`
`No. 21A ___
`
`In the Supreme Court of the United States
`
`STATE OF LOUISIANA; et al.,
`Applicants,
`
`
`v.
`
`JOSEPH R. BIDEN, JR., in his official capacity as
`President of the United States; et al.,
`Respondents.
`
`
`APPLICATION TO VACATE AN ORDER OF THE UNITED STATES COURT OF
`APPEALS FOR THE FIFTH CIRCUIT STAYING AN INJUNCTION ISSUED BY
`THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
`LOUISIANA PENDING APPEAL TO THE FIFTH CIRCUIT AND FURTHER
`PROCEEDINGS IN THIS COURT
`To the Honorable Samuel Alito
`Associate Justice of the Supreme Court of the United States
`and Circuit Justice for the Fifth Circuit
`
`
`
`
`TYLER R. GREEN
`DANIEL SHAPIRO
`CONSOVOY MCCARTHY PLLC
`222 S. Main Street, 5th Floor
`Salt Lake City, UT 84101
`(703) 243-9423
`
`
`JEFF LANDRY
` Attorney General
`ELIZABETH B. MURRILL*
` Solicitor General
` *Counsel of Record
`JOSEPH S. ST. JOHN
`SHAE MCPHEE
` Deputy Solicitors General
`LOUISIANA DEPARTMENT OF JUSTICE
`1885 N. Third Street
`Baton Rouge, LA 70802
`(225) 326-6766
`murrille@ag.louisiana.gov
`
`
`April 27, 2022
`
`
`
`
`
`
`
` Counsel for Appellees
`
`
`
`

`

`PARTIES TO THE PROCEEDINGS
`Applicants here were the plaintiffs in district court and appellees
`in the court of appeals: the States of Louisiana, Alabama, Florida,
`Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and
`Wyoming.
`Respondents were the defendants in district court and appellants
`in the court of appeals: Joseph R. Biden, Jr., in his official capacity as
`President of the United States; Cecilia Rouse, in her official capacity as
`Chairwoman of the Council of Economic Advisers; Shalanda Young, in
`her official capacity as Acting Director of the Office of Management and
`Budget; Kei Koizumi, in his official capacity as Acting Director of the
`Office of Science and Technology Policy; Janet Yellen, in her official
`Capacity as Secretary of the Treasury; Deb Haaland, in her official
`capacity as Secretary of the Interior; Tom Vilsack, in his official capacity
`as Secretary of Agriculture; Gina Raimondo, in her official capacity as
`Secretary of Commerce; Xavier Becerra, in his official capacity as
`Secretary of Health and Human Services; Pete Buttigieg, in his official
`capacity as Secretary of Transportation; Jennifer Granholm, in her
`official capacity as Secretary of Energy; Brenda Mallory, in her official
`capacity as Chairwoman of the Council on Environmental Quality;
`Michael S. Regan, in his official capacity as Administrator of the
`Environmental Protection Agency; Gina McCarthy, in her official
`capacity as White House National Climate Advisor; Brian Deese, in his
`official capacity as Director of the National Economic Council; Jack
`Danielson, in his official capacity as Executive Director of the National
`Highway Traffic Safety Administration; the U.S. Environmental
`
`i
`
`
`
`

`

`Protection Agency; the U.S. Department of Energy; the U.S. Department
`of Transportation; the U.S. Department of Agriculture; the U.S.
`Department of the Interior; the National Highway Traffic Safety
`Administration; and the Interagency Working Group on Social Cost of
`Greenhouse Gases.
`
`
`
`ii
`
`
`
`

