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.
`
`
`APPENDIX TO APPLICATION TO VACATE AN ORDER OF THE U.S. COURT
`OF APPEALS FOR THE FIFTH CIRCUIT STAYING AN INJUNCTION FROM
`THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA
`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 Applicants
`
`

`

`Appendix A
`Appendix A
`
`

`

`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 1 of 44 PageID #: 4143
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`LAKE CHARLES DIVISION
`
`STATE OF LOUISIANA ET AL
`
`CASE NO. 2:21-CV-01074
`
`VERSUS
`
`JUDGE JAMES D. CAIN, JR.
`
`JOSEPH R BIDEN JR ET AL
`
`MAGISTRATE JUDGE KAY
`
`MEMORANDUM RULING
`
`Before the Court is a “Motion for Preliminary Injunction” (Doc. 53) filed by the
`
`States of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota,
`
`Texas, West Virginia, and Wyoming (collectively referred to as the “Plaintiff States”). The
`
`Plaintiff States move pursuant to Rule 65 of the Federal Rules of Civil Procedure for a
`
`preliminary injunction against Defendants Joseph R. Biden, Jr., Cecilia Rouse, Shalanda
`
`Young, Kei Koizumi, Janet Yellen, Deb Haaland, Tom Vilsack, Gina Raimondo, Xavier
`
`Becerra, Pete Buttigieg, Jennifer Granholm, Brenda Mallory, Michael S. Regan, Gina
`
`McCarthy, Brian Deese, Jack Danielson, U.S. Environmental Protection Agency, U.S.
`
`Department of Energy, U.S. Department of Transportation, U.S. Department of
`
`Agriculture, U.S.
`
` Department of Interior, National Highway Traffic Safety
`
`Administration, and the Interagency Working Group on Social Cost of Greenhouse Gases
`
`(hereinafter collectively referred to as “Defendants”).
`
`Plaintiff States also move to make the Order effective immediately and to remain in
`
`effect pending the final resolution of this case, or until further orders of this Court, the
`
`United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.
`
`App. A-1
`
`

`

`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 2 of 44 PageID #: 4144
`
`I.
`
`BACKGROUND
`
`On April 22, 2021, the Plaintiff States filed a Complaint [doc. 1] against the
`
`Government Defendants seeking declaratory and injunctive relief as a result of Executive
`
`Order 13990 (“EO 13990”). EO 13990 reinstated the Interagency Working Group (“IWG”)
`
`on Social Costs of Greenhouse Gas Emissions (“SC-GGE”) and ordered the IWG to
`
`publish Interim Estimates for the Social Cost of Carbon, Nitrous Oxide, and Methane
`
`(collectively referred to as “SC-GHG Estimates”) for agencies to use when monetizing the
`
`value of changes in greenhouse gas emissions resulting from regulations and other relevant
`
`agency actions. EO 13990 provides as follows:
`
`Accounting for the Benefits of Reducing Climate Pollution
`
`(a) It is essential that agencies capture the full costs of greenhouse gas emissions as
`accurately as possible, including by taking global damages into account. Doing
`so facilitates sound decision-making, recognizes the breadth of climate impacts,
`and supports the international leadership of the United States on climate issues.
`The “social cost of carbon” (SCC), social cost of nitrous oxide” (SCN), and
`“social cost of methane” (SCM) are estimates of the monetized damages
`associated with incremental increases in greenhouse gas emissions. They are
`intended to include changes in net agricultural productivity, human health,
`property damage from increased flood risk, and the value of ecosystem services.
`An accurate social cost is essential for agencies to accurately determine the
`social benefits of reducing greenhouse gas emissions when conducting cost-
`benefit analyses of regulatory and other actions.
`
`(b) There is hereby established an Interagency Working Group on the Social Cost
`of Greenhouse Gases (the “Working Group”). The Chair of the Council of
`Economic Advisers, Director or OMB, and Director of the office of Science and
`Technology Policy shall serve as Co-Chairs of the Working Group.
`
`(i) Membership. The Working Group shall also include the following other
`officers, or their designees: the Secretary of the Treasury; the Secretary
`of the Interior; the Secretary of Agriculture; the Secretary of Commerce;
`the Secretary of Health and Human Services; the Secretary of
`Transportation; the Secretary of Energy; the Chair of the Council on
`
`App. A-2
`
`

