Petition for Writ of Certiorari — Missouri, et al., Petitioners v. Joseph R. Biden, Jr., President of the United States, et al.

Supreme Court briefJun 25, 2023

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No. ____

In the

Supreme Court of the United States

STATE OF MISSOURI, ET AL.,

Petitioners,

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Office of the Missouri

Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, MO 65102

Office of the Missouri

ANDREW BAILEY

Missouri Attorney General

JEFF P. JOHNSON

Deputy Solicitor General

Counsel of Record

(314) 340-7366

Jeff.Johnson@ago.mo.gov

Counsel for Petitioners

QUESTION PRESENTED

On January 21, 2021, President Biden issued

Executive Order 13990 that re-established the

Interagency Working Group on the Social Costs of

Greenhouse Gases and ordered them to issue interim

estimates on the social costs of greenhouse gases.

Executive Order 13990 breaks new ground and

generally requires every agency to use those interim

“social” costs “when monetizing the value of changes

in greenhouse gas emissions resulting from

regulations and other relevant agency actions until

final values are published.” The interim “social costs”

were published in February 2021 without any public

input and skipping notice-and-comment procedures.

Plaintiff States alleged many different harms and

injuries from the interim “social costs” dramatic

increase in the costs from emitting greenhouse gases,

including harms to proprietary, sovereign, and

procedural interests. The Eighth Circuit largely

found it too attenuated to infer that federal agencies

would propose regulations and follow the President’s

command to use the interim social costs, and

dismissed the case.

The question presented is:

1. Whether the Petitioning States’ alleged harms

to their proprietary and sovereign interests (as well as

a completed procedural injury) are sufficient to supply

Article III standing?

PARTIES TO THE PROCEEDING

Petitioners are the States of Missouri, Arkansas,

Indiana, Kansas, Montana, Nebraska, Ohio,

Oklahoma, South Carolina, Tennessee, and Utah.

The individual Respondents are Joseph R. Biden

Jr., Shalanda Young, Jared Bernstein, Arati

Prabhakar, Michael Regan, Jennifer Granholm,

Willie L. Phillips, om Vilsack, Peter Buttigieg, Debra

Haaland, and Tracy Stone-Manning, all in their

official capacities. Respondents also include the

Department of the Interior, the Bureau of Land

Management, the Environmental Protection Agency,

the Department of Energy, the Federal Regulatory

Commission, the Department of Transportation, the

Department of Agriculture, and the Interagency

Working Group on Social Costs of Carbon.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:



State of Missouri, et al. v. Joseph R. Biden,

et al., No. 21-3013 (8th Cir.) (order denying

petition for rehearing and rehearing en

banc, issued January 27, 2023), App. 50a;



State of Missouri, et al. v. Joseph R. Biden,

et al, No. 21-3013 (8th Cir. 2022) (opinion

affirming the order of the district court,

issued October 21, 2022);



State of Missouri, et al. v. Joseph R. Biden,

et al, No. 4:21-cv-287-AGF (E.D. Mo.) (order

granting motion to dismiss entered on

August, 31, 2021); and

iii



State of Missouri, et al. v. Joseph R. Biden,

et al, No. 22A900 (Apr. 14, 2023) (granting

application for extension to file petition for

writ of certiorari).

There are no other proceedings in state or federal

court or this Court directly related to this case within

the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

QUESTIONS PRESENTED..................................... i

PARTIES TO THE PROCEEDING ........................ ii

STATEMENT

PROCEEDINGS ...................................................... ii

TABLE OF CONTENTS .........................................iv

TABLE OF AUTHORITIES ....................................vi

PETITION FOR WRIT OF CERTIORARI ..............1

JURISDICTION .......................................................1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ...........1

STATEMENT OF THE CASE .................................4

A.Executive Order 13990 Creates an Interagency

Working Group to Dictate Binding Values for

the Social Costs of Greenhouse Gases .....................4

B.The Working Group Promulgates Binding Interim

Values for the “Social Costs” of Carbon

Dioxide, Methane, and Nitrous Oxide .....................6

C. ........................................................................... Procedural

History .................................................................... 11

REASONS

FOR

GRANTING

THE

PETITION .............................................................. 19

I. The Eighth Circuit misapplied this Court’s

precedent as Petitioning States have standing

to Challenge EO 13990 and the Interim

Values .............................................................. 19

A. The Eighth Circuit erred in failing to

apply Bennett v. Spear ................................19

B. Petitioning States completed procedural

injury is not a procedural right in vacuo under

Summers ...................................................................... 24

C. Under this Court's precedents, the alleged

injuries are not too attenuated ...................... 27

D. The Petitiong States theories of sovereign

standing also implicate this Court's

precedent ....................................................32

E. The district court's ripeness determination

conflicts with this Court's precedent .........36

III. Plaintiff States are likely to succeed on their

claims, and thus, any remand should require

the expedited consideration of the motion for a

preliminary injunction. ................................... 40

CONCLUSION ....................................................... 43

APPENDIX ............................................................. 1a

TABLE OF AUTHORITIES

Page(s)

Cases

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ......................................... 33

Bennett v. Spear,

520 U.S. 154 (1997) ....................................... 17, 22

Catholic Health Initiatives v. Sebelius,

617 F.3d 490 (D.C. Cir. 2010) ............................. 47

Center for Biological Diversity v. National Hwy.

Traffic Safety Admin.,

538 F.3d 1172 (9th Cir. 2008) ............................. 32

City of Kennett, Missouri v. EPA,

887 F.3d 424 (8th Cir. 2018) ......................... 25, 42

City of Los Angeles v. Barr,

929 F.3d 1163 (9th Cir. 2019) ............................. 30

Hoctor v. U.S. Dep’t of Agric.,

82 F.3d 165 (7th Cir. 1996) ................................. 47

Iowa League of Cities v. EPA,

711 F.3d 844 (8th Cir. 2013) ............. 27, 39, 40, 42

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ....................................... 18, 27

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................... 28, 37

Meyer v. Bush,

981 F.2d 1288 (D.C. Cir. 1993) ........................... 46

Nat’l Ass’n of Home Builders v. E.P.A.,

667 F.3d 6 (D.C. Cir. 2011) ................................. 28

Ohio Forestry Association, Inc. v. Sierra Club,

523 U.S. 726 (1998) ........................... 39, 41, 42, 43

Printz v. United States,

521 U.S. 898 (1997) ............................................. 37

Soucie v. David,

448 F.2d 1067 (D.C. Cir. 1971) ........................... 45

vii

Summers v. Earth Island Institute,

555 U.S. 488 (2009) ....................................... 22, 28

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................. 34

Texas v. Biden,

10 F.4th 538 (5th Cir. 2021) ............................... 38

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 19

Statutes

5 U.S.C. § 551(1) ..................................................... 45

5 U.S.C. § 553(b)(A) ................................................ 47

28 U.S.C. §§ 1331, 1346, and 2201(a) ...................... 1

42 U.S.C. § 7410(a)(1) & (a)(2)(H)(i) ...................... 36

Mo. Rev. Stat. § 643.055 ........................................ 36

U.S. CONST. art. I, § 1 ............................................. 36

Regulations

40 C.F.R. § 1501.7(b) .............................................. 36

86 Fed. Reg. 43759 (Aug. 10, 2021) ....................... 20

86 Fed. Reg. 43737 ................................................. 21

Other Authorities

Executive Order 13990... 2, 3, 4, 6, 10, 11, 13, 14, 16

cont. ............ 20, 21, 26, 30, 32, 35, 36, 37, 38, 43, 48

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The district court’s opinion granting

Respondents’ motion to dismiss and denying

Petitioners’ motion for a preliminary

injunction is reported at Missouri v. Biden,

558 F. Supp. 3d 754 (E.D. Mo. Aug. 31, 2021),

and reprinted at 1a of the Appendix.

The Eighth Circuit’s opinion affirming the

district court’s opinion is reported at Missouri

v. Biden, and reported at 52 4th 362 (8th Cir.

2022), and reprinted at 34a of the Appendix.

JURISDICTION

The district court had jurisdiction over the

case pursuant to 28 U.S.C. §§ 1331, 1346,

1361, and 2201(a). The court of appeals

issued its opinion on October 21, 2022, App.

34a, and denied the petition for rehearing and

rehearing en banc on January 27, 2023, App.

50a. The time to file a petition for certiorari

was extended to June 26, 2023. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

INVOLVED

Article I, § 1 of the United States

Constitution provides:

All legislative Powers herein

granted shall be vested in a

Congress of the United States,

which shall consist of a Senate

and House of Representatives.

.Article II, § 1 of the United States

Constitution provides:

The executive Power shall be

vested in a President of the

United States of America.

Article III, § 2 of the U.S. Constitution

provides:

The judicial Power shall extend

to all Cases, in Law and Equity,

arising under this Constitution,

the Laws of the United States,

and Treaties made, or which

shall be made, under their

Authority;—to

all

Cases

affecting Ambassadors, other

public Ministers and Consuls;—

to all Cases of admiralty and

maritime

Jurisdiction;—to

Controversies to which the

United States shall be a Party;—

to Controversies between two or

more States;—between a State

and Citizens of another State,—

between Citizens of different

States,—between Citizens of the

same State claiming Lands

under Grants of different States,

and between a State, or the

Citizens thereof, and foreign

States, Citizens or Subjects.

Executive Order 13990, Protecting Public

Health and the Environment and Restoring

Science to Tackle the Climate Crisis, 86 Fed.

Reg. 7037 (January 20, 2021), is reproduced

at App. 51a. The Interagency Working Group

on Social Cost of Greenhouse Gases, U.S.

Government, Technical Support Document:

Social Cost of Carbon, Methane, and Nitrous

Oxide, Interim Estimates Under Executive

Order 13990 (Feb. 26, 2021) is reproduced at

App. X.

STATEMENT OF THE CASE

A. Executive Order 13990 Creates an

Interagency Working Group to

Dictate Binding Values for the

Social Costs of Greenhouse Gases.

Carbon dioxide (CO2), methane (CH4), and

nitrous oxide (N2O) are common, naturally

occurring gases that are ubiquitous byproducts of agriculture, transportation,

energy production, industrial production, and

many other forms of human economic

activity. See EPA, Overview of Greenhouse

Gases, at https://www.epa.gov/ghgemissions/

overview-greenhouse-gases. These gases are

produced by virtually all agricultural,

industrial,

energy-producing,

and

transportation activities. Id. The authority

to regulate greenhouse gas emissions,

therefore, is the power to regulate entire

foundational sectors of the U.S. economy.

On January 20, 2021, his first day in office,

President Biden issued Executive Order

13990, “Protecting Public Health and the

Environment and Restoring Science To

Tackle the Climate Crisis.” App. 51a, 86 Fed.

Reg. 7037 (“EO 13990” or the “Executive

Order”). Section 5 of the Order, “Accounting

for the Benefits of Reducing Climate

Pollution,” instructed all federal agencies to

“capture the full costs of greenhouse gas

emissions as accurately as possible, including

by taking global damages into account.” App.

59a. The “social cost” of greenhouse gases

(SCC, SCN, and SCM; collectively “SCGG”)

are “estimates of the monetized damages

associated with incremental increases in

greenhouse gas emissions.” Id.

The Executive Order created an

“Interagency Working Group” co-chaired by

the “Chair of the Council of Economic

Advisors, Director of OMB, and Director of

the Office of Science and Technology Policy.”

Id.

The Working Group includes seven

cabinet secretaries and five other high-level

executive branch officials. Id. at 59a–60a.

Section 5(b)(ii)(A) of the Executive Order

directed the Working Group to publish

interim social costs for carbon dioxide,

methane, and nitrous oxide that federal

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.” Id. at 60a (emphasis added).

Section 5(b)(ii)(B) directed the Working

Group to “publish a final SCC, SCN, and SCM

by no later than January 2022,” and Section

5(b)(ii)(C)-(E) provided that the Working

Group shall provide recommendations

regarding the use, updating, and methodology

of those numbers. Id. at 60a–61a. The

Working Group was instructed to consider

such intangible factors as “climate risk,

environmental justice, and intergenerational

equity.” Id.

The Executive Order directed the Working

Group to “solicit public comment; engage with

the public and stakeholders; [and] seek the

advice of ethics experts.” App. 61a. It also

directed the Working Group to “ensure that

the SCC, SCN, and SCM reflect the interests

of future generations in avoiding threats

posed by climate change.” Id. The Executive

Order cited no statutory authority to create

the Working Group or to set binding values

for “social costs” that “shall” be used by

regulatory agencies exercising legislative

authority delegated from Congress.

B. The Working Group Promulgates

Binding Interim Values for the

“Social Costs” of Carbon Dioxide,

Methane, and Nitrous Oxide.

On February 26, 2021, the Working Group

promulgated its Interim Estimates for the

social costs of carbon, methane, and nitrous

oxide. App. 67a (“Interim Values” or “2021

TSD”). Although EO 13990 instructed the

Working Group to elicit input from the public

and stakeholders, the Working Group did not

do so before publishing the Interim Values.

See id. The Interim Values were simply

published without any prior notice or

opportunity for public comment. Id.

The Working Group defined the “social

cost of greenhouse gases” or “SCGG” as “the

monetary value of the net harm to society

associated with adding a small amount of that

GHG to the atmosphere in a given year.” App.

69a. The Working Group acknowledged that

the task of assigning “social costs” to

greenhouse gases involves attempting to

predict global “changes in net agricultural

productivity, human health effects, property

damage from increased flood risk natural

disasters, disruption of energy systems, risk

of conflict, environmental migration, and the

value of ecosystem services.”

Id.

