Fifth Circuit Dismisses States' Challenge to President Biden's Executive Order 13990 on the Social Cost of Greenhouse Gases

On April 5, 2023, the Fifth Circuit Court of Appeals, in Louisiana v. Biden, 64 F.4th 674 (5th Cir. 2023), dismissed a lawsuit brought by 10 state attorneys general against President Biden, challenging Executive Order 13990. 

As previously reported, President Biden issued Executive Order 13990, which reestablished the Obama-era "Interagency Working Group on the Social Cost of Greenhouse Gases" ("Working Group") and directed the Working Group to quantify the social costs of carbon, methane, and nitrous oxide emissions. The State of Missouri and 12 other states challenged this executive order in the United States District Court for the Eastern District of Missouri; however, their case was dismissed for lack of standing. 

Separately, in a suit filed in the United States District Court for the Western District of Louisiana, the State of Louisiana and nine other states ("Plaintiff States") also challenged Executive Order 13990 on the grounds that it violated the Administrative Procedure Act. The district court found the Plaintiff States had standing to challenge this executive order and issued a preliminary injunction enjoining federal agencies from using any social cost of greenhouse gas estimates. As previously reported, the Fifth Circuit stayed the preliminary injunction, finding that the federal government would likely prevail on its standing challenge. On April 5, 2023, the Fifth Circuit dismissed this action for lack of standing, finding that the Plaintiff States' allegations of "injury in fact" relied on a "highly attenuated chain of possibilities."

In its decision, the Fifth Circuit analyzed the Plaintiff States' allegations of "fiscal, procedural, and sovereignty-related harms [that] might arise from regulations molded by the Interim Estimates" under Executive Order 13990:

• Fiscal Injury: The Plaintiff States alleged the Interim Estimates would cause harm because regulations resulting from the Interim Estimates would burden the states. The court concluded, however, that the Plaintiff States' allegations failed to satisfy "injury in fact," because Executive Order 13990 "does not require any action from federal agencies." The court explained that the Plaintiff States' alleged injuries relied on the possibility that federal agencies may or may not issue regulations based on the Interim Estimates that may or may not burden the states, and these allegations of possible future injury did not suffice for standing purposes.
• Procedural Injury: The Plaintiff States alleged they suffered an injury because they could not comment on the Interim Estimates. The court held, however, that suffering a procedural injury without a concrete interest is insufficient to create standing.
• Sovereignty-related Injury: The Plaintiff States alleged the Interim Estimates "deprive[d] the states of freedom and discretion that they otherwise would have had." The court held, however, that this case did not warrant providing the states with a special standing analysis because neither Executive Order 13990 nor the Interim Estimates had a direct effect on the Plaintiff States' laws or policies. 

Though the court did not analyze the remaining standing factors, the court did observe that the Plaintiff States also failed to prove that the alleged injury was fairly traceable to either Executive Order 13990 or the Interim Estimates. 

In dismissing this case for lack of standing, the Fifth Circuit aligned itself with the Eighth Circuit, which reached the same conclusion in a near-identical suit last year in an appeal from the earlier suit filed by the State of Missouri.  

Additionally, though the Working Group was expected to issue its final values by January 2022, it has not yet done so. Once final values are issued and regulations relying thereon are promulgated, additional litigation is likely.

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