`

`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 3 of 44 PageID #: 4145
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`Environmental Quality; the Administrator of the Environmental
`Protection Agency; the Assistant to the President and National Climate
`advisor; and the Assistant to the President for Economic Policy and
`director of the National Economic council.
`(ii) Mission and Work. The Working Group shall, as appropriate and
`consistent with applicable law:
`
`(A) Publish an interim SCC, SCN, and SCM within 30 days of the date of this
`order, which agencies shall use when monetizing the value of changes in
`greenhouse gas emissions resulting from regulations and other relevant
`agency actions until final values are published;
`
`
`(B)
`
`
`(C)
`
`Publish a final SCC, SCN, and SCM by no later than January 2022;
`
`Provide recommendations to the President, by no later than September 1,
`2021, regarding areas of decisions-making, budgeting, and procurement by
`the Federal Government where the SCC, SCN, and SCM should be applied;
`
`
`(D) Provide recommendations, by no later than June 1, 2022, regarding a process
`for reviewing, and, as appropriate, updating, the SCC, SCN, and SCM to
`ensure that these costs are based on the best available economics and science;
`and
`
`
`(E)
`
`
`
`Provide recommendations, to be published with the final SCC, SCN, and
`SCM under subparagraph (A) if feasible, and in any event by no later than
`June 1, 2022, to revise methodologies for calculating the SCC, SCN, and
`SCM, to the extent that current methodologies do not adequately take
`account of climate risk, environmental justice, and intergenerational equity.
`
`(iii) Methodology. In carrying out its activities, the working Group shall
`consider the recommendations of the National Academies of Science,
`Engineering, and Medicine as reported in Value Climate Damages: Updating
`Estimation of the Social Cost of Carbon Dioxide (2017) and other pertinent
`scientific literature; solicit public comment; engage with the public and
`stakeholders; seek the advice of ethics experts; and ensure that the SCC, SCN,
`and SCM reflect the interests of future generations in avoiding threats posed by
`climate change.
`
`
`
`
`
`
`
`
`App. A-3
`
`

`

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`
`
`
`
`1.
`
`ISSUES BEFORE THE COURT
`
`The Plaintiff States seek injunctive and declaratory relief on three grounds. First,
`
`they assert that the SC-GHG Estimates violate the procedural requirements of the
`
`Administrative Procedure Act (“APA”) as a substantive rule that did not undergo the
`
`requisite notice-and-comment process. See 5 U.S.C. § 553. Second, the Plaintiff States
`
`claim that President Biden, through EO 13990, and the IWG lack the authority to enforce
`
`the estimates as they are substantively unlawful under the APA and contravene existing
`
`law. See 5 U.S.C. § 706(2)(A)–(C). Third, the Plaintiff States maintain that the Government
`
`Defendants acted beyond any congressional authority by basing regulatory policy upon
`
`global considerations.
`
`The Plaintiff States request a preliminary injunction: (1) ordering Defendants to
`
`disregard the SC-GHG Estimates and prohibiting them from adopting, employing, treating
`
`as binding, or relying upon the work product of the Interagency Working Group (“IWG”);
`
`(2) enjoining Defendants from independently relying upon the IWG’s methodology
`
`considering global effects, discount rates, and time horizons; and (3) ordering Defendants
`
`to return to the guidance of Circular A-4, explained infra, in conducting regulatory
`
`analysis.
`
`The issues presently before the Court are: (1) whether the Plaintiff States satisfy the
`
`doctrine of standing; (2) whether the Plaintiff States assert claims subject to judicial review
`
`under the APA; and (3) whether the Plaintiff States satisfy the requirements to obtain a
`
`preliminary injunction.
`
`App. A-4
`
`