`

`TABLE OF CONTENTS
`Parties to the proceedings ........................................................................... i
`Table of Authorities .................................................................................... v
`Opinions Below ........................................................................................... 4
`Jurisdiction ................................................................................................. 5
`Statement .................................................................................................... 5
`A. Long-settled rules govern regulatory cost/benefit analysis. ........... 5
`B. EO13990 revives an Internal Working Group and mandates
`“promulgation” and
`immediate government-wide use of
`numerical estimates for the “social costs” of greenhouse gases in
`regulatory cost/benefit analysis. ....................................................... 9
`C. When defending the SC-GHG Estimates in district court, the
`government denied using them, or denied any material impact
`from their use. ................................................................................. 12
`D. The district court issues an injunction with detailed findings of
`fact. ................................................................................................... 13
`E. The Fifth Circuit stays the injunction after the government
`changes position. ............................................................................. 14
`Reasons for Granting the Application ..................................................... 16
`I.
`THIS CASE RAISES QUESTIONS OF SURPASSING NATIONAL
`IMPORTANCE THAT WARRANT CERTIORARI REVIEW AND JUDGMENT
`IN APPLICANTS’ FAVOR. ..................................................................... 16
`A. Whether an agency created by Executive Order can issue
`perhaps the most sweeping regulation in history without a
`pretense of statutory authority, or public notice and
`comment, is a question of indisputable importance. ............ 17
`B. Whether the SC-GHG Estimates constitute a rule subject
`to the APA and to preenforcement judicial review are
`separate questions of national importance. .......................... 21
`C. Whether the Fifth Circuit’s order denying the States
`standing to challenge the SC-GHG Estimates accords with
`
`iii
`
`
`
`

`

`this Court’s precedent is a federalism question of utmost
`importance. ............................................................................. 26
`II. THE COURT OF APPEALS’ STAY ORDER IMPOSES IRREPARABLE HARM
`ON THE APPLICANT STATES. .............................................................. 34
`Conclusion ................................................................................................. 38
`
`
`
`
`
`
`
`
`
`iv
`
`
`
`

`

`TABLE OF AUTHORITIES
`
`Cases
`Ala. Ass’n of Realtors v. HHS,
`141 S.Ct. 2485 (2021) .................................................................. 1, 19, 38
`Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez,
`458 U.S. 592 (1982) ............................................................................... 29
`Anderson v. Loertscher,
`137 S. Ct. 2328 (2017) ........................................................................... 16
`Arizona v. City & Cty. of San Francisco,
`No. 20-1775 (S.Ct.) ................................................................................ 10
`Biden v. Missouri,
`142 S.Ct. 647 (2022) ................................................................................ 1
`Catholic Health Initiatives v. Sebelius,
`617 F.3d 490 (D.C. Cir. 2010) ............................................................... 22
`Ctr. for Biological Diversity v. NHTSA,
`538 F.3d 1172 (9th Cir. 2008) ................................................................. 9
`Doe #1 v. Trump,
`957 F.3d 1050 (9th Cir. 2020) ......................................................... 35, 36
`El Paso Cty., Tex. v. Trump,
`982 F.3d 332 (5th Cir. 2020) ................................................................. 27
`Florida v. Weinberger,
`492 F.2d 488 (5th Cir. 1974) ................................................................. 31
`Hoctor v. U.S. Dep’t of Agric.,
`82 F.3d 165 (7th Cir. 1996) ................................................................... 22
`
` v
`
`

`

`Hollingsworth v. Perry,
`558 U.S. 183 (2010) ............................................................................... 16
`King v. Burwell,
`576 U.S. 473 (2015) ............................................................................... 19
`Laub v. U.S. Dep’t of Interior,
`342 F.3d 1080 (9th Cir. 2003) ............................................................... 32
`Louisiana v. Biden,
`No. 2:21-cv-01074, 2022 WL 438313 (W.D. La. Feb. 11, 2022) ............. 4
`Lujan v. National Wildlife Federation,
`497 U.S. 871 (1990) ............................................................................... 31
`Massachusetts v. E.P.A.,
`549 U.S. 497 (2007) ............................................................. 18, 27, 28, 33
`Nat’l Fed. of Indep. Business v. Dep’t of Labor,
`142 S.Ct. 661 (2022) .............................................................. 1, 17, 20, 37
`Nken v. Holder,
`556 U.S. 418 (2009) ............................................................................... 16
`Ohio Forestry Ass’n, Inc. v. Sierra Club,
`523 U.S. 726 (1998) ............................................................................... 31
`San Diegans for Mt. Soledad Nat’l War Mem’l v. Paulson,
`548 U.S. 1301 (2006) ............................................................................. 16
`State v. Bureau of Land Mgmt.,
`286 F. Supp. 3d 1054 (N.D. Cal. 2018) ................................................... 7
`Texas v. Equal Emp. Opportunity Comm’n,
`933 F.3d 433 (5th Cir. 2019) ................................................................. 32
`Texas v. United States,
`497 F.3d 491 (5th Cir. 2007) ................................................................. 31
`
`vi
`
`
`
`