This

includes “spillover pathways such as

economic and political destabilization and

global migration.” Id. at 71a. In other words,

this task involves attempting to predict such

unknowable contingencies as the likelihood,

frequency, scope, and severity of future

international conflicts and human migrations

for three centuries into the future. Id. The

Working Group also admitted that its

calculations involve attempting to predict

future developments in human technology

and innovation for centuries to come, future

mitigation strategies performed by the

world’s 195 nations, and global atmospheric

concentrations due to greenhouse gas

emissions. See, e.g., Id.

The Working Group conceded that

“[b]enefit-cost analysis of U.S. Federal

regulations have traditionally focused on the

benefits and costs that accrue to individuals

that reside within the country’s national

boundaries.” App. 92a. But the Interim

Values reflect a policy and value judgment to

consider in their calculation the anticipated

global effects of greenhouse gases, not just

their anticipated effects within the United

States. App. 90a, 92a–97a.

Under the Working Group’s approach, one

critical factor in calculating the present dollar

value for the “social cost” of a greenhouse gas

is the “discount rate.” Id. at 97a–99a. “In

calculating the SC-GHG, the stream of future

damages to agriculture, human health, and

other market and non-market sectors from an

additional unit of emissions are estimated in

terms

reduced

consumption

(or

consumption equivalents). Then that stream

of future damages is discounted to its present

value in the year when the additional unit of

emissions was released.” Id. at 97a. The

lower the discount rate, the higher the “social

cost” of that gas.

The Working Group acknowledged that

“the discount rate has a large influence on the

present value of future damages.” Id. For

example, the Working Group calculated the

social cost of each gas at four different values

using three different discount rates—5%, 3%,

and 2.5%, and a 95% probability distribution

for the 3% rate.

Using these different

discount rates, the “social cost” of carbon

dioxide ranges from $14 per metric ton to

$152 per metric ton, depending on the

discount rate selected. App. 114a. The

Working Group admits that “the range of

discount rates reflects both uncertainty and,

at least in part, different policy or value

judgments.” Id. at 120a (emphasis added).

These include “intergenerational ethical

considerations,” which must “be accounted for

in selecting future discount rates.” App. 72a

According to the Working Group, “the choice

of a discount rate … raises highly contested

and exceedingly difficult questions of science,

economics, ethics, and law.”

(emphasis added).

App. 97a–98a

The Interim Values calculate that the

current “social costs” of carbon, methane, and

nitrous oxide, at current rates of emission, are

very significant. Among the range of values

provided, the Interim Values provide the 3%

discount rate as the baseline for agency

calculations, but they also invite federal

agencies to use smaller discount rates that

will increase the calculation of the social cost

of gases, including the 2.5% discount rate.

App. 98a. Under the Interim Values, the

current “social cost” of carbon dioxide in 2020

is $51 per metric ton at the 3% discount rate,

$76 per metric ton at the 2.5% discount rate,

and $152 per metric ton at the upper

probability distribution of the 3% rate. App.

114a. The “social cost of methane” at the 3%

rate in 2020 is $1,500 per metric ton, $2,000

per metric ton at 2.5%, and $3,900 at the

upper distribution of the 3% rate. App, 115a

The “social cost of nitrous oxide” at the 3%

discount rate in 2020 is $18,000 per metric

ton, $27,000 per metric ton at 2.5%, and

$48,000 per metric ton at the upper

probability distribution of 3%. App. 116a. All

of these values increase significantly over

time. App. 114a–116a. The Working Group

emphasizes that, on its view, these values

“likely underestimate” the actual social costs

of those three gases: “It is the IWG’s judgment

that … the range of four interim SCGG

estimates presented in this TSD likely

underestimate societal damages from GHG

emissions.” App, 74a (emphasis added).

Using the 3%, 2.5%, and 95-percentile-of3% discount rates, the “social cost” of carbon

in 2020 was $51, $76, and $152 per metric ton,

respectively; the “social cost” of methane was

$1500, $2000, and $3900 per metric ton,

respectively; and the “social cost” of nitrous

oxide was $18,000, $27,000, and $48,000 per

metric ton, respectively. App. 114a–116a. In

2019, the United States emitted 5.274 billion

metric tons of carbon dioxide, 26.4 million

metric tons of methane, and 1.54 million

metric tons of nitrous oxide. EPA, Draft

Inventory of U.S. Greenhouse Gas Emissions

and Sinks: 1990-2019 2-6 tbl.2-2 (Feb. 12,

2021).

Thus, assuming similar rates of

emission between 2019 and 2020, according to

the Working Group, the total “social cost” of

emissions of all three gases in 2020 at the 3%

discount rate was over $336 billion; the total

“social cost” at the 2.5% discount rate was

over $495 billion; and the total “social cost” at

the 95th-percentile distribution was over

$978 billion. Id.

These enormous “social costs” will lead to

comparable increases in regulatory burdens.

Even before EO 13990 made the use of SCGG

analysis mandatory, there had been “at least

eighty-three separate regulatory or planning

proceedings conducted by six different federal

agencies [that] ha[d] used the SCC or SCM in

their analyses” through mid-2016. Howard &

Schwartz, Think Global: International

Reciprocity as Justification for a Global

Social Cost of Carbon, 42:S Colum. J. of Envt’l

Law 203, 219–20 & appx. A (2017); see also D.

Ct. Doc. 6-3. Through mid-2016, the “social

cost” of carbon dioxide and methane had been

used in federal agency actions related to

vending machines, light trucks, dishwashers,

dehumidifiers, microwave ovens, kitchen

stoves, clothes washers, small electric motors,

residential water heaters, ozone standards,

residential refrigerators and freezers, sewage

guidelines, medium and heavy-duty vehicles,

mercury emissions, industrial boilers, solid

waste incineration units, fluorescent lamps,

residential clothes dryers, room air

conditioners, residential furnaces, residential

central air conditioners, battery chargers,

dishwashers, petroleum refineries, halide

lamps, walk-in coolers and freezers,

commercial refrigeration units, commercial

clothes washers, commercial ice makers, and

heat pumps. Id.

C. Procedural History.

On March 8, 2021, Plaintiffs-Appellants

the States of Missouri, Arizona,1 Arkansas,

Indiana, Kansas, Montana, Nebraska, Ohio,

Oklahoma, South Carolina, Tennessee, and

Utah (“Plaintiffs” or “the States”) filed suit in

the Eastern District of Missouri, challenging

EO 13990 and the Working Group’s Interim

Arizona has determined not to appeal the

Eighth Circuit’s ruling or join this petition for

certiorari.

Values. App. 1a. The lawsuit named as

defendants both the members of the Working

Group and federal agencies that “shall” use

the Interim Values, including EPA, DOE,

FERC, DOT, USDA, DOI, and BLM. State of

Missouri, et al. v. Joseph R. Biden, et al, No.

4:21-cv-287-AGF, at Doc. 6 (E.D. Mo. 2021)

(D. Ct. Doc.). Plaintiffs filed their First

Amended Complaint (adding Alaska as a

Plaintiff) on March 26. Id. (“Complaint”).

The Complaint included nine pages and

forty-two paragraphs of allegations regarding

injury to the States, based on eight separate

theories. Id. at 29–38. These included: (1)

violation of the principles of federalism that

are specifically designed to preserve the

independent role of the States, id. at 29; (2)

injury to the States’ sovereign interests from

the preemption of state laws and regulations

in traditional areas of state authority, id. at

29–31; (3) direct injury to the States’

sovereignty by dictating how they must

administer cooperative-federalism programs,

id. at 31–34; (4) injury to the States’

proprietary interests as purchasers of goods

and services whose costs will increase from

the Interim Values, id. at 34–35; (5) injury to

the States’ quasi-sovereign interests from the

“enormous regulatory costs on the economies

and citizens of the States” to be imposed by

the Interim Values, id. at 36–37; (6) injury to

the States’ sovereign and proprietary

interests in future tax revenues, id. at 37; and

(8) denial of the opportunity to participate in

notice-and-comment when the Working

Group formulated the Interim Values, id. at

37–38.

Plaintiffs alleged that EO 13990 and the

Working Group’s actions were unlawful on

four grounds. First, the Complaint alleged

that the President and the Working Group

violated the separation of powers by

exercising quintessential legislative authority

without any delegation from Congress. D. Ct.

Doc. 6, at 38 Second, the Complaint alleged

that the President and the Working Group

violated agency statutes that delegated

authority to the various agencies, not to the

President or the Working Group, to adopt

substantive rules in their areas of authority.

Id. at 38–39. Third, the Complaint alleged

that the Working Group violated the

Administrative Procedure Act (APA) by

issuing the Interim Values without notice and

comment.

Id. at 39–40.

Fourth, the

Complaint alleged that the Interim Values

were both contrary to law and substantively

arbitrary and capricious under the APA. Id.

at 40–41.

On May 3, Plaintiffs filed a motion for

preliminary injunction on Counts One and

Three of the Complaint. D. Ct. Doc. 18. The

Government filed a motion to dismiss on June

4, challenging Plaintiffs’ standing to sue and

ripeness. D. Ct. Doc. 28. In its briefs in the

district court, the Government conceded that

the Working Group possessed no delegation of

legislative authority: “No statute establishes

it, nor delegates it any legislative authority.”

Id. at 54.

In the district court, the Government also

conceded that, under the plain terms of EO

13990, the Working Group’s Interim Values

are binding on executive agencies, unless a

statute forbids their use. D. Ct. Doc. 28, at 36

(admitting that “the Executive Order requires

agencies to use the Interim Estimates in some

circumstances,” because § 6(b)(ii)(A) of EO

13990 “us[es] the word ‘shall’”).

The

Government conceded that “agencies will …

rely on the Interim Estimates when they have

discretion to do so.” Id. (italics in original); see

also D. Ct. Doc. 37, at 26 (admitting that “the

Executive Order is binding on agencies” in

many circumstances) (emphasis added). The

only exception to this rule that the

Government acknowledged was when a

statute forbids the agency to use the Interim

Values. See id. In other words, if a federal

agency may consider the social cost of

greenhouse gases in the exercise of its

statutory authority, it must do so under EO

13990, and furthermore, it must use the

specific “social cost” values promulgated by

the Working Group. Id. Further, if a statute

requires a federal agency to consider the

social cost of greenhouse gases, then that

agency may not do its own calculations, but it

must use the specific values promulgated by

the Working Group. Id.

On August 31, 2021, the district court

entered its Memorandum and Order granting

the Government’s motion to dismiss for lack

of standing and ripeness and denying the

States’ motion for a preliminary injunction.

App. 33a. On September 1, 2021, Plaintiffs

timely filed their notice of appeal. D. Ct. Doc.

50.

The Eighth Circuit affirmed, concluding

that the States’ requested injunctive relief,

requiring the current administration to follow

a previous administration’s regulatory

policies without a specific agency action to

review, was outside the authority of the

federal courts under Article III of the

Constitution. App. 37a (noting agreement

with Louisiana by & through Landry v.

Biden, No. 22-30087, 2022 WL 866282, at *3

(5th Cir. Mar. 16, 2022)). Specifically, the

panel viewed the Interagency Working Group

as an ordinary advisory group to the

President and agencies that “communicate[s]

to those agencies the policies the President

adopts for his administration.” App. 38a.

The court acknowledged that the subject

matter “raises complex, controversial issues

that trigger intense political, economic, and

environmental disagreement.”

Id.

summarily found that IWG is a “sensible

exercise of the President’s executive power”

“to communicate his policies to agencies in

exercising

their

delegated

legislative

authority.” Id. (emphasis in original). In

doing so, the panel rejected the States’

argument that the “IWG possesses ‘no

delegation of any legislative authority’ by

Congress.” Id.

In its standing analysis, the Eighth

Circuit focused on Article III’s injury-in-fact

requirement. First, it dismissed the alleged

economic injuries of increased proprietary

costs and decreased tax revenues as not

“concrete.” App. 41a–42a. Agreeing with the

district court, it noted that the injury was not

“certainly impending” because it required

believing that in the future an agency will

issue a regulation that relies “in some way

upon the Interim Estimates,” disregard any

objections to the methodology, and that the

regulation will harm Plaintiffs in a concrete

and particularized way. App. 42a. It agreed

with the Government’s view that the Interim

Values have a limited impact because they

only apply “if agencies propose future

regulations, if they conduct cost-benefit

analyses for those regulations, and if they

choose to monetize GHG emissions in those

analyses, then the agencies must use the

Interim SC-GHG estimates.”

App. 43a

(emphasis in original). The court found this

theory of causation too “attenuated” “to show

the requisite causation.” Id.

Second, the panel dismissed any harms to

the States’ sovereign interests because it

found that the Interim Values and EO 13990

do not impose obligations on the States. App.

44a. It reasoned that the causal relationship

between any injury and the challenged action

was too attenuated because it relied on the

decision of “an independent third party”—the

federal agencies.

Third, the panel rejected the States’

argument that Bennett v. Spear, 520 U.S. 154

(1997), permits parties to challenge a final

agency action that changes the legal regime

that is “virtually determinative” another

agency action. App. 45a. It concluded that

Bennett was distinguishable because the

Court addressed a concrete dispute over a

specific irrigation project and the Interim

Values are not “virtually determinative” of

agency actions. App. 45a–46a.

Finally, the Eighth Circuit dismissed the

procedural harm in failing to provide States

(or anyone else) a meaningful opportunity to

comment on the Interim Values before they

were promulgated. The panel explained that

the procedural harm did not have a concrete

interest because the Interim Values were not

challenged in connection with a specific

agency action.

App. 47a.

It also was

unwilling to be the first court to find that an

interagency working group was an agency

subject to the APA as it would “encourage

constant judicial interference with the

President’s exercise of his executive power.”

App. 47a.

In sum, the court of appeals concluded

that States had failed to plead a “concrete and

particularized actual injury in fact that is

fairly traceable to defendants’ challenged

conduct, publication of the interim SC-GHG

estimates.” App. 48a.