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`
`
`To be clear, the Court is ruling only on the actions of the federal agencies and
`
`whether the agencies, by implementing the estimates and considering global effects—
`
`violate the APA and whether President Biden upon signing EO 13990, violated the
`
`separations of powers clause of the United States Constitution. The Court has the authority
`
`to enjoin federal agencies from implementing a rule—mandated by an executive order or
`
`not—that violates the APA or violates the separation of powers clause. Importantly, the
`
`Court is not opining as to the scientific issues regarding greenhouse gas emissions, their
`
`effects on the environment, or whether they contribute to global warming.
`
`HISTORY OF THE ADMINISTRATIVE PROCEDURE ACT AND
`2.
`CIRCULAR A-4
`
`
`(i)
`
`The Administrative Procedure Act and Circular A-4
`
`
`
` The Administrative Procedure Act (“APA”) is one of the foremost checks on the
`
`“growth of the Executive Branch [.]” Free Enterprise Fund v. Pub. Co. Accounting
`
`Oversight Bd., 561 U.S. 477, 499 (2010). The APA mandates that agencies take action only
`
`pursuant to express legal authority, in a transparent manner, with opportunity for public
`
`input, in a nonarbitrary manner, and with judicial review. See Texas v. U.S., 809 F.3d 134
`
`(5th Cir. 2015).
`
`
`
`Another check on the growth of the Administrative State is the consensus on
`
`cost/benefits analysis required by Presidents Nixon, Ford, Carter, Reagan and Clinton. See
`
`Nina A. Mendelson & Jonathan B. Wiener, Responding to Agency Avoidance of OIRA, 37
`
`Harv. J.L & Pub. Pol’y 447, 454–57 (2014). President Clinton issued Executive Order
`
`12866, which instructs agencies to “assess all costs and benefits of available regulatory
`
`App. A-5
`
`

`

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`alternatives, including the alternative of not regulating” when “deciding whether and how
`
`to regulate.” 1
`
`
`
`In 2003, President George W. Bush’s Office of Management and Budget issued
`
`Circular A-4 to implement EO 12866 and ensure agencies use a “standardiz[ed]” way of
`
`“measur[ing] and report[ing]” the “benefits and costs of Federal regulatory actions.”2
`
`Circular A-4 has become the cornerstone of regulatory analysis in the Executive Branch.3
`
`Circular A-4 provides “highly detailed guidance to the agencies on the key elements
`
`of a ‘good regulatory analysis’ under EO 12866—specifically it includes a clear baseline
`
`for comparative purposes, specifically states 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. Relevant to this litigation, Circular A-
`
`4 contains two key instructions: (1) agencies are to use both 3 and 7 percent discount rates
`
`when conducting regulatory cost/benefit analysis; and (2) agencies are to consider
`
`domestic, rather than global, costs and benefits.4
`
`Discount factors are used to adjust the estimated benefits and costs for differences
`
`in timing. The further in the future the benefits and costs are expected to occur, the more
`
`they should be discounted.5 “When, and only when, the estimated benefits and costs have
`
`been discounted, they can be added to determine the overall value of net benefits.”6
`
`1 Plaintiffs’ exhibit 1 attached to St. John Declaration Doc. 55.
`2 Id. attached as exhibit 5, Circular A-4, p. 1.
`3 Anne E. Smith, Ph.D. Declaration, ¶ ¶ 18-19, Doc. 56.
`4 Plaintiff’s exhibit 5, Circular A-4.
`5 Id. p. 32.
`6 Id.
`
`App. A-6
`
`