`

`Texas v. United States,
`787 F.3d 733 (5th Cir. 2015) ................................................................. 38
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) ........................................................... 28, 30
`Toilet Goods Ass’n v. Gardner,
`360 F.2d 677 (2d Cir. 1966), aff’d sub nom. 387 U.S. 158 (1967), and
`aff’d, 387 U.S. 167 (1967) ..................................................................... 23
`United States v. Bass,
`404 U.S. 336 (1971) ............................................................................... 19
`United States v. Riccardi,
`989 F.3d 476 (6th Cir. 2021) ................................................................. 22
`Util. Air Reg. Group v. E.P.A.,
`573 U.S. 302 (2014) ..................................................................... 1, 19, 20
`West Virginia v. EPA,
`136 S.Ct. 1000 (2016) (No. 15A773) ....................................................... 1
`West Virginia v. EPA,
`577 U.S. 1126 (2016) ............................................................................. 16
`West Virginia v. EPA,
`No. 20-1530 (cert. granted Oct. 29, 2021) .............................................. 1
`Wyoming v. U.S. Dep’t of the Interior,
`2020 WL 7641067 (D. Wyo. Oct. 8, 2020) .............................................. 7
`
`Statutes
`5 U.S.C. § 705 ............................................................................................. 5
`28 U.S.C. § 1651 ......................................................................................... 5
`28 U.S.C. §1254(1) ...................................................................................... 5
`
`vii
`
`
`
`

`

`42 U.S.C. §6295 ........................................................................................ 18
`42 U.S.C. §6295(o)(2)(B)(i)(VI) ................................................................. 11
`49 U.S.C. §32902 ...................................................................................... 18
`49 U.S.C. §32902(f) ................................................................................... 11
`
`Other Authorities
`Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Envtl. L.
`Rev. 371, 373 (2015) ................................................................................ 7
`Dep’t of Transportation, Maritime Admin., Bluewater Texas Terminal
`Deepwater Port Project Draft Environmental Impact Statement
`(Oct. 2021) ............................................................................................. 13
`
`DOI, Secretarial Order No. 3399, Department-Wide Approach to the
`Climate Crisis and Restoring Transparency and Integrity to the
`Decisions-Making Process (April 16, 2021) ......................................... 13
`EPA, Revised 2023 and Later Model Year Light-Duty Vehicle
`Greenhouse Gas Emissions Standards, 86 Fed. Reg. 74434 (Dec. 30,
`2021) ...................................................................................................... 13
`Henry J. Friendly, Watchman, What of the Night?, BENCHMARKS
`144-45 (1967) ......................................................................................... 22
`Interagency Working Group on Social Cost of Greenhouse Gases,
`Technical Support Document: Social Cost of Carbon, Methane, and
`Nitrous Oxide, Interim Estimates Under Executive Order 13990
`(Feb. 26, 2021), https://bit.ly/3HUKUVr .............................................. 10
`
`Nina A. Mendelson & Jonathan B. Wiener, Responding to Agency
`Avoidance of OIRA, 37 Harv. J.L. & Pub. Pol’y 447, 454-57 (2014) ..... 5
`
`viii
`
`
`
`