The panel declined to address whether

Petitioners had shown that any injury “will be

redressed by a favorable decision.”

Id.

(quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992)).

Petitioner States filed this timely petition

for writ of certiorari.

REASONS FOR GRANTING THE

PETITION

I. The Eighth Circuit misapplied this

Court’s precedent as Petitioning

States have standing to challenge

EO 13990 and the Interim Values.

The Eighth Circuit rejected the States’

well-pleaded injuries as relying on a “highly

attenuated” chain of causation and rejecting

Petitioners’ straightforward inferences that

are supported by the record and common

sense. The court of appeals errors show that

it misapplied this Court’s precedents in

Bennett, Summers v. Earth Island Institute,

555 U.S. 488 (2009), Department of Commerce

v. New York, 139 S. Ct. 2551 (2019), and Ohio

Forestry Association, Inc. v. Sierra Club, 523

U.S. 726 (1998).

A. The Eighth Circuit erred in

failing to apply Bennett v.

Spear.

The court of appeals overlooked a key

distinction between the IWG and past

working groups: the IWG’s binding values are

binding on the federal agencies. The binding

nature of the Interim Values is what alters

the legal landscape under Bennett because the

subordinate agencies are no longer able to

exercise their legislative duties de novo, they

must reconcile any difference with the IWG’s

mandate.

In Bennett v. Spear, 520 U.S. 154 (1997),

the Court addressed a provision of the

Endangered Species Act that required federal

agencies whose projects might adversely

impact an endangered species to seek a

“biological opinion” from the Fish and Wildlife

Service (FWS). Id. at 157–58. The FWS’s

“biological opinion” would assess the likely

impact of the project on endangered species

and make recommendations to the agency

requesting the opinion (the “action agency”)

on how to mitigate any such impacts. Id. at

158. In Bennett, the Bureau of Reclamation,

which sought a biological opinion from FWS

regarding the impact of water levels in the

Klamath Project, a series of dams and lakes

in Oregon and California. Id. at 158–59.

FWS issued a biological opinion to the Bureau

of Reclamation finding a risk of adverse

impact

endangered

fish

and

recommending to the Bureau to mitigate that

impact by maintaining certain (higher) water

levels in two reservoirs. Id. at 159.

In Bennett, ranchers who “claim[e]d a

competing interest in the water” sued the

FWS, challenging its biological opinion, but

did not sue the Bureau of Reclamation (the

“action agency”). Id. at 160. The Government

argued that the ranchers’ alleged injuries

lacked traceability and redressability under

Article III because FWS’s biological opinion

was not binding on the Bureau of

Reclamation, and the ranchers would not be

harmed by it unless and until the Bureau of

Reclamation took a final agency action based

on it. Id. at 168. In other words, the

Government contended that “the proximate

cause of [the ranchers’] harm is an (as yet

unidentified) decision by the Bureau

regarding the volume of water allocated to

petitioners, not the biological opinion itself.”

Id.

The Court unanimously rejected this

argument. Id. at 168–69. The Court noted

that, while the biological opinion was

technically “advisory” to the Bureau, “in

reality it has a powerful coercive effect” on the

second agency, because it “alters the legal

regime to which the action agency is subject.”

Id. If the “action agency” (the Bureau) wished

to disregard FWS’s recommendations in the

biological opinion, it was required to

articulate its reasons for disagree with FWS’s

conclusions. Id. Agencies seldom did so, and

so the biological opinion would “play a central

role in the action agency’s decisionmaking

process.” Id. Under these circumstances, the

Court held that the ranchers were not

required to wait until the Bureau of

Reclamation—the second agency, or “action

agency”—had issued a final agency action

based on the biological opinion. Id. “This

wrongly equates injury ‘fairly traceable’ to the

defendant to injury as to which the

defendant’s actions are the very last step in

the chain of causation.”

Id. at 168-69.

Because the FWS’s biological opinion

“alter[ed] the legal regime” under which the

Bureau would make its “as yet unidentified”

policy, the ranchers had Article III standing

to sue FWS to challenge the biological

opinion. Id. at 169–70.

Bennett should have controlled here, but

the court of appeals thought it was factually

and legally distinct. The panel determined

that Bennett could not apply because there

was a “concrete dispute about pending agency

action affecting a specific irrigation project,”

and that the Interim Values are not “virtually

determinative.” App. 45a–46a. But that makes

the same error the Court corrected in Bennett.

It essentially holds that Petitioners could not

sue to challenge an “as yet unidentified”

agency action using the Interim Values,

which means the court of appeals wrongly

held that Petitioners could only challenge “the

very last step in the chain of causation.”

Bennett, 520 U.S. at 169.

Here, the Interim Values plainly “alter[]

the legal regime” under which other agencies

conduct rulemakings and other agency

actions, because they dictate the outcome of a

specific, extremely important aspect of the

agency’s cost-benefit analysis—just like in

Bennett. Indeed, Petitioners here have a

stronger case for Article III standing, because

in Bennett, the second agency was

“technically free to disregard the Biological

Opinion.” Id. at 170. Here, by contrast, the

“action agencies” are not “free to disregard”

the Interim Values. Id. The Interim Values

are “binding” on them, D. Ct. Doc. 28, at 36,

and the President dictates that they “shall”

use them unless a federal statute specifically

prohibits it. App. 60a; see City of Kennett,

Missouri v. EPA, 887 F.3d 424, 431 (8th Cir.

2018) (holding that plaintiffs had standing to

challenge a policy that was “binding” on a

future agency action that had not yet been

implemented).

Similarly, the conclusion that the Interim

Values are not determinative, and therefore

insufficient for standing, is implausible and

legally incorrect.

Bennett repeatedly

acknowledged that the biological opinion did

not “mandate” any “particular regulation,”

id.—in fact, the agency could disregard it

entirely and make its own findings. But the

Supreme Court still held that the ranchers

did not need to await the “as yet unidentified”

action of the Bureau to challenge FWS’s

biological opinion. 520 U.S. at 168–69. So

even if one of a number of factors, there is still

standing to challenge the determination.

Moreover, the Interim Values are meant to

be determinative. Unless they are specifically

forbidden to do so by statute, agencies must

monetize the social cost of greenhouse gases

when formulating regulations, and in doing

so, they must use the Working Group’s values.

As a legal matter, the Interim Values bind the

agencies’ hands to a specific approach, and

specific set of numerical values, on what is

typically the most dominant or critical factor

in assessing the costs and benefits of agency

action. The “social costs” of greenhouse gases

are meant to be exorbitant-steadily

increasing and measuring the “net harm” of

emitting greenhouse gases hundreds of years

in the future. As seen in some rulemakings,

those “costs” justify billions in real world

regulations. Light Duty Truck Rule, 86 Fed.

Reg. at 43753 tbl. 4.

This Court’s precedent in

conclusively supports Petitioners.

Bennett

B. Petitioning States completed

procedural injury is not a

procedural right in vacuo

under Summers

EO 13990 also goes beyond previous

executive orders by dictating that the Interim

Values must be used in formulating

substantive policies and rules that directly

affect regulated parties. See App. 60a (EO

13990); D. Ct. Doc. 28-4, at 3 (OIRA

guidance). The Interim Values are to be used

“where an agency will take final action in

reliance on a benefit-cost analysis that

includes estimates of the social cost of

greenhouse gas emissions.” D. Ct. Doc. 28-4,

at 3. Thus, the Interim Values’ use purports

to be mandatory in formulating final agency

actions that bind the regulated public—not

just internal regulatory impact statements

submitted to OIRA.

The Complaint also alleges, and the

Government does not dispute, that “the

Working Group did not elicit or receive

comments or input from the public or

stakeholders before publishing the Interim

Values.” D. Ct. Doc. 6, at 18; see also id. at 24,

25–26. Petitioners alleged that the Working

Group “depriv[ed] them of opportunities to

provide input and comment prior to adoption

of the Interim Values.” Id. at 29, 37–38.

These injuries were concrete, immediate, and

completed on February 26, 2021, when the

Working Group published the Interim Values.

The deprivation of the right to participate

in notice-and-comment rulemaking is an

Article III injury, which is redressable by

vacating the agency action and requiring the

agency to proceed with notice-and-comment

rulemaking. Petitioners are not required to

prove that the outcome of the agency’s

proceeding would have been different if its

input had been considered. “The person who

has been accorded a procedural right to

protect his concrete interests can assert that

right without meeting all the normal

standards for redressability and immediacy.”

Lujan, 504 U.S. at 572 n.7. “If a petitioner ‘is

vested with a procedural right, that litigant

has standing if there is some possibility that

the requested relief will prompt the injurycausing party to reconsider the decision that

allegedly harmed the litigant.” Iowa League

of Cities, 711 F.3d at 871 (quoting

Massachusetts v. EPA, 549 U.S. 497, 518

(2007)). Thus, “redressability in this context

does not require petitioners to show that the

agency would alter its rules upon following

the proper procedures.” Id.; see also Nat’l

Ass’n of Home Builders v. E.P.A., 667 F.3d 6,

15 (D.C. Cir. 2011).

Here, there is undoubtedly “some

possibility” of a different outcome if the States

and other interested parties were allowed to

submit their comments.

Calculating a

supposed “social cost” of greenhouse gases

over a 300-year horizon is wildly speculative

and unscientific.

D. Ct. Doc. 19, at 5

(Dayaratna Decl.); D. Ct. Doc. 35-2, at 6

(comment to Working Group). Even if the

Working Group adhered to its same

conclusions in the face of such comments, the

chances are excellent that its conclusions

would not survive judicial review for

arbitrariness

and

lack

reasoned

decisionmaking.

In concluding otherwise, the district court

held that the States were merely asserting “a

procedural right in vacuo.” App. 22a (quoting

Summers v. Earth Island Institute, 555 U.S.

488, 496 (2009)).

The court of appeals misapplied Summers

by saying that Petitioners had challenged too

much, rather than nothing at all. App. 47a.

There, a judgment requiring notice-andcomment would have made no difference,

because there was nothing left to comment on.

Summers, 555 U.S. at 491. After the Burnt

Ridge dispute settled, the remainder of the

case merely challenged “the regulation in the

abstract,” based on “a procedural right in

vacuo.” Id. at 494, 496. Here, by contrast, if

the Court agrees that the Working Group was

required to provide notice-and-comment,

there will be a great deal for the States to

comment upon.

See D. Ct. Doc. 35-2

(Dayaratna Decl.).

Indeed, because the

President dictates that the Interim Values

are binding on federal agencies, the only

meaningful opportunity to comment on the

methodology will be before the Working

Group.

Comments that attack the

methodology or reliability of the Interim

Values will carry no weight before a future

agency that is bound in advance to accept

them.

Thus, the Executive Order

dramatically tilts the playing field against

those opposing the Interim Values in future

notice-and-comment proceedings. See, e.g.,

City of Los Angeles v. Barr, 929 F.3d 1163,

1173 (9th Cir. 2019) (“[T]his inability to

compete on an even playing field constitutes a

concrete and particularized injury.”).

But those agencies will be bound by the

Interim Values. The States can comment to

their hearts’ content, but at the end of the

day, under EO 13990, those agencies “shall

use” the Interim Values “when monetizing the

value of changes in greenhouse emissions

resulting from regulations and other relevant

agency actions….”

App. 60a (emphasis

added). The district court’s ruling effectively

permits the Government to evade any noticeand-comment review of the Interim Values.

C. Under

this

Court’s

precedents,

the

alleged

injuries

are

not

too

attenuated.

The Court’s precedents on causation show

that EO 13990 and the Interim Values cause

the alleged injuries.

Petitioners alleged a host of injuries that

relate to the fact that the Interim Values will

inevitably expand the federal regulatory

burdens on the States and their citizens in

virtually every major sector of American

economic life. See D. Ct. Doc. 6, at 35. Indeed,

the States explained that the increased

regulatory burdens caused by the “social

costs” would harm their proprietary interests

in energy consumption by homes, industries,

and farms, their energy production to

neighboring states, and the tax revenue that

arises from these economic activities used to

support the States’ activities. D. Ct. Doc. 18,

at 51–55. Petitioners have standing based on

these injuries as well.

The court of appeals agreed with

Respondents and the district court that it was

to speculative to infer that the federal

government would regulate and use the

Interim Values. App. 36a, 17a. The district

court dismissed this theory as “speculative,”

Add. 19a, and characterized it as “a highly

attenuated chain of possibilities,” App. 17a,

but the opposite is true. Each step follows

legally and logically—indeed, “inevitably,”

id.—just as Petitioners urged.

First, it is not “speculative” to assume that

“at some point in the future, one more

agencies will ‘inevitably’ issue one or more

regulations that rely in some way upon the

Interim Estimates.” App. 17a. Several such

rulemakings are already ongoing, in agencies

such as EPA, DOT, and FERC, and agencies

are already using SCGG analysis, based on

the Interim Values, in formulating rules. One

need not “speculate” that this may happen—

it is happening. And there will certainly be

many more such rulemakings. For one, some

courts have held that federal agencies under

certain statutes must consider the “social

cost” of greenhouse gases when conducting

cost-benefit analysis in rulemakings. See,

e.g., Center for Biological Diversity v.

National Hwy. Traffic Safety Admin., 538

F.3d 1172 (9th Cir. 2008). Such agencies,

when they do so, are now bound by EO 13990

to use the Working Group’s Interim Values.

D. Ct. Doc. 6-1, at 5. Even when agencies had

complete discretion to do so, federal agencies

used SCGG analysis in eighty-three such

rulemakings in the Obama Administration.

D. Ct. Doc. 6-3. Under EO 13990, any such

agency that has discretion under its statutory

delegation to consider such “social costs,”

must consider them—and it must use the

Working Group’s values.