`

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`Prior to Circular A-4, the Executive Branch used a 7 percent discount rate because
`
`it “reflects the returns to reals estate and small business capital as well as corporate capital”7
`
`and “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.”8 In certain circumstances a lower discount rate may be appropriate,
`
`therefore Circular A-4 instructs agencies to “provide estimates of net benefits using both 3
`
`and 7 percent.”9
`
`The second instruction in Circular A-4 requires agencies to make domestic effects
`
`the basis of their analysis.10 See Wyoming v. United States Dep’t of the Interior, 2020 WL
`
`7641067 at *21 (D. Wyo. Oct. 8, 2020) (noting that Circular A-4 mandates a national
`
`focus): States v. Bureau of Land Mgmt., 286 F.Supp.3d 1054, 1069 (N.D. Cal. 2018)
`
`(“While Plaintiff argue that the same Circular directs BLM to encompass ‘all the important
`
`benefits and costs likely to result from the rule,’ including ‘any important ancillary
`
`benefits,’ it does not specifically mandate that agencies consider global impacts.”)
`
`(ii) The Social Cost of Greenhouse Gases
`
`
`
`Carbon dioxide, methane, and nitrous oxide, also referred to as greenhouse gases11
`
`are ever-present byproducts that are produced by activity from energy production to
`
`agriculture to waste disposal.
`
`7 Id.
`8 Id.
`9 Id. at p. 34.
`10 “Your analysis should focus on benefits and costs that accrue to citizens and residents of the United States. Where
`you choose to evaluate a regulation that is likely to have effects beyond the borders of the United States, these
`effects should be reported separately.” Id. at p. 15.
`11 Gases that trap heat in the atmosphere are called greenhouse gases. Exhibit 42 attached to Plaintiffs’ exhibit 1, p.
`2, St. John Declaration. Doc. 55-42.
`
`App. A-7
`
`

`

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`Carbon dioxide is produced from burning fossils fuels such as coal, natural gas, and
`
`oil, and solid wastes, trees, chemical reactions,12 and other biological materials.13 Carbon
`
`dioxide is removed from the atmosphere when it is absorbed by plants as part of the
`
`biological carbon cycle.14
`
`Methane is emitted during the production and transport of coal, natural gas, and oil.
`
`Methane emissions also result from livestock and other agricultural practices, land use and
`
`by the decay of organic waste in municipal solid waste landfills.15
`
`Nitrous oxide is emitted during agricultural practices, land use, industrial activities,
`
`combustion of fossil fuels and solid waste, as well as during treatment of wastewater.16
`
`Fluorinated gases
`
`include hydrofluorocarbons, perfluorocarbons,
`
`sulfur
`
`hexafluoride, and nitrogen trifluoride. They are synthetic, powerful greenhouse gases
`
`emitted from a variety of industrial process. These gases are typically emitted in smaller
`
`quantities, but because they are potent greenhouse gases, they are sometimes referred to as
`
`High Global Warming Potential (“High GWP gases”).17
`
`Each gas’s effect on climate change depends upon: (1) how much is in the
`
`atmosphere; (2) how long they stay in the atmosphere; and (3) how strongly they impact
`
`the atmosphere.18
`
`
`
`
`
`12 E.g., manufacture of cement.
`13 Exhibit 42 attached to Plaintiffs’ exhibit 1, St. John Declaration.
`14 Id.
`15 Id.
`16 Id.
`17 Id.
`18 Id.
`
`App. A-8
`
`

