Eighth Circuit Sides with Fifth Circuit that States Lack Article III Standing to Challenge the Biden Administration’s Executive Order on Climate Change

In State of Missouri v. Biden, No. 21-3013 (8th Cir. Oct. 19, 2022), the Eighth Circuit rejected a challenge by thirteen states to the president’s executive order reinstating a governmental taskforce on climate change, abrogating several executive orders of the past administration, and directing that climate data be gathered for regulatory cost-benefit analysis. The decision thus sides with the Fifth Circuit’s unpublished order in Louisiana v. Biden, No. 22-30087 (5th Cir. Mar. 16, 2022).

“Upon taking office, President Joseph Biden issued Executive Order 13990 (‘E.O. 13990’”), entitled ‘Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,’ and invoking ‘the authority vested in me as President by the Constitution and the laws of the United States of America.’ 86 Fed. Reg. 7037 (Jan. 20, 2021). E.O. 13990 expressly revoked or suspended numerous Executive Orders issued by his predecessor, President Donald Trump. See id. at 7041-42. The revoked orders included Executive Order 13783 (‘E.O. 13783’), in which President Trump disbanded an Interagency Working Group on the Social Cost of Greenhouse Gases (‘IWG’) established by President Barack Obama. 82 Fed. Reg. 16093, 16095-96 (Mar. 28, 2017). E.O. 13990 re-established the IWG with members from multiple cabinet-level and executive branch agencies, directed the IWG to publish interim and then final estimates of the social costs of greenhouse gas emissions (hereafter, ‘interim SC-GHG estimates’), and required federal agencies to use these estimates when monetizing the costs and benefits of future agency actions and regulations.”

Missouri and twelve other states filed an action in federal district court challenging this order as a breach of the constitutional separation of powers and a violation of the Administrative Procedure Act (APA) and other federal statutes. “The district court concluded the States lack Article III standing and their claims are not ripe for adjudication, granted Defendants’ motion to dismiss for lack of subject matter jurisdiction, and denied Plaintiffs’ motion for a preliminary injunction as moot.”

The Eighth Circuit affirms dismissal on standing grounds. At the heart of the states’ standing argument was their challenge to the gathering and use of SC-GHG estimates for agency decision-making. They contended that these “are invalid because the IWG possesses ‘no delegation of any legislative authority’ by Congress.” According to the states, “the estimates’ emphasis on the ‘social benefits’ of increased restriction of greenhouse gas emissions will result in ‘costs to states as purchasers of more heavily regulated goods and services,’ and ‘loss of future tax revenues’ from more heavily regulated economic activity.”

The panel finds too many contingencies between the agency action and future injury to the states’ revenues: “. . .[T]he alleged economic injuries are ‘concrete’ only if we ‘assume that at some point in the future, one or more agencies will ‘inevitably’ issue one or more regulations that rely in some way upon the Interim Estimates; that such agency will ‘inevitably’ disregard any objections to the methodology by which the Interim SC-GHG estimates were calculated; and that this yet-to-be-identified regulation will then harm Plaintiffs in a concrete and particularized way.’”

The states also argued that the executive order would intrude on the states’ sovereign authority “as regulators in cooperative federalism programs such as those mandated by the National Environmental Policy Act (NEPA), Clean Air Act state implementation plans, and federal highway administration actions.” But “even if the States as sovereigns are entitled to some undefined ‘special solicitude’ in the standing analysis, they still must satisfy the basic requirements of Article III standing.” And here, “[n]either the interim SC-GHG estimates nor EO 13990 impose obligations on the States. Even when States are conducting cost-benefit analyses as part of their participation in cooperative federalism programs, they are not bound to use the interim SC-GHG estimates.”

The panel notes two other defects in the states’ standing argument. First, the dispute did not concern a “concrete dispute about a pending agency action affecting a specific . . . project.” Rather, it authorized agency use of climate impact as one of numerous factors in cost-benefit analyses. Second, the states’ alleged “procedural harm when the IWG published initial estimates without APA notice and comment procedures” fails to confer standing by itself. “[T]he alleged procedural harm is untethered to any specific harm. By challenging all uses of the interim SC-GHG estimates, rather than their use in a specific agency action, the States are asserting only ‘a procedural right in vacuo.’”

In sum, “[t]he Plaintiff States failed to plausibly allege the ‘irreducible constitutional minimu’” of Article III standing — concrete and particularized actual injury in fact that is fairly traceable to defendants’ challenged conduct, publication of the interim SC-GHG estimates.”