Second, it is not “speculative” to assume

that “such agency will ‘inevitably’ disregard

any objections to the methodology by which

the Interim Estimates were calculated.” App.

17a. Each such agency has been ordered by

the President to do so, App. 60a, and the

Government agrees that this direction is

“binding” on those agencies, in the absence of

a contrary statutory command. D. Ct. Doc.

28, at 36. It is not “speculative” to anticipate

that federal agencies will obey a direct order

from the President of the United States that

the U.S. Department of Justice says is

“binding” on them.

Indeed, this inference is far less

speculative than those that have been held to

satisfy Article III.

In Department of

Commerce v. New York, for example, the

Supreme Court held that plaintiff States

demonstrated Article III standing to

challenge the inclusion of a question about

U.S. citizenship on the 2020 census

questionnaire, based on the States’ prediction

that the citizenship question would induce

some unspecified portion of respondents to

violate the law by declining to respond to the

census, and that this portion would be large

enough to affect their federal funding. 139 S.

Ct. 2551, 2565–66 (2019). The Government

argued that this chain of inferences was too

speculative to satisfy Article III, id. at 2566,

but the Supreme Court held that the plaintiffs

had “show[n] that third parties will likely

react in predictable ways to the citizenship

question, even if they do so unlawfully.” Id.

As in Dep’t of Commerce, “Respondents’

theory of standing does not rest on mere

speculation about the decisions of third

parties,” the Court held, but “it relies instead

on the predictable effect of Government action

on the decisions of third parties.” Id.

Third, it is not “speculative” to predict that

future “regulation[s] will then harm Plaintiffs

in a concrete and particularized way.” App.

17a. Justifying such increased regulatory

burdens is the whole point of the Interim

Values. It is not “speculative” to predict that

they will function exactly as designed, and

exactly as the President has instructed

federal agencies to use them. See Susan B.

Anthony List v. Driehaus, 573 U.S. 149 (2014)

(holding that an injury-in-fact is not

conjectural or hypothetical if there is “a

‘substantial risk’ that the harm will occur”).

There is a “substantial risk,” id., that federal

agencies will use the Interim Values to justify

greatly increased regulatory costs, because

they have been ordered to do so. The function

of “SCGG” analysis in justifying increased

regulatory burdens is amply illustrated by the

EPA actions regarding light-duty-vehicle

emissions discussed above. Petitioners “have

met their burden of showing that [federal

agencies] will likely react in predictable

ways,” to the President’s Executive Order—

again, far more “predictable ways” than

speculation about whether aliens will

unlawfully decline to respond to the census.

Dep’t of Commerce, 139 S. Ct. at 2566.

Petitioners should not be faulted for

alleging that Respondents would act in

accordance with EO 13990 and the Interim

Values.

D. The

Petitioning

States

theories

sovereign

standing also implicate this

Court’s precedent.

The court of appeals simply refused to

provide the special solicitude owed States.

The Complaint adequately alleged harms to

sovereign interests by describing how EO

13990 and the Interim Values affect how state

agencies must conduct their duties in

cooperative-federalism programs. D. Ct. Doc.

6, at 31–34, ¶¶ 162–178. As the Complaint

alleged, “in their sovereign capacities, the

Plaintiff States cooperatively administer

many federal programs directly affected by

the Working Group’s actions, and the

Executive Order and the Working Group’s

Interim Values will directly impact the

actions they must take in their participation

in these cooperative-federalism programs.”

Id. at 31, ¶ 162. “The President’s Executive

Order and the Working Group’s actions

effectively mandate that the Plaintiff States,

in their cooperative administration of federal

programs, must take actions that they deem

unconstitutional, unlawful, and arbitrary and

capricious, for the reasons stated herein.” Id.

Because the States participate, not just as

regulated parties, but as regulators in many

federal agency actions, they are directly

affected by the unlawful command of EO

13990 and the Interim Values.

The Complaint provides several examples

of such injuries. For example, citing 40 C.F.R.

§ 1501.7(b), the Complaint alleges that

“[u]nder the Executive Order, the agencies of

the Plaintiff States must now employ the

Working Group’s Interim Values in their

NEPA environmental impact statements or

face disapproval and rejection by the federal

agencies.” D. Ct. Doc. 6, at 33. The States

also serve as “joint lead” agencies on federally

funded transportation projects, and they

“regularly engage in federally funded

highway projects that require the States to

conduct NEPA assessments, which will now

have to include the Interim Values or face

rejection

the

Department

Transportation.” Id. Further, “Plaintiff State

of Missouri is a “no stricter than state’ for

most emissions standards promulgated by

EPA,” which “effectively requires Missouri …

to enforce through its State Implementation

Plans the clean-air standards adopted by

EPA, including those standards that

incorporate and rely on the Interim Values.”

Id. (citing Mo. Rev. Stat. § 643.055). “Thus,

Section 5 of EO 13990 and the Interim Values

purport to legally obligate” the Plaintiff

States,

their

“administration

cooperative-federalism

programs…,

enforce illegally and unconstitutionally

adopted standards.” Id.

The court of appeals rejected this theory

by noting that the text of EO 13990 explicitly

applies to federal agencies. But that misses

key context.

State administration of

cooperative-federalism programs is often

dependent on complying with federal

oversight. See 42 U.S.C. § 300g-2 (conditions

for state primacy in Safe Drinking Water Act).

By requiring federal agencies to use the

Interim Values, it inflicts immediate and

direct injury on state sovereignty, because it

directly deprives the States of freedom and

discretion that they otherwise would have

had in administering these programs without

the threat of coercion. Cf. Printz v. United

States, 521 U.S. 898, 916 (1997).

This

sovereign injury does not depend on the

impact of a future agency action, because it

immediately affects how States participate in

formulating agency actions. This injury-infact is complete, it is caused by Respondents’

unlawful actions, and it is directly

redressable. It alone suffices to give the

States standing.

Finally, the States’ standing draws further

support from the “special solicitude” afforded

the States in the standing analysis.

Massachusetts v. EPA, 549 U.S. 497, 520

(2007).

Given “the special position and

interest” of the States in our federal system,

“[i]t is of considerable relevance that the party

seeking review here is a sovereign State and

not … a private individual.” Id. at 518.

“Such

special

solicitude

has

two

requirements: (1) the State must have a

procedural right to challenge the action in

question, and (2) the challenged action must

affect one of the State’s quasi-sovereign

interests.” Texas v. Biden, 10 F.4th 538, 549

(5th Cir. 2021). Here, where the States are

“asserting a procedural right under the APA

to challenge an agency action,” id., the first

prong is satisfied. See D. Ct. Doc. 6, at 40

(Count III). And the States made numerous

plausible allegations that the use of “SGCC”

analysis will adversely impact their “quasisovereign interests in the health and wellbeing, both physical and economic, of their

citizens.” See id. at 36, ¶ 183. Accordingly,

the States are “indeed entitled to special

solicitude,” which “means redressability is

easier to establish for … state litigants than

for other litigants.” Texas, 10 F.4th at 549.

But the States’ prediction of injuries from

agency action simply claims that federal

agencies will obey Executive Order 13990 and

use the Working Group’s inflated estimates

for “social costs of greenhouse gases.” D. Ct.

Doc. 6-1, at 5.

Predicting that federal

agencies will obey an Executive Order is a far

less “attenuated chain of possibilities” than

that which the Supreme Court upheld in

Massachusetts v. EPA itself, which involved

Massachusetts’ prediction that a particular

EPA regulation of emissions in American

vehicles might change the global mix of

greenhouse-gas emissions enough to prevent

the loss of centimeters of coastline over 100

years. 549 U.S. at 522. Here, by contrast, the

States merely predict that federal agencies

will follow an Executive Order from the

President.

E. The district court’s ripeness

determination conflict with this

Court’s precedent.

Though the court of appeals failed to

address ripeness, the district court’s decision

runs afoul of Ohio Forestry Association, Inc.

v. Sierra Club, 523 U.S. 726 (1998).

First, the district court thought that the

case was not ripe, primarily because another

case could come along. But “[f]itness rests

primarily on whether a case would ‘benefit

from further factual development,’ and

therefore cases presenting purely legal

questions are more likely to be fit for judicial

review.” Iowa League of Cities, 711 F.3d at

867. Here, three of Plaintiffs’ four claims

present “purely legal questions.” Id. Whether

the President and the Working Group

violated the separation of powers by

exercising quintessentially legislative power

without a delegation from Congress is a

purely legal question. D. Ct. Doc. 6, at 38.

Whether the Working Group violated the APA

by failing to provide notice-and-comment is a

purely legal question. D. Ct. Doc. 6, at 40.

And whether the President’s directive

violates the organic statutes of federal

agencies by exercising power delegated to

those agencies is a purely legal question. D.

Ct. Doc. 6, at 39.

“As primarily legal

questions, such challenges tend to present

questions fit for judicial review.”

Iowa

League, 711 F.3d at 867.

In coming to the opposite conclusion, the

district court relied heavily on Ohio Forestry

Association, Inc. v. Sierra Club, 523 U.S. 726

(1998), but that case supports Petitioners.

Ohio Forestry Association involved a

challenge to the Forest Service’s logging plan

for a national forest that did “not itself

authorize the cutting of any trees.” 523 U.S.

at 729. Thus, there was “considerable legal

distance between the adoption of the Plan and

the moment when a tree is cut.” Id. at 730.

The Court concluded that it “would benefit

from further factual development of the

issues presented,” id. at 733, because the

validity and application of the Forest

Service’s Plan plainly hinged on the Forest

Service’s future refinement and application of

the Plan. Id. The Supreme Court emphasized

that the Forest Service might well “refine its

policies” before any application of them,

either “through revision of the Plan” or

“through application of the Plan in practice.”

Id. at 735. Here, there is no such prospect

that federal agencies will “refine” the Interim

Values in future proceedings, because the

Values are binding on the agencies.

Petitioners claims exclusively address the

validity of actions taken by the Working

Group, not the as-yet-incomplete actions

taken by agencies bound by the Working

Group’s determinations.

Because the

Working Group’s actions in promulgating the

Interim Values are complete, Plaintiffs’

claims “can never get riper.” Ohio Forestry

Ass’n, 523 U.S. at 737.

Second, the district court also held that

“[w]ithholding the Court’s consideration at

present will not cause Plaintiffs significant

hardship.” App. 27a. Withholding the Court’s

consideration will plainly inflict hardship on

the States by depriving them of any

meaningful opportunity to comment on the

Interim Values. The Working Group did not

let them do so, and future agencies, even as

they accept Plaintiffs’ comments, will

ultimately be bound by the Working Group’s

values. This is quintessential hardship, far

more than the “minimal” showing required.

Iowa League of Cities, 711 F.3d at 867; see also

Kennett, 887 F.3d at 433 (“delaying review of

certainly impending regulatory burdens can

cause harm”).

The district court opined that “Plaintiffs’

speculation that their objections will be

‘disregarded’ or ‘receive no meaningful

consideration is … not supported by well-pled

facts.” App. 28a-29a. But the district court

cited nothing to support this conclusion, and

it ignores the legally binding nature of the

Interim Values. It is not “speculation” to

anticipate that federal agencies will treat the

Interim Values as authoritative and binding

when the President has directed them to do so

and DOJ has affirmed that they are “binding.”

D. Ct. Doc. 28, at 36.

Again, Ohio Forestry Association strongly

supports Petitioners here.

Ohio Forestry Association emphasized

that “hardship” exists where the challenged

policy “create[s] adverse effects of a strictly

legal kind, that is, effects of a sort that

traditionally would have qualified as harm.”

523 U.S. at 733. Here, many such “adverse

effects of a strictly legal kind,” id., are

discussed above—including the fact that EO

13990 directly commandeers the States’

agencies to employ the Interim Values in

their

administration

cooperativefederalism programs, which the district court

wholly disregarded. This Court explained

that “hardship” would exist when the

challenged policy “command[s] anyone to do

anything or to refrain from doing anything,”

or “create[s] … legal rights or obligations.” Id.

The Interim Values do both—they “command”

federal agencies (and cooperating state

agencies) to use the Interim Values, and they

“create” the “legal … obligation[]” for such

agencies to do so. Id. Likewise, the States

have “pointed to [a] way in which the [Interim

Values] could now force [them] to modify

[their] behavior,” id. at 734, because they

purport to “force” state agencies to employ the

Interim Values in performing NEPA

assessments,

formulating

State

Implementation Plans, and conducting other

cooperative-federalism tasks.

In the end, the “hardship” prong goes to

the heart of the legal and constitutional

problems with the Interim Values. They

reflect a policy decision with enormous

practical consequences for every foundational

sector of the American economy.

The

Government has sought to shield this policy

decision from direct political and judicial

accountability by removing from the

individual federal agencies who actually have

delegated authority in these areas, issue it

without any notice-and-comment, and then

claim that it is fully insulated from judicial

review.

The district court’s decision

insulating them from judicial review at this

stage inflicts “hardship” of the very first

order.

III. Plaintiff States are likely to

succeed on their claims, and thus,

any remand should require the

expedited consideration of the

motion

for

preliminary

injunction.

Once Plaintiffs’ standing is established,

this is not a close case. The IWG plainly

violated the APA by issuing the Interim

Values without notice-and-comment. And the

President’s attempt to dictate binding

numerical values for all federal agencies on a

question of enormous policy importance

usurps legislative power never delegated to

the President, and thus violates the

separation of powers.

Although the district court did not reach

the motion for a preliminary injunction. App.

31a, the court of appeals stated that it would

not find that the IWG is an agency under 5

U.S.C. 551(1), App. 47a. Though this is “a

court of review, not of first view,” Cutter v.