`

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`
`
`(iii) President Obama’s role
`
`
`
`In 2009, President Obama convened an Interagency Working Group (“IWG”) to
`
`establish estimates of the social cost of carbon (“SCC”) that all agencies must use in their
`
`regulatory cost/benefit analysis. In the Spring of 2010, the IWG presented final SCC
`
`estimates which purported to use Circular A-4 as its starting point but rejected two of its
`
`fundamental tenets—the 3 and 7 percent discount rates, and the domestic effects as the
`
`basis of their analysis. In 2016, the IWG issued estimates for the Social Cost of Methane
`
`(“SCM”) and the Social Cost of Nitrous Oxide (“SCN”).
`
`The IWG established by the Obama administration was dismantled by the Trump
`
`administration,19 and reinstated by the Biden administration through Executive Order
`
`13990, issued on January 20, 2021.
`
`(iv) President Biden’s Executive Order 13990
`
`
`
`On January 20, 2021, President Biden issued Executive Order 13990. 86 Fed. Reg.
`
`7037 (Jan. 20, 2021). Section 5 of EO 13990 directs federal agencies to “capture the full
`
`costs of greenhouse gas emissions as accurately as possible, including by taking global
`
`damages into account.” 86 Fed. Reg. at 7040. Section 5(b)(ii)(A) further provides that “the
`
`Working Group shall . . . 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
`
`19 In 2017, the Trump administration disbanded the IWG, rescinded its technical support documents, and directed
`agencies to return to Circular A-4’s guidance when analyzing the value of changes in greenhouse gas emissions. Exec.
`Order No. 13783, 82 Fed. Reg. 16093 (Mar. 28, 2017).
`
`
`App. A-9
`
`

`

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`greenhouse gas emissions resulting from regulations and other relevant agency actions until
`
`final values are published.” Exec. Order No. 13990, 86 Fed. Reg. 7037, 7040 (Jan. 20,
`
`2021).
`
`
`
`On February 26, 2021, the IWG announced the SC-GHG Estimates as directed by
`
`EO 13990 (“Current SC-GHG Estimates”). The Current SC-GHG Estimates are identical
`
`to those issued by the Obama Administration in the 2016 Technical Support Document
`
`and addendum, adjusted for inflation.
`
`(v) Relief sought
`
`
`
`Plaintiff States move to enjoin and restrain Defendants from:
`
`(1) Adopting, employing, treating as binding, or relying upon the work product of
`
`the Interagency Working Group, including without limitation, any and all Social
`
`Cost of Greenhouse Gas estimates published by the Interagency Working Group;
`
`(2) Adopting, employing, treating as binding, or relying upon any Social Cost of
`
`Greenhouse Gas estimates based on global effects or that otherwise fails to
`
`comply with applicable law;
`
`(3) Adopting, employing, treating as binding, or relying upon any estimate of Social
`
`Cost of Greenhouse Gases that does not utilize discount rates of 3 and 7 percent
`
`or that otherwise does not comply with Circular A-4; and
`
`(4) Relying upon or implementing Section 5 of Executive Order 13990 in any
`
`manner.
`
`
`
`
`
`App. A-10
`
`

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`
`
`II.
`
`STANDING
`
`
`
`The Court must first address the threshold question regarding whether the Plaintiff
`
`States have standing to bring this suit.
`
`Article III of the Constitution limits the federal courts’ jurisdiction to “Cases” and
`
`“Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130,
`
`(1992). One “essential and unchanging part of the case-or-controversy requirement” is the
`
`doctrine of standing. Id. at 560. The party invoking federal jurisdiction bears the burden of
`
`establishing standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 133 S. Ct.
`
`1138, 1148, 185 (2013). “In the preliminary-injunction context, plaintiffs must make a
`
`‘clear showing’ of standing” to obtain relief. Tex. Democratic Party v. Abbott, 978 F.3d
`
`168, 178 (5th Cir. 2020) cert. denied, 141 S.Ct. 1124 (2021); see Tex. All. for Retired Ams.
`
`v. Hughs, 976 F.3d 564, 567 n.1. (5th Cir. 2020) (contrasting the ordinary showing of
`
`standing as opposed to what is required to maintain a preliminary injunction”).
`
`Accordingly, plaintiffs must satisfy the three elements that constitute “the irreducible
`
`constitutional minimum of standing”: (1) injury in fact; (2) causal connection (the injury
`
`has to be fairly traceable to the challenged action); and (3) redressability (the injury must
`
`be likely, as opposed to merely speculative that it will be redressed by a favorable decision).
`
`Lujan, 504 U.S. at 560. “[T]he presence of one party with standing is sufficient to satisfy
`
`Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad. &
`
`Institutional Rights, Inc., 547 U.S. 47, 52 n.2, 126 S. Ct. 1297 (2006). Yet, “a plaintiff must
`
`demonstrate standing for each claim he seeks to press and for each form of relief that is
`
`App. A-11
`
`