`

`President George W. Bush’s Office of Management and Budget issued
`Circular A-4 in 2003. Circular A-4, at 1 (Sept. 17, 2003),
`https://bit.ly/3xRt9F9 .............................................................................. 6
`Protecting Health & the Environment & Restoring Science to Tackle
` the Climate Crisis, 86 Fed. Reg. 7037, 7040 (Jan. 25, 2021),
`https://bit.ly/37w8egi .............................................................................. 9
`Regulatory Analysis, 68 Fed. Reg. 58366 (Oct. 9, 2003) ........................... 6
`Regulatory Planning and Review, §1(a), 58 Fed. Reg. 51735 (Sept. 30,
`1993), https://bit.ly/39g39t3 .................................................................... 6
`Review (with special reference to the social cost of carbon) at 4-5 (2021),
`https://bit.ly/3rk2hZC ............................................................................. 2
`U.S. Dep’t of Justice, Office of Legal Counsel, Centralizing Border
`Control Policy Under the Supervision of the Attorney General, 26 Op.
`OLC 22, 23 (2002) ................................................................................. 25
`
`ix
`
`
`
`

`

`TO THE HONORABLE SAMUEL ALITO, ASSOCIATE JUSTICE OF THE
`SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE
`FIFTH CIRCUIT:
`This Court has repeatedly granted stay applications or certiorari
`
`petitions to consider how clearly Congress must speak in a specific
`
`statutory provision before a federal agency can remake vast but discrete
`
`swaths of the American economy.1 Properly so. But as grave as the
`
`agency-authority questions were in those cases, they’re featherweights
`
`next to what’s at stake here. A new agency created by presidential edict—
`
`not by Congress—has claimed authority from that same edict—not from
`
`even one statute—to fundamentally alter every regulatory undertaking
`
`of virtually every federal agency.
`
`That new agency is the Interagency Working Group on the Social
`
`Cost of Greenhouse Gases. And that alteration consists of a fabricated
`
`damages model known as the Social Cost of Greenhouse Gas Estimates.
`
`The presidential edict injects those Estimates into every cost/benefit
`
`analysis that federal agencies conduct when deciding whether and how
`
`
`1 E.g., Util. Air Reg. Group v. E.P.A., 573 U.S. 302 (2014); West Virginia v. EPA,
`136 S.Ct. 1000 (2016) (No. 15A773); Ala. Ass’n of Realtors v. HHS, 141 S.Ct. 2485
`(2021); Biden v. Missouri, 142 S.Ct. 647 (2022); Nat’l Fed. of Indep. Business v. Dep’t
`of Labor, 142 S.Ct. 661 (2022); West Virginia v. EPA, No. 20-1530 (cert. granted Oct.
`29, 2021).
`
` 1
`
`

`

`to regulate. The Estimates’ stated purpose is to try to approximate global
`
`harms to society from greenhouse gas emissions attendant to objects of
`
`regulated activities. But the obvious relationship between the Estimates
`
`and regulatory power lays bare their intended use: the Estimates “help[]
`
`determine the stringency of numerous regulations designed to reduce
`
`greenhouse gas emissions,” and “a higher number will of course tend to
`
`support aggressive regulations.” Cass R. Sunstein, Arbitrariness Review
`
`(with special reference to the social cost of carbon) at 4-5 (2021),
`
`https://bit.ly/3rk2hZC. In short, the Estimates are a power grab designed
`
`to manipulate America’s entire federal regulatory apparatus through
`
`speculative costs and benefits so that the Administration can impose its
`
`preferred policy outcomes on every sector of the American economy.
`
`The U.S. District Court for the Western District of Louisiana saw
`
`those efforts for what they are after briefing and oral argument on
`
`Applicants’ motion for a preliminary injunction. So it issued a
`
`preliminary injunction prohibiting the Executive Branch from using the
`
`SC-GHG Estimates in regulatory decisionmaking pending full judicial
`
`review. It recognized that the Estimates are not authorized by law,
`
`conflict with several discrete statutory provisions, are arbitrary, and
`
` 2
`
`

