14 Republican AGs say Biden can’t use Executive Order to restore social costs of greenhouse gas

March 8, 2021 – A coalition of 14 Republican attorneys general led by Missouri on Monday accused President Joe Biden in federal court of exceeding his powers in an executive order that restored Obama-era levels of the costs of climate change when making policy.

Attorney general Eric Schmitt and his peers from states including Montana and Kansas accused Biden of violating the U.S. Constitution’s separation of powers with Executive Order 13990, which re-ups the so-called “social cost of greenhouse gases” that must be used when conducting cost-benefit analyses tied to regulatory actions like government permitting and investment. Former President Donald Trump had slashed that figure, and Biden’s administration restored it to about $50 per ton of greenhouse gases in February.

“This massive expansion of federal regulatory power has the potential to impact nearly every household in this state,” Schmitt said in a statement.

The Department of Justice did not immediately respond to a request for comment.

The values were issued by the Interagency Working Group (IWG) on Social Cost of Greenhouse Gases in response to the Jan. 20 executive order in which Biden said that agencies, when conducting cost-benefit analyses tied to regulatory actions must calculate “an accurate social cost” of carbon.

Dan Farber of the University of California Berkeley School of Law said the suit appeared tenuous.

“The lawsuit isn’t ripe given that no agency has tried to justify a rule on the basis of this interim figure. The claims of injury are also very vague and seem to fall short of the imminent concrete harm required for standing.”

Byron Brown, a senior counsel at Crowell & Moring who is not involved in the case said: “This is a bit of a game of ping pong where the attorneys general for states that are not currently of the party occupying the White House view this as an opportunity to raise concerns and try to raise the profile of those concerns.”

The attorneys general say the higher costs will discourage agricultural and certain energy activities that generate the targeted emissions.

The complaint says that setting the cost of greenhouse gas emissions is “quintessentially legislative policy.”

The complaint also claims violations of agency statutes that do not authorize the IWG to set values to be used in federal programs.

Additionally, the states claim violations of the Administrative Procedure Act because the IWG did not seek public input, and because it “relied heavily” on the analysis of a previous working group that calculated values under Obama in 2016, rather than conducting its “own independent analysis.”

The case is State of Missouri et al v. Biden et al, U.S. District Court for the Eastern District of Missouri, No. 4:21-cv-00287.

By Reuters
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