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`sought.” Town of Chester v. Laroe Estates, Inc., __ U.S. __, 137 S. Ct. 1645, 1650 (2017)
`
`(citation omitted).
`
`
`
`Importantly, “states are not normal litigants for the purposes of invoking federal
`
`jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 526, 127 S. Ct. 1438 (2007).
`
`Accordingly, the presumption of “special solicitude” may be available to a state “exercising
`
`a procedural right created by Congress and protecting a quasi-sovereign interest.” Texas v.
`
`United States, 809 F.3d 134, 162 (5th Cir. 2015).
`
`1. Injury in fact
`
`
`
`To satisfy the injury-in-fact requirement, the Plaintiffs must show that they
`
`“suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
`
`and ‘actual or imminent, not conjectural and hypothetical.’” Spokeo, Inc. v. Robins, 578
`
`U.S. 856, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560. Allegations of
`
`“future injury may suffice if the threatened injury is ‘certainly impending’ or there is a
`
`‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S.
`
`149, 158, 134 S. Ct. 2334 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5,
`
`133 S. Ct. 1138 (2013)).
`
`Plaintiff States allege direct injury to their sovereign, fiscal, procedural, and parens
`
`patriae interests. As to their sovereign interests, Plaintiff States claim that they are directly
`
`injured by the Government Defendants’ alteration of cooperative federalism programs.
`
`Specifically, they contend that the SC-GHG Estimates impose new obligations on them
`
`when they participate in cooperative federalism programs. The Fifth Circuit has
`
`recognized that this type of “increased regulatory burden typically satisfies the injury in
`
`App. A-12
`
`

`

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`fact requirement.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th
`
`Cir. 2015).
`
`To establish direct injury, Plaintiff States assert that: (1) they are substantial
`
`producers of energy and rely upon tax revenue from energy production to perform their
`
`sovereign duties; (2) the SC-GHG Estimates will impose additional duties upon Plaintiff
`
`States when they implement cooperative federalism programs; and (3) the SC-GHG
`
`Estimates will harm Plaintiff States’ ability to purchase affordable energy to carry out their
`
`sovereign functions.
`
`Plaintiffs States argue that the increased SC-GHG Estimates will necessarily cause
`
`regulatory standards for air quality, energy efficiency, and power plant regulation to
`
`become more stringent and result in significant costs increases.20 Moreover, this increased
`
`stringency will directly harm the economies and revenues of Plaintiff States.
`
`For example, the SC-GHG Estimates will directly harm Louisiana’s energy,
`
`chemical manufacturing, and agricultural industries by increasing their regulatory burdens
`
`and driving up the price of electricity that these businesses need to stay in business and
`
`continue to employ Louisianians and contribute to tax revenues.21 The SC-GHG Estimates
`
`will harm Louisiana, the nation’s number two oil producer and a top five national natural
`
`20 See Smith Decl. ¶ ¶ 85092; Dismukes Decl. ¶ 23 (“The use of unsupported SC-GHG estimates in NEPA and other
`regulatory analysis will result in the approval of new regulations that will impose significant costs on Louisiana’s
`economy and business that are not justified by an accurate assessment of their costs and benefits.”)
`21 Dismukes Decl. ¶ ¶ 22-26.
`
`App. A-13
`
`