Wilkinson, 544 U.S. 709, 719 n.7 (2005), it

would be proper to vacate that analysis and

remand with instructions to consider the

preliminary

injunction

expeditiously.

Otherwise, the district court may see it as

binding and deny the warranted relief.

The Working Group is an “agency.”

First, because it has the authority to make

binding determinations on a critical policy

question to other federal agencies, the

Working Group is an “agency” under the APA.

“Under the APA, an agency is any ‘authority

of the Government of the United States,

whether or not it is within or subject to review

by another agency.’” Soucie v. David, 448

F.2d 1067, 1073 (D.C. Cir. 1971) (quoting 5

U.S.C. § 551(1)). The APA “confers agency

status on any administrative unit with

substantial independent authority in the

exercise of specific functions.” Id. (emphasis

added). Evaluating other agencies and being

able to bind other agencies is critical to

determining if the agency has substantial

independent authority. Id.

In a case earlier relied on by Respondents,

Meyer v. Bush, 981 F.2d 1288, 1292 (D.C. Cir.

1993), the court of appeals held that an

agency exercises “substantial independent

authority” when it can “act directly and

independently beyond advising and assisting

the President.”

Id.

Critically, Meyer

reasoned, an agency like CEQ that had “the

power … to issue guidelines to [other] federal

agencies,” and “the authority to promulgate

regulations—legally

binding

the

agencies—implementing

the

procedural

provisions of the National Environmental

Policy Act,” was plainly an APA “agency.” Id.

(emphasis added). And that is exactly what

the Working Group possesses here.

The Interim Values are a “final

agency action.”

Likewise, because the

Interim Values are purportedly binding on

federal agencies, they also constitute a “final”

agency action. “As a general matter, two

conditions must be satisfied for agency action

to be ‘final’: First, the action must mark the

‘consummation’

the

agency's

decisionmaking process—it must not be of a

merely tentative or interlocutory nature. And

second, the action must be one by which

‘rights or obligations have been determined,’

or from which ‘legal consequences will flow.’”

Bennett, 520 U.S. at 177–78 (citations

omitted).

The Interim Values are not

“tentative or interlocutory”—they are the

official values that must apply to regulatory

actions until the “final” values of promulgated

in January 2022. And by requiring agencies

to exercise their discretion in a specific

manner on an important question of

legislative policy satisfies the second prong.

The Interim Values are not an

“interpretative rule.” Because they dictate

specific numerical values on a substantive

policy question, the Interim Values are not an

“interpretative rule” or “general statement of

policy” that would be exempt from notice-andcomment. 5 U.S.C. § 553(b)(A). “A rule that

turns on a number” is legislative, not

interpretative, unless the number follows

clearly and inevitably, by a simple exercise of

arithmetic, from the rule or statute. Hoctor v.

U.S. Dep’t of Agric., 82 F.3d 165, 170 (7th Cir.

1996). “[W]hen an agency wants to state a

principle ‘in numerical terms,’ terms that

cannot be derived from a particular record,

the agency is legislating and should act

through rulemaking.”

Catholic Health

Initiatives v. Sebelius, 617 F.3d 490, 495 (D.C.

Cir. 2010) (quoting Henry J. Friendly,

Watchman, What of the Night?, in

Benchmarks 144-45 (1967)) (emphasis

added). Here, calculating the Interim Values

was not a simple exercise in arithmetic, but

involved

“different

policy

value

judgments,” and “highly contested and

exceedingly difficult questions of science,

economics, ethics, and law.” App. 97a–98a.

Given the critical importance of these

issues and the fact that agency proceedings

involving the Interim Values are ongoing, the

Court should remand with instructions for

the district court to expeditiously issue a

ruling on the preliminary injunction.

CONCLUSION

The petition for writ of certiorari should be

granted because the Eighth Circuit

misapplied this Court’s precedents by

denying Petitioners standing to challenge the

not-so Interim Values is an issue of great

importance.

Respectfully submitted,

ANDREW BAILEY

Missouri Attorney General

JEFF P. JOHNSON

Deputy Solicitor General

Counsel of Record

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

Supreme Court Building

207 West High Street

Jefferson City, MO 65102

(314) 340-7366

Jeff.johnson@ago.mo.gov

Counsel for Petitioners

Additional Counsel listed on next page

ADDITIONAL COUNSEL

TREG R. TAYLOR

Attorney General of Alaska

Ronald W. Opsahl

Assistant Attorney General

Alaska Department of Law

1031 West Fourth Avenue, Suite 200

Anchorage, Alaska 99501

Ph: (907) 269-5100

F: (907) 276-3697

Email: ron.opsahl@alaska.gov

Counsel for the State of Alaska

TIM GRIFFIN

Attorney General of Arkansas

Nicholas J. Bronni

Solicitor General

Dylan L. Jacobs

Assistant Solicitor General

Office of Arkansas Attorney

General Tim Griffin

323 Center Street, Suite 200

Little Rock, Arkansas 72201

Ph: (501) 682-6302

Nicholas.bronni@arkansasag.gov

Counsel for the State of Arkansas

ADDITIONAL COUNSEL, cont.

THEODORE E. ROKITA

Attorney General of Indiana

Tom Fisher

Solicitor General

Office of Attorney General Todd Rokita

302 West Washington Street

IGCS-5th Floor

Indianapolis, IN 46204

Ph: (317) 232-0709

F: (317) 232-7979

tom.fisher@atg.in.gov

Counsel for the State of Indiana

KRIS KOBACH

Attorney General of Kansas

Office of Kansas Attorney General Kris

Kobach

120 SW 10th Avenue, 3rd Floor

Topeka, KS 66612-1597

Ph: (785) 368-8435 Phone

F: (785) 291-3767 Fax

Counsel for the State of Kansas

ADDITIONAL COUNSEL, cont.

AUSTIN KNUDSEN

Attorney General of Montana

Montana Attorney General’s Office

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

Ph: (406) 444-4145

Counsel for the State of Montana

MIKE HILGERS

Attorney General of Nebraska

Office of the Nebraska Attorney General

2115 State Capitol

Lincoln, NE 68509

Ph: (402) 471-2682

Counsel for the State of Nebraska

DAVE YOST

Attorney General of Ohio

Benjamin M. Flowers

Ohio Solicitor General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

Ph: (614) 466-8980

bflowers@ohioattorneygeneral.gov

Counsel for the State of Ohio

ADDITIONAL COUNSEL, cont.

GENTNER DRUMMOND

Attorney General of Oklahoma

Oklahoma Office of Attorney General

313 N.E. 21ST Street

Oklahoma City, OK 73105

Ph: (405) 522-4392

Counsel for the State of Oklahoma

ALAN WILSON

Attorney General of South Carolina

J. Emory Smith, Jr.

Deputy Solicitor General

Office of the Attorney General

PO Box 11549

Columbia South Carolina 29211

Ph.: (803)734-3680

F: (803) 734-3677

esmith@scag.gov

Counsel for the State of South Carolina

JONATHAN SKRMETTI

Attorney General of Tennessee

Office of the Tennessee Attorney General

P.O. Box 20207

Nashville, Tennessee 37202

Phone: (615) 532-2580

Counsel for the State of Tennessee

ADDITIONAL COUNSEL, cont.

SEAN D. REYES

Attorney General of Utah

Melissa A. Holyoak

Solicitor General

Utah Attorney General’s Office

350 N. State Street, Suite 230

P.O. Box 142320

Salt Lake City, UT 84114-2320

385.271.2484

melissaholyoak@agutah.gov

Counsel for the State of Utah

APPENDIX

TABLE OF CONTENTS

Memorandum and Order from the United

States District Court for the Eastern District of

Missouri, Eastern Division, State of Missouri,

et al. v. Joseph R. Biden, et al, No.4:21-cv00287-AGF, 558 F. Supp. 3d 754 (E.D. Mo. Aug.

31, 2021) ................................................................. 1a

Order of Dismissal from the United States

District Court for the Eastern District of

Missouri, Eastern Division, State of Missouri,

et al. v. Joseph R. Biden, et al, No.4:21-cv00287-AGF dated August 31, 2021 ...................... 33a

Opinion of U.S. Court of Appeals for the Eighth

Circuit, State of Missouri, et al. v. Joseph R. Biden, et

al., No. 21-3013 (8th Cir. Oct. 21, 2022) ............ 34a

Order denying Petition for Rehearing en banc

in 21-3013, State of Missouri, et al. v. Joseph R.

Biden, et al., (8th Cir. Jan. 27, 2023)................... 50a

Presidential Documents, Executive Order

13990 of January 20, 2021: Protecting Public

Health and the Environment and Restoring

Science to Tackle the Climate Crisis .................... 51a

Interagency Working Group on the Social Costs

of Greenhouse Gases, Technical Support

Document: Social Cost of Carbon, Methane, and

Nitrous Oxide Interim Estimates under

Executive Order 13990 (February 2021) ............. 67a

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF MISSOURI EASTERN DIVISION

STATE OF

MISSOURI, et al.,

Plaintiffs,

JOSPEH R.

BIDEN, JR., et al.,

)

) Case No. 4:21-cv-00287-AGF

)

MEMORANDUM AND ORDER

The State of Missouri and 12 other states1 brought this

suit against President Joseph R. Biden, Jr. and several other

executive branch departments and officials, challenging the

President’s Executive Order 13990 (“EO 13990”), which, in

relevant part, establishes an Interagency Working Group on

the Social Cost of Greenhouse Gases (the “Working Group”)

and directs the Working Group to publish interim—and, by

January of 2022, final—values for the “social costs” of

greenhouse gas emissions. The Executive Order further

provides that agencies “shall use [the Interim Estimates] when

monetizing the value of changes in greenhouse gas emissions

resulting from regulations and other relevant agency actions

until final values are published.” 86 Fed. Reg. 7037.

The matter is now before the Court on two motions: (1)

Plaintiffs’ motion (ECF No. 17) for a “preliminary injunction

prohibiting Defendants (excluding the President) from using

the social cost of greenhouse gases promulgated in the

February 26, 20211 Technical Support Document, [ECF No.

6-2], in any rule making or federal action where there is a

statutory command to consider costs or costs are permitted by

statute until this case is resolved on appeal”2 (ECF No. 17 at

1); and (2) Defendants’ motion (ECF No. 27) to dismiss the

complaint for lack of subject matter jurisdiction and for failure

to state a claim.

The Court heard oral argument on both motions on

August 25, 2021. Upon review of the entire record and for the

reasons set forth below, the Court concludes that Plaintiffs

lack standing and that their claims are not ripe for

adjudication. Therefore, the Court will grant Defendants’

motion to dismiss for lack of subject matter jurisdiction and

will dismiss Plaintiffs’ motion as moot.

BACKGROUND

On January 20, 2021, President Biden issued EO

13990, titled “Protecting Public Health and the Environment

and Restoring Science To Tackle the Climate Crisis.” 86 Fed.

Reg. 7037. Section 5 of this Order, titled “Accounting for the

Benefits of Reducing Climate Pollution,” provides in full:

These are the States of Alaska, Arizona, Arkansas, Indiana,

Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina,

Tennessee, and Utah.

In their supporting brief, Plaintiffs narrow their request, asking

only to “preliminarily enjoin all defendants, except for the President,

from using the social cost of greenhouse gases promulgated in the

February 26, 2021 Technical Support Document as binding values

in any agency action.” ECF No. 18 at 59.

(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 of 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

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) publish a final SCC, SCN, and SCM by

no later than January 2022;

President, by no later than September 1,

2021, regarding areas of decision-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 Valuing 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.

86 Fed. Reg. 7040-41.

Interim Estimates

On February 26, 2021, the Working Group issued a

document entitled “Technical Support Document: Social Cost

of Carbon, Methane, and Nitrous Oxide Interim Estimates

under Executive Order 13990” (“Interim Estimates”).

These Interim Estimates are purportedly identical to

prior estimates developed by another interagency working

group under President Barack Obama in 2016, except that they

have been adjusted for inflation. See ECF No. 6-2, Working

Group, Technical Support Document: Social Cost of Carbon,

Methane, and Nitrous Oxide: Interim Estimates under E.O.

13990

(Feb.

2021),

also

available

https://www.whitehouse.gov/wpcontent/uploads/2021/02/TechnicalSupportDocument_Social

CostofCarbonMethaneNitrousOxide.pdf.

Plaintiffs argue that the Interim Estimates are faulty for

a number of reasons, including that the underlying factual

inputs and modeling assumptions are arbitrary and lack a

reasonable basis.3 Plaintiffs rely on a sworn declaration of

Kevin D. Dayaratna, a statistician and data scientist at the

Heritage Foundation’s Center for Data Analysis, in support of

their assertions. Because EO 13990 provides that federal

agencies “shall” use the Interim Estimates “when monetizing

the value of changes in greenhouse gas emissions resulting

For example, Plaintiffs describe in detail why the “discount rate” applied

by the Working Group in developing the Interim Estimates was faulty. The

discount rate is a “percentage factor designed to calculate the net present

value of the future anticipated damages from a marginal increase in

emissions of a particular gas.” ECF No. 18 at 17. According to Plaintiffs,

the discount rates applied by the Working Group were too low, resulting in

exaggerated “social costs” of the corresponding greenhouse gases. See id.

from regulations and other relevant agency actions until final

values are published,” 86 Fed. Reg. 7040, Plaintiffs assert that

the Interim Estimates “will inevitably be used to justify

increased regulation and restrictions in innumerable areas,

affecting virtually every aspect of daily life.” ECF No. 18 at

19.

In support of this argument, Plaintiffs cite an academic

review in 2017, which identified “at least eighty-three separate

regulatory or planning proceedings conducted by six different

federal agencies [that] have used the SCC or SCM in their

analyses” through mid-2016. Am. Compl., ECF No. 6 at ¶¶

160-61. These included agency actions related to energy,

transportation, and agriculture, among other areas, and

regulations of everything from ozone standards to household

appliances. Id.

