Plaintiffs, EO 13990 mandates that federal agencies adopt the
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`Interim Estimates in future rulemaking, regardless of Plaintiffs’ objections thereto and
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`without any public input. Plaintiffs contend that their injuries are not speculative because
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`the Interim Estimates are designed to and “will inevitably be used to justify increased
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`regulatory costs in foundational sectors of the American economy, including energy,
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`agriculture, and manufacturing.” ECF No. 35 at 9.
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`10
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`Plaintiffs maintain that if they wait to challenge the Interim Estimates until future
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`regulations based on those numbers are issued—either in the notice-and-comment phase
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`or through judicial review—their objections “will be disregarded” and “will receive no
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`meaningful consideration.” ECF No. 35 at 9, 11. Plaintiffs likewise maintain that their
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`claims are ripe because the Interim Estimates are a “a self-executing regulation” that will
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`result in immediate injuries to Plaintiffs in the form of “federal regulations using the
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`Interim Values that will encroach on Plaintiff States’ authority in areas subject to
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`traditional state regulation.” ECF No. 35 at 27.
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`Next, Plaintiffs argue that all four factors relevant to the preliminary injunction
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`analysis favor them. Plaintiffs argue that they are likely to succeed on the merits of
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`Count One (Violation of the Separation of Powers) and Count Three (Procedural
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`Violation of the APA) of their amended complaint.9 Regarding Count One, Plaintiffs
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`argue that “dictating binding values for the social cost of greenhouse gases for use in
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`federal programs is a quintessentially legislative power that lies exclusively with
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`Congress.” ECF No. 18 at 22. Thus, Plaintiffs contend that Section 5 of EO 13990 is not
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`a valid exercise of executive power but an exercise of legislative power that requires
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`statutory authority.
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`Although Plaintiffs’ motion for preliminary injunction does not address the merits
`9
`of Counts Two and Four, Plaintiffs discuss these counts in their opposition to
`Defendants’ motion to dismiss. There, Plaintiffs assert that Count Two plausibly alleges
`that the Working Group is acting ultra vires, or without statutory authority, and that
`Count Four plausibly alleges that the Working Group is an agency and the issuance of the
`Interim Estimates a final agency action.
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`11
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`Regarding Count Three, Plaintiffs argue that the Working Group is an agency
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`under the APA; that the binding nature of the Interim Estimates render them a final
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`agency action and a substantive rule under the APA; and that the Working Group violated
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`the APA’s procedural requirements when it promulgated the Interim Estimates without
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`providing notice to the public and an opportunity to comment.
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`Plaintiffs further assert that, absent a preliminary injunction, they will suffer
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`irreparable injury in the form of: (i) deprivation of their ability to file comments objecting
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`to the Interim Estimates, (ii) deprivation of their ability to participate meaningfully in
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`future federal agency proceedings, because the Interim Estimates will be essentially
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`shielded from further review; (iii) injury to their sovereign interests in administering
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`“cooperative-federalism programs,”10 because EO 13990 effectively mandates Plaintiffs
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`to employ the Interim Estimates in administering such programs; (iv) injury to Plaintiffs’
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`proprietary interests, because the cost of energy and other regulatory goods that Plaintiffs
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`consume will “necessarily increase under the increased regulation mandated by [EO
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`13990] and the Interim Estimates” (ECF No. 18 at 51); and (v) the federalism-based
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`injury inherent in any violation of the separation of powers.
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`Finally, Plaintiffs assert that a preliminary injunction that restores the status quo
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`will impose no cognizable harm on Defendants and will serve the public interest by
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`promoting democratic accountability.
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`As one example of a cooperative-federalism program, Plaintiffs cite the permitting
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`of new stationary sources under the Clean Air Act.