`

`were promulgated without required notice and comment. Yet a panel of
`
`the U.S. Court of Appeals for the Fifth Circuit stayed the injunction.
`
`If this Court does not vacate the Fifth Circuit’s stay order, the
`
`Executive Branch will continue using this made-up, nonstatutory metric
`
`to arbitrarily tip the scales toward its preferred policy outcome for every
`
`activity the federal government touches. In effect, that’s everything in
`
`modern American life: the SC-GHG Estimates implicate rulemakings
`
`about the food chain; construction of roads, bridges, and housing; and all
`
`energy-related projects and permitting. So by applying its “monetized”
`
`SC-GHG Estimates, the government can justify killing cows (because
`
`they emit methane), pipeline projects (because pipeline-related projects
`
`might contribute to downstream consumption of oil or gas), road projects
`
`(because concrete and traffic contribute to GHGs), family farms (cows
`
`again, plus fertilizer), electricity generation (because many plants run on
`
`natural gas or coal), manufactured housing (energy costs), and so on.
`
`That’s the very definition of a regulatory re-ordering of the American
`
`economy with enormous political and economic consequences.
`
`And which sentence in the United States Code does the Executive
`
`Branch cite as the source of its congressional authority for any of this?
`
` 3
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`

`

`Zilch.
`
`That cannot be right. Nor can it be reconciled with this Court’s
`
`recent and repeated decisions striving to enforce the constitutionally
`
`mandated separation of powers, particularly on matters of major national
`
`importance. This case thus requires the Court’s immediate intervention
`
`even more than those ones did; this might be the most consequential
`
`rulemaking in American history, culminating in “‘the most important
`
`number you’ve never heard of.’” Sunstein, supra, at 4. This Court should
`
`grant the application and vacate the Fifth Circuit’s stay order.
`
`OPINIONS BELOW
`The district court entered a preliminary injunction on February 11,
`
`2022. Louisiana v. Biden, No. 2:21-cv-01074, 2022 WL 438313 (W.D. La.
`
`Feb. 11, 2022). The opinion and order are reproduced as Appendix A. The
`
`district court then denied Defendants’ Motion For Stay Pending Appeal
`
`on March 9, 2022. That order is reproduced as Appendix B.
`
`The Fifth Circuit, in turn, granted the Defendants’ Motion For Stay
`
`Pending Appeal on March 16, 2022. The opinion is reproduced as
`
`Appendix C. The court of appeals then denied Applicants’ petition for
`
`rehearing and rehearing en banc on April 14, 2022. That order is
`
`reproduced as Appendix D.
`
` 4
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`

`

`JURISDICTION
`This Court has jurisdiction under 28 U.S.C. §1254(1) and has the
`
`authority to grant the Applicants relief under the Administrative
`
`Procedure Act, 5 U.S.C. §705, and the All Writs Act, 28 U.S.C. §1651.
`
`STATEMENT
`The regulatory harms that Executive Order 13990 and the SC-GHG
`
`Estimates inflict on Plaintiff States become apparent when understood
`
`in the context of longstanding federal regulatory practice. Applicants
`
`thus briefly review that practice before describing EO13990 and the
`
`proceedings below.
`
`A. Long-Settled Rules Govern Regulatory Cost/Benefit
`Analysis.
`A now-decades-old bipartisan consensus—spanning at least from
`
`President Nixon to President George W. Bush—requires agencies to
`
`perform vigorous cost/benefit analysis before regulating. See Nina A.
`
`Mendelson & Jonathan B. Wiener, Responding to Agency Avoidance of
`
`OIRA, 37 Harv. J.L. & Pub. Pol’y 447, 454-57 (2014). Embodying this
`
`consensus, President Clinton issued Executive Order 12866, which
`
`instructs agencies “deciding whether and how to regulate” to “assess all
`
`costs and benefits of available regulatory alternatives, including the
`
` 5
`
`