Complaint

Plaintiffs filed suit on March 8, 2021. In their amended

complaint, filed on March 26, 2021, they assert four causes of

action: (1) “Violation of the Separation of Powers,” (2)

“Violation of Agency Statutes,”4 (3) “Procedural Violation of

the Administrative Procedure Act (APA),” and (4)

“Substantive Violation of the APA.” Plaintiffs seek

declaratory and injunctive relief.

Post-Complaint Notice and Guidance from the Executive

Office

Specifically, Plaintiffs assert that “Section 5 of EO 13990 and the

Working Group’s Interim Estimates violate the statutes that confer

authority on various federal agencies to conduct cost-benefit analyses in

regulatory actions that involve emissions of carbon dioxide, methane,

and/or nitrous oxide.” ECF No. 6 at 204.

On May 7, 2021, the Office of Management and

Budget (“OMB”) published a notice in the Federal Register,

inviting public comments “on the [Interim Estimates] as well

as on how best to incorporate the latest peer-reviewed science

and economics literature in order to develop an updated set of

SC-GHG estimates.” OMB, Notice of Availability and Request

for Comment on ‘‘Technical Support Document: Social Cost

of Carbon, Methane, and Nitrous Oxide Interim Estimates

Under E.O. 13990”, 86 Fed. Reg. 24669, 24669 (May 7,

2021). Comments were due by June 21, 2021. Id.

On June 3, 2021, the Office of Information and

Regulatory Affairs (“OIRA”) issued a “Frequently Asked

Questions” document related to the Interim Estimates. See

ECF No. 28-4, OIRA, Social Cost of Greenhouse Gas

Emissions: Frequently Asked Questions (FAQs), (June 3,

2021),

also

available

https://www.whitehouse.gov/wpcontent/uploads/2021/06/Soc

ial-Cost-of-Greenhouse-Gas-Emissions.pdf. The document

states that agencies should follow EO 13990’s requirement to

use the Interim Estimates “as they follow other requirements

for preparing E.O. 12866 benefit-cost analysis.”5 Id. at 1. The

document further states that “[d]irectives issued in executive

orders and OIRA guidance are always made subject to

applicable law. . . . When an agency conducts benefit-cost

EO 12866, issued by President Bill Clinton, directs agencies to follow

certain principles, including assessing costs and benefits of available

regulatory alternatives and selecting approaches that maximize net

benefits, “unless a statute requires another regulatory approach.” Exec.

Order No. 12866, Regulatory Planning and Review, 58 Fed. Reg. 51735 §

1(a) (Sept. 30, 1993). It also establishes a regulatory-review process to be

coordinated by OMB and OIRA. Id.

analysis pursuant to specific statutory authorities, those

authorities must control the agency’s development and use of

the analysis in taking an agency action the issue.” Id. at 2.

Motion to Dismiss

Defendants move to dismiss Plaintiffs’ amended

complaint for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1) and, alternatively, for

failure to state a claim pursuant to Rule 12(b)(6). Defendants

assert that Plaintiffs lack standing to pursue their claims

because their allegations of injury all stem from hypothetical

future regulations that they speculate may be issued in reliance

on the Interim Estimates. Defendants further maintain that

Plaintiffs’ alleged injuries are not redressable by a favorable

decision in this lawsuit because, even without EO 13990 or the

Interim Estimates, agencies may consider the social costs of

greenhouse gases and may arrive at the same—or, from

Plaintiffs’ perspective, worse—regulations either in light of

those costs or in light of the myriad other factors considered

by agencies in the rulemaking process.6

Regarding Plaintiffs’ additional allegations of harm to

their sovereign interests or to their ability to participate in the

notice-and-comment rulemaking, Defendants contend that

these, too, are neither concrete nor particularized enough to

demonstrate Article III standing. For similar reasons,

Defendants argue that Plaintiffs’ claims are not ripe. Rather,

Defendants argue that a separate redressability problem arises because

Plaintiffs’ request for relief would necessarily require the Court to enjoin

the President’s exercise of his official duties, which the Court cannot do.

Thus, at a minimum, Defendants ask that the Court dismiss President Biden

as a Defendant.

10a

according to Defendants, “[i]f an agency one day relies on the

Interim Estimates to justify some action that actually causes

Plaintiffs a concrete injury, they can challenge that specific

agency action (including its use of the Interim Estimates) at

that time.” ECF No. 28 at 43.

In any event, Defendants argue that Plaintiffs’ claims

are meritless. As to Count One, Defendants maintain that there

is no basis to imply an equitable cause of action arising from

an alleged violation of separation of powers. If there were,

Defendants contend that the claim would fail here because EO

13990 is well within the President’s Article II authority and is

consistent with the longstanding presidential practice of

requiring cost-benefit analyses. Defendants note that that,

since the Ninth Circuit’s decision in Center for Biological

Diversity v. National Highway Traffic Safety Administration,

538 F.3d 1172 (9th Cir. 2008),7 federal agencies have

specifically employed estimates of the social cost of

greenhouse gases prepared by interagency working groups in

connection with related cost-benefit analyses.8

In Center for Biological Diversity, the Ninth Circuit held that an agency’s

failure to monetize the benefits of greenhouse gas emissions reduction as

part of its cost-benefit analysis before issuing a rule setting fuel economy

standards was arbitrary and capricious. 538 F.3d at 1200 (noting that

“while the record shows that there is a range of values, the value of carbon

emissions reduction is certainly not zero”).

In 2017, President Donald J. Trump issued EO 13783, which disbanded

the Working Group and withdrew its prior analyses as “no longer

representative of the administration’s policy.” Exec. Order 13783 § 5(b),

Promoting Energy Independence and Economic Growth, 82 Fed. Reg.

16093 (Mar. 28, 2017). However, President Trump further ordered that

11a

Regarding Count Two, Defendants contend that no

violation of agency statutes could occur because EO 13990

expressly defers to any conflicting federal statute.

As to Plaintiffs’ claims under the APA (Counts Three

and Four), Defendants maintain that Plaintiffs have not

identified a final agency action from which judicial review

may be sought; that neither the President nor the Working

Group is an agency subject to suit under the APA; and that

even if the Interim Estimates were subject to notice-andcomment requirements under the APA, Plaintiffs’ claim

would still fail under the APA’s harmless-error rule.

Motion for Preliminary Injunction

Plaintiffs oppose Defendants’ motion to dismiss and

affirmatively move to “preliminarily enjoin all defendants,

except for the President, from using the social cost of

greenhouse gases promulgated in the [Interim Estimates] as

binding values in any agency action.” ECF No. 18 at 59.

Plaintiffs assert that the Court “may decide to remand for the

Interim [Estimates] to proceed through notice-and-comment

or invalidate them as arbitrary and capricious.” ECF No. 35 at

“when monetizing the value of changes in greenhouse gas emissions

resulting from regulations, including with respect to the consideration of

domestic versus international impacts and the consideration of appropriate

discount rates, agencies shall ensure, to the extent permitted by law, that

any such estimates are consistent with the guidance contained in [the

Office of Management and Budget] Circular A-4.” Id. § 5(c). According to

Defendants, federal agencies under President Trump continued to estimate

the social cost of greenhouse gases in their cost-benefit analysis, albeit

applying different models to calculate those costs, such as a higher discount

rate.

12a

25. Plaintiffs also request a prompt ruling “[d]ue to the finality

of any rules being promulgated now and the impending

issuance of new social costs of greenhouse gases in January

2022.” ECF No. 17 at 1.

In response to Defendants’ assertions regarding

standing and ripeness, Plaintiffs argue that there is nothing

hypothetical about how agencies will use the Interim

Estimates. According to Plaintiffs, EO 13990 mandates that

federal agencies adopt the Interim Estimates in future

rulemaking, regardless of Plaintiffs’ objections thereto and

without any public input. Plaintiffs contend that their injuries

are not speculative because the Interim Estimates are designed

to and “will inevitably be used to justify increased regulatory

costs in foundational sectors of the American economy,

including energy, agriculture, and manufacturing.” ECF No.

35 at 9.

Plaintiffs maintain that if they wait to challenge the

Interim Estimates until future regulations based on those

numbers are issued—either in the notice-and-comment phase

or through judicial review—their objections “will be

disregarded” and “will receive no meaningful consideration.”

ECF No. 35 at 9, 11. Plaintiffs likewise maintain that their

claims are ripe because the Interim Estimates are a “a selfexecuting regulation” that will result in immediate injuries to

Plaintiffs in the form of “federal regulations using the Interim

Values that will encroach on Plaintiff States’ authority in areas

subject to traditional state regulation.” ECF No. 35 at 27.

Next, Plaintiffs argue that all four factors relevant to

the preliminary injunction analysis favor them. Plaintiffs

argue that they are likely to succeed on the merits of Count

13a

One (Violation of the Separation of Powers) and Count Three

(Procedural Violation of the APA) of their amended

complaint.9 Regarding Count One, Plaintiffs argue that

“dictating binding values for the social cost of greenhouse

gases for use in federal programs is a quintessentially

legislative power that lies exclusively with Congress.” ECF

No. 18 at 22. Thus, Plaintiffs contend that Section 5 of EO

13990 is not a valid exercise of executive power but an

exercise of legislative power that requires statutory authority.

Regarding Count Three, Plaintiffs argue that the

Working Group is an agency under the APA; that the binding

nature of the Interim Estimates render them a final agency

action and a substantive rule under the APA; and that the

Working Group violated the APA’s procedural requirements

when it promulgated the Interim Estimates without providing

notice to the public and an opportunity to comment.

Plaintiffs further assert that, absent a preliminary

injunction, they will suffer irreparable injury in the form of: (i)

deprivation of their ability to file comments objecting to the

Interim Estimates, (ii) deprivation of their ability to participate

meaningfully in future federal agency proceedings, because

the Interim Estimates will be essentially shielded from further

review; (iii) injury to their sovereign interests in administering

Although Plaintiffs’ motion for preliminary injunction does not address

the merits of Counts Two and Four, Plaintiffs discuss these counts in their

opposition to Defendants’ motion to dismiss. There, Plaintiffs assert that

Count Two plausibly alleges that the Working Group is acting ultra vires,

or without statutory authority, and that Count Four plausibly alleges that

the Working Group is an agency and the issuance of the Interim Estimates

a final agency action.

14a

“cooperative-federalism programs,”10 because EO 13990

effectively mandates Plaintiffs to employ the Interim

Estimates in administering such programs; (iv) injury to

Plaintiffs’ proprietary interests, because the cost of energy and

other regulatory goods that Plaintiffs consume will

“necessarily increase under the increased regulation mandated

by [EO 13990] and the Interim Estimates” (ECF No. 18 at 51);

and (v) the federalism-based injury inherent in any violation

of the separation of powers.

Finally, Plaintiffs assert that a preliminary injunction

that restores the status quo will impose no cognizable harm on

Defendants and will serve the public interest by promoting

democratic accountability.

In response, Defendants argue that the Court cannot

reach Plaintiffs’ motion because the Court lacks subject matter

jurisdiction. In any event, Defendants maintain that Plaintiffs

would not be entitled to a preliminary injunction because their

claims are meritless, they cannot show any imminent or

irreparable harm, and an injunction would not serve the public

interest.11

DISCUSSION

Standing

As one example of a cooperative-federalism program, Plaintiffs cite the

permitting of new stationary sources under the Clean Air Act.

In addition to the parties’ briefs, the Court has received amicus curiae

briefs in support of Plaintiffs’ motion for preliminary injunction on behalf

of the Texas Public Policy Foundation (ECF No. 26) and the Committee

for a Constructive Tomorrow (ECF No. 33).

15a

“The law of Article III standing, which is built on

separation-of-powers principles, serves to prevent the judicial

process from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408

(2013). “To establish Article III standing, plaintiffs must show

(1) an injury in fact, (2) a causal relationship between the

injury and the challenged conduct, and (3) that a favorable

decision will likely redress the injury.” Animal Legal Def.

Fund v. Vaught, No. 20-1538, 2021 WL 3482998, at *1 (8th

Cir. Aug. 9, 2021) (citing Lujan v. Defs. of Wildlife, 504 U.S.

555 (1992)). These requirements assure that “there is a real

need to exercise the power of judicial review in order to

protect the interests of the complaining party.” Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009) (internal citations

omitted).

“The plaintiffs bear the burden of establishing these

elements, and must support each element in the same way as

any other matter on which they bear the burden of proof.”

Vaught, 2021 WL 3482998, at *1 (citing Lujan, 504 U.S. at

561). “On a motion to dismiss, therefore, the plaintiffs must

allege sufficient facts to support a reasonable inference that

they can satisfy the elements of standing.” Vaught, 2021 WL

3482998, at *1. “The plaintiff must assert facts that

affirmatively and plausibly suggest that the pleader has the

right he claims (here, the right to jurisdiction), rather than facts

that are merely consistent with such a right.” In re Polaris

Mktg., Sales Pracs., & Prod. Liab. Litig., No. 20-2518, 2021

WL 3612758, at *2 (8th Cir. Aug. 16, 2021) (citation omitted).

Injury in fact is “‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or

16a

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.

Robins, 578 U.S. 856, 136 S. Ct. 1540, 1548, as revised (May

24, 2016) (quoting Lujan, 504 U.S. at 560)). “A ‘concrete’

injury must be ‘de facto’; that is, it must actually exist” in

reality, rather than in the abstract.” Spokeo, 136 S. Ct. at1548.

“For an injury to be ‘particularized,’ it must affect the plaintiff

in a personal and individual way.” Id.