`12
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`In response, Defendants argue that the Court cannot reach Plaintiffs’ motion
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`because the Court lacks subject matter jurisdiction. In any event, Defendants maintain
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`that Plaintiffs would not be entitled to a preliminary injunction because their claims are
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`meritless, they cannot show any imminent or irreparable harm, and an injunction would
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`not serve the public interest.11
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`Standing
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`DISCUSSION
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`“The law of Article III standing, which is built on separation-of-powers principles,
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`serves to prevent the judicial process from being used to usurp the powers of the political
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`branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). “To establish
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`Article III standing, plaintiffs must show (1) an injury in fact, (2) a causal relationship
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`between the injury and the challenged conduct, and (3) that a favorable decision will
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`likely redress the injury.” Animal Legal Def. Fund v. Vaught, No. 20-1538, 2021 WL
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`3482998, at *1 (8th Cir. Aug. 9, 2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555
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`(1992)). These requirements assure that “there is a real need to exercise the power of
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`judicial review in order to protect the interests of the complaining party.” Summers v.
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`Earth Island Inst., 555 U.S. 488, 493 (2009) (internal citations omitted).
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`In addition to the parties’ briefs, the Court has received amicus curiae briefs in
`11
`support of Plaintiffs’ motion for preliminary injunction on behalf of the Texas Public
`Policy Foundation (ECF No. 26) and the Committee for a Constructive Tomorrow (ECF
`No. 33).
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`13
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`“The plaintiffs bear the burden of establishing these elements, and must support
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`each element in the same way as any other matter on which they bear the burden of
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`proof.” Vaught, 2021 WL 3482998, at *1 (citing Lujan, 504 U.S. at 561). “On a motion
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`to dismiss, therefore, the plaintiffs must allege sufficient facts to support a reasonable
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`inference that they can satisfy the elements of standing.” Vaught, 2021 WL 3482998, at
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`*1. “The plaintiff must assert facts that affirmatively and plausibly suggest that the
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`pleader has the right he claims (here, the right to jurisdiction), rather than facts that are
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`merely consistent with such a right.” In re Polaris Mktg., Sales Pracs., & Prod. Liab.
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`Litig., No. 20-2518, 2021 WL 3612758, at *2 (8th Cir. Aug. 16, 2021) (citation omitted).
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`
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`Injury in fact is “‘an invasion of a legally protected interest’ that is ‘concrete and
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`particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
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`Robins, 578 U.S. 856, 136 S. Ct. 1540, 1548, as revised (May 24, 2016) (quoting
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`Lujan, 504 U.S. at 560)). “A ‘concrete’ injury must be ‘de facto’; that is, it must actually
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`exist” in reality, rather than in the abstract.” Spokeo, 136 S. Ct. at1548. “For an injury to
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`be ‘particularized,’ it must affect the plaintiff in a personal and individual way.” Id.
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`“Although imminence is concededly a somewhat elastic concept, it cannot be
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`stretched beyond its purpose, which is to ensure that the alleged injury is not too
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`speculative for Article III purposes—that the injury is certainly impending.” Clapper,
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`568 U.S. at 409 (emphasis in original and citations omitted). “[A]llegations
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`of possible future injury are not sufficient.” Id. (emphasis in original).
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`14
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`“For causation to exist, the injury has to be fairly traceable to the challenged
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`action of the defendant, and not the result of the independent action of some third party
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`not before the court.” Agred Found. v. U.S. Army Corps of Eng’g, 3 F.4th 1069, 1073
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`(8th Cir. 2021) (citation omitted). This “requires the plaintiff to show a sufficiently direct
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`causal connection between the challenged action and the identified harm. That
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`connection cannot be overly attenuated.” Id.
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`“[W]hen the plaintiff is not himself the object of the government action or inaction
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`he challenges, standing is not precluded, but it is ordinarily substantially more difficult to
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`establish.” Lujan, 504 U.S. at 562. “To satisfy that burden, the plaintiff must show at the
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`least that third parties will likely react in predictable ways.” California v. Texas, 141 S.
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`Ct. 2104, 2117 (2021) (citing Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566
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`(2019)).
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`Redressability, the third element of standing, requires plaintiff to show that “it is
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`likely, as opposed to merely speculative, that the injury will be redressed by a favorable
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`decision.” Lujan, 504 U.S. at 561. In assessing redressability, the court must “consider
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`the relationship between the judicial relief requested and the injury suffered.” California
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`v. Texas, 141 S. Ct. 2104, 2115 (2021).
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`Plaintiffs have failed to establish any of these three elements.
