Today a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit dismissed a red-state challenge to the Biden Administration's interim Social Cost of Carbon estimates due to a lack of Article III standing. This is not a surprise. While a district court had initially enjoined the Biden Administration's use of these estimates (in a tortured legal opinion), this decision was stayed by a different Fifth Circuit panel last year (and the Supreme Court refused to intervene after Louisiana failed to get a single vote for en banc review). A similar challenge was also rejected on standing grounds by the U.S. Court of Appeals for the Eighth Circuit.
Judge Wiener wrote for the unanimous panel, joined by Judges Higginson and Wilson. Judge Wiener's relatively brief opinion begins:
On January 20, 2021, the Biden Administration issued an executive order that re-established an interagency working group ("Working Group") to formulate guidance on the "social cost of greenhouse gases." That order directed the Working Group to publish dollar estimates quantifying changes in carbon, methane, and nitrous oxide emissions (collectively, "greenhouse gases") for consideration by federal agencies when policymaking. The Working Group has since published "Interim Estimates" based largely on the findings of its predecessor working group.
The Plaintiffs-Appellees States ("Plaintiffs") challenge E.O. 13990 and the Interim Estimates as procedurally invalid, arbitrary and capricious, inconsistent with various agency-specific statutes, and ultra vires. They obtained a preliminary injunction in the district court. Defendants-Appellants ("Defendants") appealed, and a panel of this court stayed the injunction.
We now dismiss this action because Plaintiffs have failed to meet their burden to prove standing. Plaintiffs' allegations of "injury in fact" rely on a chain of hypotheticals: federal agencies may (or may not) premise their actions on the Interim Estimates in a manner that may (or may not) burden the States. Such injuries do not flow from the Interim Estimates but instead from potential future regulations, i.e., final rules that are subject to their own legislated avenues of scrutiny, dialogue, and judicial review on an appropriately developed record.