“Although imminence is concededly a somewhat

elastic concept, it cannot be stretched beyond its purpose,

which is to ensure that the alleged injury is not too speculative

for Article III purposes—that the injury is certainly

impending.” Clapper, 568 U.S. at 409 (emphasis in original

and citations omitted). “[A]llegations of possible future

injury are not sufficient.” Id. (emphasis in original).

“For causation to exist, the injury has to be fairly

traceable to the challenged action of the defendant, and not the

result of the independent action of some third party not before

the court.” Agred Found. v. U.S. Army Corps of Eng’g, 3 F.4th

1069, 1073 (8th Cir. 2021) (citation omitted). This “requires

the plaintiff to show a sufficiently direct causal connection

between the challenged action and the identified harm. That

connection cannot be overly attenuated.” Id.

“[W]hen the plaintiff is not himself the object of the

government action or inaction he challenges, standing is not

precluded, but it is ordinarily substantially more difficult to

establish.” Lujan , 504 U.S. at 562. “To satisfy that burden,

the plaintiff must show at the least that third parties will

likely react in predictable ways.” California v. Texas , 141

S. Ct. 2104, 2117 (2021) (citing Dep’t of Commerce v. New

York , 139 S. Ct. 2551, 2566 (2019)).

17a

Redressability, the third element of standing, requires

plaintiff to show that “it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Lujan, 504 U.S. at 561. In assessing redressability,

the court must “consider the relationship between the judicial

relief requested and the injury suffered.” California v. Texas,

141 S. Ct. 2104, 2115 (2021).

Plaintiffs have failed to establish any of these three

elements.

Injury in Fact

Plaintiffs ask the Court to 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 Estimates

were calculated; and that this yet-to-be identified regulation

will then harm Plaintiffs in a concrete and particularized way.

This “theory of standing, which relies on a highly attenuated

chain of possibilities, does not satisfy the requirement that

threatened injury must be certainly impending.” See Clapper,

568 U.S. at 410.

Summers v. Earth Island Institute, 555 U.S. 488 (2009)

is instructive. There, the Supreme Court held that

environmental organizations lacked standing to challenge

regulations that exempted a salvage sale of timber on the

ground that they failed to demonstrate injury in fact. In so

reasoning, the Supreme Court explained that the regulations at

issue “neither require[d] nor forb[ade] any action on the part

of the [organizations]” but instead merely prescribed

“standards and procedures” that governed “the conduct of

18a

Forest Service officials engaged in project planning.” 555

U.S. at 493; see also Clapper, 568 U.S. at 401 (holding

that the respondents’ theory that there was “an objectively

reasonable likelihood that their communications will be

acquired under [challenged statute permitting electronic

surveillance] at some point in the future [was] . . . too

speculative to satisfy the well-established requirement that

threatened injury must be ‘certainly impending’”).

Likewise here, EO 13990 neither requires nor forbids

any action on the part of Plaintiffs but instead merely

prescribes standards and procedures governing the conduct of

federal agencies engaged in rulemaking and other agency

actions when monetizing the value of changes in greenhouse

gas emissions. In such cases, standing is “substantially

more difficult to establish.” Lujan, 504 U.S. at 562.

Plaintiffs argue that cases like Summers and Clapper

do not apply “because instead of merely authorizing the injury,

. . . the Executive Order mandates the Interim [Estimates].”12

Plaintiffs also argue that “Summers merely stands for the unremarkable

proposition that a plaintiff lacks an injury to challenge procedural

regulations after settling the substantive claim causing the injury.” ECF

No. 35 at 16. The environmental organizations in Summers challenged

Forest Service regulations in general and as they applied to a particular

project (the Burnt Ridge project). See Summers, 555 U.S. at 490- 91. The

Supreme Court noted that the organizations would have established

standing with respect to the Burnt Ridge project, but by the time the case

reached the Supreme Court, the parties had settled their dispute over that

project. Id. at 494. Thus, the only challenge remaining was a challenge to

“the regulation in the abstract . . . , apart from any concrete application

that threaten[ed] imminent harm to [the organizations’] interests.” Id.

That procedural challenge in the abstract is the one that Plaintiffs here

19a

ECF No. 35 at 21. But Interim Estimates, alone, do not injure

Plaintiffs. Cf. City of Kennett, Mo. v. Env’t Prot. Agency, 887

F.3d 424, 431–32 (8th Cir. 2018) (holding that a city had

standing to challenge a “total maximum daily load” standard

for pollutants in a particular ditch where the standard directly

injured the city in the form of compliance costs). The injury

that Plaintiffs fear is from hypothetical future regulation

possibly derived from these Estimates. That injury is not

concrete and therefore insufficient for standing. See Nat’l

Ass’n of Home Builders v. E.P.A., 667 F.3d 6, 13 (D.C. Cir.

2011) (rejecting theory of standing based on only the

“possibility of [harmful] regulation” by federal agency)

(emphasis in original).

Causation and Redressability

For similar reasons, Plaintiffs have failed to establish

causation or redressability. In light of the inherently

speculative nature of Plaintiffs’ alleged harm, it is unknowable

in advance whether that harm caused by possible future

regulations would have any causal connection to EO 13990 or

the Interim Estimates. The causal chain, supported by a

number of bare assumptions, is too weak for standing.

It is true, as Plaintiffs assert, that, “Article III requires

no more than de facto causality,” which may be satisfied by

showing “the predictable effect of Government action on the

decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at

raise. And the Supreme Court was clear that plaintiffs lack standing to

pursue such a challenge in the absence of concrete, imminent harm.

Id. The Court observed that, to hold otherwise, “would fly in the face

of Article III's injury-in-fact requirement.” Id.

20a

2566. But the actions of the third parties here are far from

predictable.

In support of their argument otherwise, Plaintiffs rely

heavily on Bennett v. Spear, 520 U.S. 154 (1997), in which the

Supreme Court held that a group of ranchers and irrigation

districts had standing to challenge a Fish and Wildlife Service

biological opinion that had the effect of requiring minimum

water levels in particular reservoirs. The government in that

case conceded that, although the biological opinion purported

to be “advisory,” the relevant “statutory scheme presuppose[d]

that the biological opinion [would] play a central role in the

action agency’s decisionmaking process,” such that the

opinion “alter[ed] the legal regime to which the agency [was]

subject” and had a “virtually determinative effect” on the

agency’s resulting water level restrictions. Id. at 169-70

(emphasis added). In other words, the biological opinion

prescribed a particular action (imposition of water level

restrictions) which the agency was required to take or face

significant consequences, and that particular action posed

imminent injury to petitioners in the form of reduced irrigation

water. See id. at 170-71. The Supreme Court thus concluded

the petitioners’ injury was fairly traceable to the biological

opinion. Id. at 171.

Unlike the biological opinion in Bennett, neither EO

13990 nor the Interim Estimates mandate agencies issue the

particular regulations that Plaintiffs fear will harm them. As

noted above, the mandate in EO 13990 on which Plaintiffs

focus is limited to one of innumerable other factors in the costbenefit analysis conducted by a wide range of agencies in an

even wider range of regulatory contexts, and only to the extent

21a

consistent with applicable law. It is implausible to suggest that

the Interim Estimates alters the legal regime to which agencies

are subject.

Indeed, when asked at oral argument to explain how

exactly the Interim Estimates would apply in future agency

actions, Plaintiffs could not. Because they do not yet know.

Neither does this Court. There is simply no way to predict how

the Interim Estimates will affect an agency’s analysis, if at all,

without resorting to sheer speculation.

For similar reasons, Plaintiffs fail to demonstrate

redressability. Redressability may be shown “where a

favorable decision avoids, or at least delays, a regulatory

burden.” City of Kennett, 887 F.33d at 432 (citations omitted).

Plaintiffs’ requested relief in this case would do neither. Even

if the Court were to declare the Interim Estimates non-binding,

agencies would be free to—and may be required to, see Center

for Biological Diversity, 538 F.3d at 1200—consider the

social costs of greenhouse gas emissions. And agencies may

arrive at the same or even more costly regulations at the same

speed or even more quickly than Plaintiffs currently predict.

In short, Plaintiffs are attempting to do what the

Supreme Court cautioned against in Lujan, 497 U.S. 871.

“Instead of attacking the separate [rules or regulations]

allegedly causing them harm, [Plaintiffs] chose to challenge a

more generalized level of Government action.” 504 U.S. at

568. “This programmatic approach has obvious practical

advantages, but also obvious difficulties insofar as proof of

causation or redressability is concerned” and is “rarely if ever

appropriate for federal-court adjudication.” Id. Rather, a

“case-by-case approach . . . [while] understandably

22a

frustrating” to Plaintiffs, “is the traditional, and remains the

normal, mode of operation of the courts.” Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 894 (1990).

Relaxed Requirements for Procedural Injuries or for State

Plaintiffs

Plaintiffs argue that the standing requirements are

somewhat relaxed in this case for two reasons: (1) because

they have suffered a “procedural injury” in that they have been

denied the ability to file comments on the Interim Estimates,

and (2) because states in general are “entitled to special

solicitude in the Court’s standing analysis,” Massachusetts v.

EPA, 549 U.S. 497, 520 (2007). Both arguments are without

merit.

The Supreme Court has made clear that “deprivation

of a procedural right without some concrete interest that is

affected by the deprivation—a procedural right in vacuo— is

insufficient to create Article III standing.” Summers, 555 U.S.

at 496; see also Spokeo, 136 S. Ct. at 1549 (“[A plaintiff] could

not, for example, allege a bare procedural violation, divorced

from any concrete harm, and satisfy the injury-in-fact

requirement of Article III.”). Put simply, an allegation of

“‘procedural’ standing to challenge the . . . failure to provide

notice and an opportunity to submit comments pursuant to the

APA” is destined to fail where “no imminent injury in fact has

been alleged.” Nat’l Ass'n of Home Builders v. E.P.A., 667

F.3d 6, 15–16 (D.C. Cir. 2011); see also Summers, 555 U.S. at

497 (“Unlike redressability, . . . the requirement of injury in

fact is a hard floor of Article III jurisdiction that cannot be

removed by statute.”). As explained above, Plaintiffs have not

alleged imminent injury in fact. Therefore, they lack standing.

23a

Neither are Article III’s requirements excused merely

because a state sues in its sovereign capacity. In Massachusetts

v. EPA, a group of states sued the EPA, alleging that the

agency’s failure to regulate greenhouse gas emissions violated

the Clean Air Act and caused them injury in the form of harm

to their states’ environments. Massachusetts, 549 U.S. at 504.

The Supreme Court held that because one of the plaintiff

states, Massachusetts, “own[ed] a substantial portion of the

state’s coastal property, . . . it ha[d] alleged a particularized

injury in its capacity as a landowner.” Id. at 522. In so holding,

the Court rejected the EPA’s argument that, because the harm

from climate change is “widely shared,” it is the sort of

“generalized harm” that is insufficient to establish Article III

jurisdiction. Id. at 516-23. Rather, the Court held that “States

are not normal litigants for the purposes of invoking federal

jurisdiction,” because of their unique “desire to preserve

[their] sovereign territory.” Id. at 518-19. As such, the Court

accorded Massachusetts “special solicitude in [the] standing

analysis.” Id. at 520.

“Lower courts have lamented the ‘lack of guidance on

how they are to apply the special solicitude doctrine to

standing questions.’”13 California v. Trump, No. CV 19- 960

The Fifth Circuit recently described the doctrine has having “two

requirements: (1) the State must have a procedural right to challenge the

action in question, and (2) the challenged action must affect one of the

State's quasi-sovereign interests.” State v. Biden, No. 21-10806, 2021 WL

3674780, at *5 (5th Cir. Aug. 19, 2021). Like the Supreme Court in

Massachusetts v. EPA, the Fifth Circuit in Biden found that at least one

state litigant (Texas) had shown actual and imminent injuries that directly

flowed from—and could be redressed by enjoining—the agency’s

24a

(RDM), 2020 WL 1643858, at *6 (D.D.C. Apr. 2, 2020)

(quoting Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220,

1238 (10th Cir. 2012)). But whatever the exact meaning, it is

at least clear that “[t]his special solicitude does not eliminate

the state petitioner’s obligation to establish a concrete injury.”

Wyoming, 674 F.3d at 1238 (emphasis in original).

Massachusetts established such a concrete and

particularized injury to its coastal property. See

Massachusetts, 549 U.S. at 522. Plaintiffs here have not. Their

injuries are merely speculative, which is insufficient for

standing. See California, 2020 WL 1643858, at *7 (“[T]he

special-solitude and procedural-injury doctrines do not—and

cannot—alter the irreducible constitutional minimum of

standing reflected in the elements of injury in fact, causation,

and redressability.”).

Ripeness

Besides standing, Plaintiffs face another, closely

related jurisdictional barrier. Their claims are not ripe.

“Ripeness is a justiciability doctrine designed to prevent the

courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from

immigration-related action in that case. 2021 WL 3674780, at *4. But to

“remove any lingering doubt” as to redressability, the Fifth Circuit noted

that the special solicitude doctrine made this prong of standing “easier to

establish for certain state litigants than for other litigants.” 2021 WL

3674780, at *6. Here, even giving Plaintiffs the benefit of doubt that the

solicitude doctrine may afford, Plaintiffs cannot establish redressability or

any of the other Article III requirements.

25a

judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of

Interior, 538 U.S. 803, 807–08, (2003). “The touchstone of a

ripeness inquiry is whether the harm asserted has matured

enough to warrant judicial intervention.” Parrish v. Dayton,

761 F.3d 873, 875 (8th Cir. 2014) (citation omitted). The

doctrine “is drawn both from Article III limitations on judicial

power and from prudential reasons for refusing to exercise

jurisdiction.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.