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`Injury in Fact
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`
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`Plaintiffs ask the Court to assume that at some point in the future, one or more
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`agencies will “inevitably” issue one or more regulations that rely in some way upon the
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`Case: 4:21-cv-00287-AGF Doc. #: 48 Filed: 08/31/21 Page: 16 of 29 PageID #: 1022
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`Interim Estimates; that such agency will “inevitably” disregard any objections to the
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`methodology by which the Interim Estimates were calculated; and that this yet-to-be-
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`identified regulation will then harm Plaintiffs in a concrete and particularized way. This
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`“theory of standing, which relies on a highly attenuated chain of possibilities, does not
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`satisfy the requirement that threatened injury must be certainly impending.” See Clapper,
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`568 U.S. at 410.
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`Summers v. Earth Island Institute, 555 U.S. 488 (2009) is instructive. There, the
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`Supreme Court held that environmental organizations lacked standing to challenge
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`regulations that exempted a salvage sale of timber on the ground that they failed to
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`demonstrate injury in fact. In so reasoning, the Supreme Court explained that the
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`regulations at issue “neither require[d] nor forb[ade] any action on the part of the
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`[organizations]” but instead merely prescribed “standards and procedures” that governed
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`“the conduct of Forest Service officials engaged in project planning.” 555 U.S. at 493;
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`see also Clapper, 568 U.S. at 401 (holding that the respondents’ theory that there was “an
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`objectively reasonable likelihood that their communications will be acquired
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`under [challenged statute permitting electronic surveillance] at some point in the future
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`[was] . . . too speculative to satisfy the well-established requirement that threatened injury
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`must be ‘certainly impending’”).
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`Likewise here, EO 13990 neither requires nor forbids any action on the part of
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`Plaintiffs but instead merely prescribes standards and procedures governing the conduct
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`of federal agencies engaged in rulemaking and other agency actions when monetizing the
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`Case: 4:21-cv-00287-AGF Doc. #: 48 Filed: 08/31/21 Page: 17 of 29 PageID #: 1023
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`value of changes in greenhouse gas emissions. In such cases, standing is “substantially
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`more difficult to establish.” Lujan, 504 U.S. at 562.
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`
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`Plaintiffs argue that cases like Summers and Clapper do not apply “because
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`instead of merely authorizing the injury, . . . the Executive Order mandates the Interim
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`[Estimates].”12 ECF No. 35 at 21. But Interim Estimates, alone, do not injure Plaintiffs.
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`Cf. City of Kennett, Mo. v. Env’t Prot. Agency, 887 F.3d 424, 431–32 (8th Cir. 2018)
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`(holding that a city had standing to challenge a “total maximum daily load” standard for
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`pollutants in a particular ditch where the standard directly injured the city in the form of
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`compliance costs). The injury that Plaintiffs fear is from hypothetical future regulation
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`possibly derived from these Estimates. That injury is not concrete and therefore
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`insufficient for standing. See Nat’l Ass’n of Home Builders v. E.P.A., 667 F.3d 6, 13
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`(D.C. Cir. 2011) (rejecting theory of standing based on only the “possibility of [harmful]
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`regulation” by federal agency) (emphasis in original).
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`Plaintiffs also argue that “Summers merely stands for the unremarkable
`12
`proposition that a plaintiff lacks an injury to challenge procedural regulations after
`settling the substantive claim causing the injury.” ECF No. 35 at 16. The environmental
`organizations in Summers challenged Forest Service regulations in general and as they
`applied to a particular project (the Burnt Ridge project). See Summers, 555 U.S. at 490-
`91. The Supreme Court noted that the organizations would have established standing
`with respect to the Burnt Ridge project, but by the time the case reached the Supreme
`Court, the parties had settled their dispute over that project. Id. at 494. Thus, the only
`challenge remaining was a challenge to “the regulation in the abstract . . . , apart from any
`concrete application that threaten[ed] imminent harm to [the organizations’] interests.”
`Id. That procedural challenge in the abstract is the one that Plaintiffs here raise. And the
`Supreme Court was clear that plaintiffs lack standing to pursue such a challenge in the
`absence of concrete, imminent harm. Id. The Court observed that, to hold otherwise,
`“would fly in the face of Article III's injury-in-fact requirement.” Id.
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`Case: 4:21-