`

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`gas producer,22 resulting in significantly reduced royalties from leasing sales under Outer
`
`Continental Shelf Act (“OCSLA”).
`
` The SC-GHG will directly harm Kentucky’s economic welfare,23 as demonstrated
`
`by the Obama Administration’s SCC-justified Clean Power Plan by making a new CPP
`
`justifiable under cost/benefit analysis principles. The SC-GHG will harm Alabama’s
`
`ability to exploit its energy resources and harm its industrial sector, and Florida’s tourism
`
`industry by driving up the transportation costs and energy prices.24
`
`Plaintiff States also allege that the SC-GHG Estimates impose additional duties on
`
`them when carrying out cooperative federalism programs because they are compelled to
`
`employ the IWG’s methodology as a condition of approving significant funding and State
`
`environmental implementation plans. For example, states must comply with federal
`
`standards in programs such as the National Ambient Air Quality Standards (“NAAQS”),
`
`42 U.S.C. § 7410. Under that statute, it is the states’ burden “to propose plans adequate for
`
`compliance with NAAQS.” E.P.A. v. EME Homer City Generation, L.P., 572 U.S. 489,
`
`498, 134 S. Ct. 1584 (2014). Plaintiff States assert that the EPA has instructed that NAAQS
`
`are now required to be set based on the IWG’s SC-GHG Estimates.25 Likewise, the states
`
`must use the SC-GHG Estimates or risk having their state implementation plans
`
`disapproved. Yet, even if a state implementation plan is disapproved by the EPA, the EPA
`
`22 See U.S. Energy Info. Admin., “Louisiana: State Profile and Energy Estimates” (updated Apr. 15, 2021). (St. John
`Dec. Ex. 30).
`23 Kentucky is one of the top coal-producing states. See U.S. Energy Information Administration, “Coal FAQ” (St.
`John Decl. Ex. 32).
`24 See U.S. Energy Info. Admin., “Florida: State Profile and Energy Estimates” (updated Nov. 19, 2020) (St. John
`Decl. Ex. 33).
`25 See Doc. 1 at 45–46, ¶124.
`
`App. A-14
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`

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`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 15 of 44 PageID #: 4157
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`will impose a federal implementation plan upon the state—which also must be based upon
`
`the SC-GHG Estimates. 26
`
`Defendants challenge Plaintiff States assertion of the use of the SC-GHG Estimates
`
`by the NAAQS, and argue that there are no NAAQS for greenhouse gases, see Utility Air
`
`REgul. Grp. v. EPA, 573 U.S. 302, 308 (2014) (listing the “six pollutants” for which “EPA
`
`has issued NAAQS”). Plaintiff States offer no explanation of how the SC-GHG Estimates
`
`would be used in setting or revising NAAQS for non-greenhouse-gas pollutants.
`
`The SC-GHG Estimates will directly harm Georgia’s industrial sector by increasing
`
`stationary source regulatory stringency.27 The SC-GHG Estimates will directly harm
`
`Mississippi’s energy infrastructure including its petroleum refinery, natural gas processing
`
`plant and LNG terminal.28 The SC-GHG Estimates will directly harm South Dakota’s
`
`industrial and agricultural capacities.29 The SC-GHG Estimates will directly harm Texas,
`
`the nation’s leading energy producer.30 The SC-GHG Estimates will be fatal to West
`
`Virginia’s economy, the fifth-largest energy producer in the nation—specifically its coal
`
`industry as realized by the Obama administration’s CPP.31 The SC-GHG will directly harm
`
`26 Doc. 1 at 45–46, ¶¶123–125.
`27 See U.S. Energy Info. Admin., Georgia: State Profile and Energy Estimates” (updated Nov. 19, 2020) (St. John
`Dec. Ex. 34).
`28 See U.S. Energy Info. Admin., “Mississippi: State Profile and Energy Estimates” (updated July 16, 2020) (St.
`John Decl. Ex. 35).
`29 See U.S. Energy Info. Admin., South Dakota: State Profile and Energy Estimates” (updated Apr. 16, 2020) (St.
`John Dec. Ex. 36).
`30 See U.S. Energy Info. Admin., “Texas: State Profile and Energy Estimates” (updated Apr. 15, 2021) (St. John
`Decl. Ex. 37).
`31 See U.S. Energy Info. Admin., “West Virginia: State Profile and Energy Estimates” (updated Oct. 15, 2020) (St.
`John Decl. Ex. 38).
`
`App. A-15
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`