`

`alternative of not regulating.” Regulatory Planning and Review, §1(a), 58
`
`Fed. Reg. 51735 (Sept. 30, 1993), https://bit.ly/39g39t3.
`
`To implement EO12866 and ensure agencies use a “standardiz[ed]”
`
`way of “measur[ing] and report[ing]” the “benefits and costs of Federal
`
`regulatory actions,” President George W. Bush’s Office of Management
`
`and Budget issued Circular A-4 in 2003. Circular A-4, at 1 (Sept. 17,
`
`2003), https://bit.ly/3xRt9F9; see Regulatory Analysis, 68 Fed. Reg. 58366
`
`(Oct. 9, 2003). Circular A-4 has become the cornerstone of regulatory
`
`analysis in the Executive Branch. It gives “highly detailed guidance to
`
`the agencies on the key elements of a ‘good regulatory analysis’ under”
`
`EO12866, “including a clear baseline for comparative purposes,
`
`specifically stated assumptions, an assessment of the sensitivity of the
`
`analytical results to changes in those assumptions, and attention to
`
`ancillary impacts.” Mendelson & Wiener, supra, at 457-58.
`
`Circular A-4 was issued after an extensive and transparent peer
`
`and interagency review, and public notice-and-comment, process. See
`
`Circular A-4, at 1 (“In developing this Circular, OMB first developed a
`
`draft that was subject to public comment, interagency review, and peer
`
`review.”). As relevant here, that process yielded two cornerstone
`
` 6
`
`

`

`cost/benefit instructions. Under Circular A-4, agencies must (1) consider
`
`domestic—rather than global—costs and benefits, and (2) use specific
`
`discount rates. Consider each briefly.
`
`First, Circular A-4 unambiguously instructs agencies to make
`
`domestic effects the basis of their analysis: “Your analysis should focus
`
`on benefits and costs that accrue to citizens and residents of the United
`
`States. Where you choose to evaluate a regulation that is likely to have
`
`effects beyond the borders of the United States, these effects should be
`
`reported separately.” Circular A-4, at 15 (emphasis added). Courts have
`
`recognized this unmistakable direction to focus on domestic, rather than
`
`global, effects. See, e.g., Wyoming v. U.S. Dep’t of the Interior, 2020 WL
`
`7641067, at *21 (D. Wyo. Oct. 8, 2020) (noting that Circular A-4
`
`mandates a national focus); State v. Bureau of Land Mgmt., 286 F. Supp.
`
`3d 1054, 1069 (N.D. Cal. 2018) (Circular A-4 “does not specifically
`
`mandate that agencies consider global impacts”). Reflecting this clear
`
`directive, “the typical agency practice is, in fact, to leave foreign impacts
`
`out of cost-benefit analyses entirely.” Arden Rowell, Foreign Impacts and
`
`Climate Change, 39 Harv. Envtl. L. Rev. 371, 373 (2015).
`
` 7
`
`

`

`Second, discount rates matter a great deal in regulatory cost/benefit
`
`analysis because “[b]enefits and costs do not always take place in the
`
`same time period.” Circular A-4, at 31. Because people “plac[e] a higher
`
`value on current consumption than on future consumption,” agencies
`
`should use “a discount factor … to adjust the estimated benefits and costs
`
`for differences in timing.” Id. at 32. “The further in the future the benefits
`
`and costs are expected to occur, the more they should be discounted.” Id.
`
`Given those economic realities, the Executive Branch had long used
`
`a 7 percent discount rate because that “approximates the opportunity
`
`cost of capital, and it is the appropriate discount rate whenever the main
`
`effect of a regulation is to displace or alter the use of capital in the private
`
`sector.” Id. at 33. But Circular A-4 also recognizes, based on material
`
`accumulated in OMB’s extensive internal and public review, that a lower
`
`discount rate may be appropriate in certain circumstances. So Circular
`
`A-4 instructs agencies to “provide estimates of net benefits using both 3
`
`percent and 7 percent” discount rates. Id. at 34.
`
` 8
`
`