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`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 16 of 44 PageID #: 4158
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`Wyoming, the largest net energy supplier in the nation and a major producer of coal, natural
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`gas, and oil.32
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`The Plaintiff States argue that the harms to these States are imminent and directly
`
`traceable to EO 13990 and the SC-GHG Estimates. The Plaintiff States remark that the
`
`chain of causation is clear and confirmed by history: agencies will apply EO 13990’s
`
`unambiguous command to apply the IWG’s unlawful SC-GHG Estimates in a manner that
`
`will harm Plaintiff States’ legally cognizable interests.
`
`Defendants maintain that Plaintiff States have failed to affirmatively show an
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`Article III injury to establish standing. Plaintiff States insist that the Executive Branch is
`
`employing the SC-GHG Estimates in a range of rulemaking across statutory regimes.
`
`Plaintiff States provide the following examples of final rules using the SC-GHG to increase
`
`costs in various industries:
`
`• EPA, Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas
`Emissions Standards, 86 Fed. Reg. 74434 (Dec. 30, 2021).33 Defendants remark
`that EPA explained that it “is not required to conduct formal costs benefit
`analysis to determine the appropriate standard under Section 202” of the Clean
`Air Act, and that “analysis of monetized GHG was not material to its decision.
`In summation, “the decisions reached and standards put in place do not depend
`on the 2021 SC-GHG interim estimates.” EPA, Revised 2023 and Later Model
`Year Light-Duty Vehicle GHG Emissions Standards: Response to Comments
`(Dec. 2021), https://perma.cc/RX8S-FFPJ.
`
`• DOE, General Service Lamps, 86 Fed. Reg. 70755 (Dec. 13, 2021).34
`
`32 See U.S. Energy Info. Admin., “Wyoming: State Profile and Energy Estimates” (updated Mar. 18, 2021) (St. John
`Decl. Ex. 39).
`33 Plaintiff’s exhibit 1, Daigle Decl. (This rule will impose unprecedented costs on the American auto industry;
`specifically, the EPA’s estimate of benefits “include[d] climate-related economic benefits from reducing emissions
`of GHG’s that contribute to climate change” based on the SC-GHG Estimates). Id. at 74443.
`34 Plaintiffs’ exhibit 2, Daigle Decl. at 70768. (This proposed rule employs the SC-GHG Estimates in calculating
`benefits).
`
`App. A-16
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`

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`Case 2:21-cv-01074-JDC-KK Document 98 Filed 02/11/22 Page 17 of 44 PageID #: 4159
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`• EPA, Oil and Gas New Modified Sources, 86 Fed. Reg. 63110 (Nov. 15, 2021).35
`
`• Bureau of Land Management (BLM), Fact Sheet: analyzing the effects of fossil
`fuel leasing and development on greenhouse gases (Oct. 29, 2021).36
`
`• DOE, Manufactured Housing, 86 Fed. Reg. 59042 (October 26, 2021).37
`
`• Federal Acquisition Regulatory Council (FAR), Minimizing Climate Change in
`Federal Acquisitions, 86 Fed. Reg. 57404 (October 15, 2021).38
`
`• Council on Environmental Quality (CEQ), NEPA Implementing Regulations
`Revisions, 86 Fed. Reg. 55757 (Oct. 7, 2021).39
`
` EPA, Phasedown of Hydrofluorocarbons, 86 Fed. Reg. 55116 (Oct. 5, 2021).40
`Defendants contend that EPA did not rely on the SC-GHG Estimates, and the
`proposed rule explained that it would implement an explicit congressional
`command in the American Innovation and Manufacturing Act of 2020, Pub. L.
`No. 116–260, 134 Stat. 1182 (codified at 42 U.S.C. § 7675), which “directs EPA
`to address HFCs by providing new authorities” to “phase down the production
`and consumption of listed HFCs” on a “schedule prescribed by Congress.” 86
`Fed.Reg. at 27,153, 27,159.
`
`The Court is co