`

`B. EO13990 Revives an Internal Working Group and Mandates
`“Promulgation” and Immediate Government-Wide Use of
`Numerical Estimates for the “Social Costs” of Greenhouse
`Gases in Regulatory Cost/Benefit Analysis.
`On January 20, 2021, President Biden issued Executive Order
`
`13990. EO13990 revives a nonstatutory agency—the Interagency
`
`Working Group—and purports to vest it with power to promulgate
`
`numerical estimates for the “social costs” of greenhouse gases. Protecting
`
`Health & the Environment & Restoring Science to Tackle the Climate
`
`Crisis, 86 Fed. Reg. 7037, 7040 (Jan. 25, 2021), https://bit.ly/37w8egi.
`
`The Biden IWG and SC-GHG Estimates trace their lineage to the
`
`Obama Administration. Their impetus was a Ninth Circuit panel’s
`
`holding, based on one oral-argument concession from one federal
`
`attorney, that it was arbitrary and capricious for the National Highway
`
`Traffic Safety Administration not to “monetize” the “benefits of
`
`greenhouse gas emissions reduction” in a discrete rulemaking about fuel-
`
`economy standards for light-duty trucks. See Ctr. for Biological Diversity
`
`v. NHTSA, 538 F.3d 1172, 1198-1203 (9th Cir. 2008). Seizing on that
`
`opinion—and laying groundwork that President Biden would follow:
`
`acquiescing in adverse court decisions favoring the administration’s
`
`policy goals, see Arizona v. City & Cty. of San Francisco, No. 20-1775
`
` 9
`
`

`

`(S.Ct.)—President Obama used the Ninth Circuit’s opinion to establish
`
`his own IWG, which published its own SC-GHG Estimates (carbon first;
`
`others later) and likewise mandated their use across federal agencies.
`
`But then as now, the Executive Branch never cited any statutory
`
`authority allowing it to propound the Estimates. Nor did either
`
`Administration subject its Estimates to notice and comment. And now,
`
`EO13990 expands the Estimates’ required use beyond mere cost/benefit
`
`analyses in rulemakings into the vague, unbounded domains of “other
`
`relevant agency actions.” 86 Fed. Reg. at 7040.
`
`The Biden IWG released its SC-GHG Estimates just over a month
`
`after President Biden signed EO13990. See Interagency Working Group
`
`on Social Cost of Greenhouse Gases, Technical Support Document: Social
`
`Cost of Carbon, Methane, and Nitrous Oxide, Interim Estimates Under
`
`Executive Order 13990 (Feb. 26, 2021), https://bit.ly/3HUKUVr. The
`
`Biden IWG did not solicit or receive comments—or any public input or
`
`peer review—despite EO13990’s directive to “solicit public comment;
`
`engage with the public and stakeholders; [and] seek the advice of ethics
`
`experts.” 86 Fed. Reg. at 7041. Instead, it merely re-adopted the Obama
`
`IWG’s numbers, adjusted for inflation. TSD, supra, at 5 n.3.
`
` 10
`
`

`

`As a result, the Estimates repeat the Obama IWG’s errors by
`
`upending decades of settled practice in Circular A-4’s way for calculating
`
`regulatory costs in two critical ways. First, they expressly “tak[e] global
`
`damages into account” (instead of limiting the analysis to domestic
`
`impacts) based on the IWG’s view “that a global perspective is essential
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`for SC-GHG estimates because climate impacts occurring outside U.S.
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`borders can directly and indirectly affect the welfare of U.S. citizens and
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`residents.” TSD, supra, at 3. So much for Congress’s directions, e.g., that
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`agencies must set federal energy conservation standards based on
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`“national” needs, 42 U.S.C. §6295(o)(2)(B)(i)(VI), or set CAFE standards
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`for motor vehicle emissions based in part on “the need of the United States
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`to conserve energy,” 49 U.S.C. §32902(f) (emphasis added).
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`Second, the Estimates employ artificially low discount rates for
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`GHG emissions, below the 3 percent specified in Circular A-4. To take
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`just one example, they expressly use a discount rate of 2.5 percent instead
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`of 3 percent—a change that increases the IWG’s estimated social cost of
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`one metric ton of carbon emissions by 49 percent (from $51 to $76), of one
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`metric ton of methane emissions by 33 percent (from $1500 to $2000),
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`and one metric ton of nitrous oxide emissions by 50 percent (from $18000
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`to $27000); and that’s just for emissions year 2020. TSD, supra, at 5-6.
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`Although EO13990 requires that virtually every agency apply these
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`numbers in virtually every decision, the government has yet to identify a
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`single statute authorizing either the IWG or the SC-GHG Estimates.
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`C. When Defending the SC-GHG Estimates in District Court,
`the Government Denied Using Them, or Denied any
`Material Impact from their Use.
`A coalition of States—Applicants here—challenged EO13990 and
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`the SC-GHG Estimates in the United States District Court for the
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`Western District of Louisiana. The government defended itself below
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`principally by denying it was using the Estimates—and, by hedging that
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`if they were using them, the Estimates had no material impact on any
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`regulatory process. In effect, the government claimed the Estimates were
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`for purely informational purposes, regardless of EO13990’s use directive.
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`The States, however, showed that the government in fact had
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`deployed the Estimates in a host of costly regulatory actions. As the
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`district court documented, the Estimates are in use across all climate-
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`related Executive Branch decisionmaking. App. A at 16-20. The
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`government is using them in rulemakings. E.g., App. A at 17 (citing EPA,
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`Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas
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`Emissions Standards, 86 Fed. Reg. 74434 (Dec. 30, 2021)). Individual
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`agencies are using them in decisions about energy projects, including oil
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`and gas. E.g., App. A at 18 (citing DOI, Secretarial Order No. 3399,
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`Department-Wide Approach to the Climate Crisis and Restoring
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`Transparency and Integrity to the Decisions-Making Process (April 16,
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`2021)). And agencies are incorporating them in NEPA evaluations. E.g.,
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`App. A at 19 (citing Dep’t of Transportation, Maritime Admin., Bluewater
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`Texas Terminal Deepwater Port Project Draft Environmental Impact
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`Statement (Oct. 2021)). All told, the district court found that government
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`was using the SC-GHG Estimates in dozens of regulatory actions with
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`the potential to impose tens of billions of dollars in costs across all sectors
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`of the American economy. App. A at 15-20, 31.
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`D. The District Court Issues an Injunction with Detailed
`Findings of Fact.
`After extensive briefing, evidentiary submissions, and oral
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`argument, the district court issued a preliminary injunction on February
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`11, 2022, with detailed findings. App. A. The court first held it had
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`jurisdiction to adjudicate the States’ claims. Id. at 11-27. The court then
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`held that EO13990 and the Estimates likely exceed the Executive
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`Branch’s authority because they are not authorized by any grant of
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`statutory power. Id. at 29-34. The Estimates are also likely unlawful
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`under the Administrative Procedure Act, it reasoned, because they were
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`not promulgated after notice-and-comment procedures, are arbitrary and
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`capricious, and violated several statutory provisions. Id. at 34-38. The
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`court next found that EO13990 and the Estimates irreparably harm the
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`States by reducing their tax revenues, harming their citizens’ economic
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`welfare, imposing additional duties on the States and State agencies in
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`cooperative federalism programs, and divesting the States’ procedural
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`rights under the APA. Id. at 40-43. Finally, the court determined the
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`balance of harms and public interest “weigh heavily in favor of granting
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`a preliminary injunction.” Id. at 44.
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`E. The Fifth Circuit Stays the Injunction After the Government
`Changes Position.
`After the district court issued its injunction, the Government did a
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`shocking about-face. It asked the Fifth Circuit to stay the injunction, now
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`complaining—despite arguing otherwise in district court for months—
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`that the SC-GHG Estimates were being used in dozens of federal actions
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`and that federal government operations would essentially freeze if
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`agencies could not continue using the Estimates. App. C at 6. The court
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`of appeals accepted those arguments and stayed the injunction to allow
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`the government’s “continued use of” the SC-GHG Estimates. Id. at 7.
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`On that score, how