“Determining whether administrative action is ripe for

judicial review requires us to evaluate (1) the fitness of the

issues for judicial decision and (2) the hardship to the parties

of withholding court consideration.” Id. “Both of these factors

are weighed on a sliding scale, but each must be satisfied to at

least a minimal degree.” City of Kennett, 887 F.3d at 432.

“Absent a statutory provision providing for immediate judicial

review, a regulation is not ordinarily considered the type of

agency action ‘ripe’ for judicial review under the . . . APA . . .

until the scope of the controversy has been reduced to more

manageable proportions, and its factual components fleshed

out, by some concrete action applying the regulation to the

claimant’s situation in a fashion that harms or threatens to

harm him.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.

Plaintiffs’ claims are not ripe for judicial review

because any impact of EO 13990 and the Interim Estimates

cannot “be said to be felt immediately” by Plaintiffs (if at all)

“in conducting their day-to-day affairs,” and because “no

irremediably adverse consequences flow[] from requiring a

later challenge.” See id. at 810 (citation omitted); see also

26a

State v. Yellen, No. 4:21CV376 HEA, 2021 WL 1889867, at

*5 (E.D. Mo. May 11, 2021) (dismissing Missouri’s challenge

to the American Rescue Plan Act on both standing and

ripeness grounds where “Missouri asked the Court to

determine the scope of the ARPA’s Offset Restriction well in

advance of any adverse effect and in a wholly, non-actionable

hypothetical context”).

In Ohio Forestry Association, Inc. v. Sierra Club, 523

U.S. 72 (1998), the Supreme Court held that a challenge to a

Forest Service plan alleging excess logging was not ripe for

judicial review because “[a]lthough the Plan set[] logging

goals, select[ed] the areas of the forest that [were] suited to

timber production, . . . and determine[d] which probable

methods of timber harvest [were] appropriate, . . . it [did] not

itself authorize the cutting of any trees.” 523 U.S. at 729.

Before the logging could take place, the Forest Service had to

“(a) propose a specific area in which logging will take place

and the harvesting methods to be used . . . ; (b) ensure that the

project is consistent with the Plan . . . ; (c) provide those

affected by proposed logging notice and an opportunity to be

heard . . . ; (d) conduct an environmental analysis . . . ; and (e)

subsequently make a final decision to permit logging, which

affected persons may challenge in an administrative appeals

process and in court . . . .” Id. at 729-30.

Likewise here, there is “considerable legal distance”

between the adoption of the Interim Estimates and the

moment—if one occurs—when a harmful regulation is issued.

See id. at 730. Withholding the Court’s consideration at

present will not cause Plaintiffs significant hardship. The time

or expense of having to pursue numerous challenges to each

27a

allegedly harmful regulation, rather than cutting the regulatory

process off prematurely, is not the type of harm sufficient to

justify immediate review. See id. at 734-35 (holding that the

fact that it would “be easier, and certainly cheaper, to mount

one legal challenge against the Plan now, than to pursue many

challenges to each site-specific logging decision to which the

Plan might eventually lead [is not] . . . sufficient by itself to

justify review in a case that would otherwise be unripe”).

The Court does not mean to disregard Plaintiffs’ fears

of future economic harm. But Plaintiffs will have ample

opportunity to bring legal challenges to particular regulations

if those regulations pose imminent, concrete, and

particularized injury. For example, in Zero Zone, Inc. v. United

States Department of Energy, the Seventh Circuit considered

a challenge to a Department of Energy (DOE) regulation of

the type Plaintiffs here fear—namely, a rule establishing new

energy efficiency standards for commercial refrigeration

equipment. That rule was developed after the agency

conducted a cost benefit analysis that considered, among other

factors, “an estimate of the monetized damages associated

with an incremental increase in carbon emissions in a given

year, known as the Social Cost of Carbon (‘SCC’).” 832 F.3d

654, 677 (7th Cir. 2016).

The petitioners contended that the relevant statutory

authority did not permit the DOE to consider environmental

factors and that the DOE’s analysis of the SCC was itself

arbitrary and capricious. Id. at 677. Like the Plaintiffs here, the

petitioners contended that the calculation of the SCC was

“irredeemably flawed” for a number of reasons and that the

DOE acted arbitrarily by accounting for indirect global

28a

benefits to the environment while ignoring indirect costs such

as the effects on displaced workers. Id. at 678. The Seventh

Circuit considered the petitioners’ arguments and held that the

DOE adequately responded to the petitioners’ concerns during

its notice-and-comment period and that the DOE’s analysis

was not arbitrary or capricious. Id.

In other words, the petitioners in Zero Zone, like many

others with similar concerns,14 had a full and fair opportunity

to address their objections to the SCC through the normal

review process under the APA—first, before the agency itself

and later, through judicial review. So, too, would Plaintiffs

here.15 Plaintiffs’ speculation that their objections will be

Indeed, as Defendants note, several courts have considered challenges to

specific agency actions on the theory that an agency inappropriately

accounted for the social costs of greenhouse gases. See, e.g., Ctr. for

Biological Diversity, 538 F.3d at 1203; Wyoming v. Dep’t of the Interior,

493 F. Supp. 3d 1046, 1080 (D. Wyo. 2020).

Plaintiffs suggest—cautiously, so as not to foreclose anticipated future

lawsuits— that the Supreme Court’s decision in Dep’t of Homeland Sec. v.

Regents of the Univ. of Cal., 140 S. Ct. 1891, 1910 (2020) “cast doubt” on

the notion that Plaintiffs could challenge the Interim Estimates as part of a

later complaint regarding agency action. See ECF No. 35 at 10. Regents

involved a challenge to the Department of Homeland Security’s (DHS)

recission of the Deferred Action for Childhood Arrivals (DACA) program.

140 S. Ct. at 1891. In rescinding DACA, DHS acted on the Attorney

General’s advice. Id. The Court noted that the Immigration and Nationality

Act (INA) bound DHS to the Attorney General’s legal conclusions and,

therefore, raised the question of whether a suit challenging DHS’s decision

was the “proper vehicle” for attacking the Attorney General’s underlying

legal conclusions. Id. at 1910. But because the parties had not addressed

that question in their briefs, the Court did not resolve it. Id. In other words,

Regents did not involve an executive order at all, raised a question

29a

“disregarded” or “receive no meaningful consideration” (ECF

No. 35, at 9, 11) is just that; it is not supported by well-pled

facts.

In fact, the evidence suggests the opposite. In their

motion for a preliminary injunction, Plaintiffs describe a

recent proceeding before the Federal Energy Regulatory

Commission (FERC), in which FERC “request[ed] comments

on whether ‘the [Natural Gas Act], [National Environmental

Policy Act], or other federal statute[s] authorize[d] or

mandate[d] the use of Social Cost of Carbon (SCC) analysis

by [FERC] in its consideration of certificate applications.’”

ECF No. 18 at 35 (quoting Notice of Inquiry, Certification of

New Interstate Natural Gas Facilities, 86 Fed. Reg. 11,268-72

(Feb. 24, 2021)). FERC also “ask[ed] for comment on how the

SCC could be ‘used to determine whether a proposed project

is required by public convenience and necessity,’ because that

is the statutory language that Congress requires FERC to meet

when certifying a new pipeline.” Id. at 26.

Plaintiffs state that they “took advantage of this

process and commented.”16 Id. at 35 n.7; see also ECF No. 35

involving a unique provision of the INA not relevant here, and, in any

event, did not answer the question. Regents is thus inapposite. Plaintiffs

have not cited, and the Court has not found, any legal authority that would

preclude Plaintiffs from challenging the Interim Estimates as part of a later

challenge to agency action. To the contrary, such claims are regularly heard

by federal courts. E.g., Zero Zone, 832 F.3d at 677.

At oral argument, Plaintiffs also described a newly proposed EPA rule

regarding emissions standards for light duty vehicles that allegedly relies

on the Interim Estimates. Plaintiffs stated that they intended to participate

30a

at 16 n.1 (noting that their comments “explain[ed] that the

Interim Values are arbitrary, outdated, and the process lacks

transparency”). Plaintiffs have not suggested that FERC

disregarded their comments. But if that happens, and if FERC

then takes some action that harms Plaintiffs in a concrete and

particularized way, Plaintiffs may seek relief in the

appropriate court, after exhausting any applicable

administrative remedies and complying with any applicable

statutory authority.17 See, e.g., 15 U.S.C. § 717r(b) (setting

forth the procedures for seeking review of FERC orders under

the Natural Gas Act); N.J. Conservation Found. v. Fed.

Energy Regul. Comm'n, 353 F. Supp. 3d 289, 295 (D.N.J.

2018) (“[T]he courts of appeals have exclusive jurisdiction to

review all matters inhering in natural gas pipelines certificate

proceedings before FERC.”).

In short, the Court agrees with Defendants’

assessment:

A court’s determination of the legality of an

agency’s reliance on the Interim Estimates will

necessarily be informed by the specific

statutory directives that Congress has provided

to guide the agency’s actions. The Court cannot

meaningfully

engage

with

Plaintiffs’

arguments en masse, divorced from the context

in the notice-and-comment proceedings with respect to this rule and, if

appropriate, seek judicial relief in the proper forum.

As Defendants correctly note, the fact that governing statutes may vest

jurisdiction to challenge particular regulations or orders exclusively in

certain courts, such as the federal courts of appeal, makes premature review

by this Court particularly inappropriate.

31a

of particular agencies operating under specific

statutory delegations of authority.

ECF No. 28 at 50. That is to say, “further factual development

would significantly advance [the court’s] ability to deal with

the legal issues presented and would aid . . . in their

resolution.” Ohio Forestry Ass’n, 523 U.S. at 737.

For all of these reasons, the Court will grant

Defendants’ motion to dismiss for lack of subject matter

jurisdiction. Doing so properly responds to the separation-of

powers concerns raised by Plaintiffs by respecting the limits

of judicial power.

Remaining Motions and Arguments

Because the Court lacks jurisdiction, it must dismiss

this lawsuit without prejudice and without reaching the merits

of Plaintiffs’ claims or Plaintiffs’ motion for preliminary

injunction.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion

to dismiss for lack of subject matter jurisdiction is

GRANTED. ECF No. 27.

IT IS FURTHER ORDERED that Plaintiffs’ motion

for a preliminary injunction is DISMISSED as moot. ECF No.

17.

A separate Order of Dismissal will accompany this

Memorandum and Order.

32a

AUDREY G. FLEISSIG

UNITED STATES DISTRICT

JUDGE

Dated this 31st day of August, 2021.

33a

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF MISSOURI EASTERN DIVISION

STATE OF

MISSOURI, et al.,

)

Plaintiffs,

)

) Case No. 4:21-cv-00287-AGF

)

JOSPEH R.

)

BIDEN, JR., et al.,

)

ORDER OF DISMISSAL

Pursuant to the Memorandum and Order issued herein

on this day,

IT IS HEREBY ORDERED, ADJUDGED, and

DECREED that this case is DISMISSED without

prejudice.

AUDREY G. FLEISSIG

UNITED STATES DISTRICT JUDGE

Dated this 31st day of August, 2021.

34a

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-3013

___________________________

State of Missouri, et al.

Plaintiffs - Appellants

Joseph R. Biden, Jr., in his official capacity as

the President of the United States of America, et al.

Defendants - Appellees

-----------------------------Committee for a Constructive Tomorrow

Amicus on Behalf of Appellants

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Submitted: June 16, 2022

Filed: October 21, 2022

____________

Before LOKEN and KELLY, Circuit Judges, and

MENENDEZ, District Judge.*

____________

*The Honorable Katherine M. Menendez, United States

District Judge for the District of Minnesota, sitting by

designation.

35a

LOKEN, Circuit Judge.

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,1

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. 86 Fed. Reg. at 704041.

The IWG is co-chaired by the Chair of the Council of Economic Advisers,

the Director of the Office of Management and Budget (OMB), and the

Director of the Office of Science and Technology Policy. It includes the

Secretaries of the Treasury, the Interior, Agriculture, Commerce, Health

and Human Services, Transportation, and Energy; the Chair of the Council

on 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, or their designees. 86 Fed.

Reg. at 7040.

36a

The IWG published interim SC-GHG estimates in

February 2021; final estimates have not yet been published.

The State of Missouri and twelve other States2 then filed this

action against President Biden, the IWG, numerous federal

officials, departments, and agencies. In their March 26, 2021,

First Amended Complaint, the States requested injunctive and

declaratory relief, asserting four causes of action: (1)

“Violation of the Separation of Powers;” (2) “Violation of

Agency Statutes;” (3) “Procedural Violation of the APA”; and

(4) “Substantive Violation of the APA.” The States moved for

a preliminary injunction prohibiting “defendants, except for

the President, from using the [interim SC-GHG estimates] as

binding values in any agency action.” The Defendants moved

to dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1), and for failure to state a

claim under Rule 12(b)(6), arguing that the States lack Article

III standing, and that their challenges to the interim SC-GHG

estimates are not ripe for adjudication and are meritless. The

district court3 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. Missouri v. Biden, 558 F. Supp. 3d 754

(E.D. Mo. 2021).4

Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio,

Oklahoma, South Carolina, Tennessee, and Utah.

The Honorable Audrey G. Fleissig, United States District Judge for the

Eastern District of Missouri.

The district court did not reach Defendants’ contention that the States’

claims are without merit, and neither do we. With respect to future

challenges to the merits of the SC-GHG estimates, the dismissal is without

37a

The Plaintiff States appeal, arguing they have Article

III standing, their claims are ripe for adjudication, and we

should remand with directions to enter the requested

preliminary injunction. We review the issues of Article III

standing and ripeness de novo. Missouri v. Yellen, 39 F.4th

1063, 1067 (8th Cir. 2022). We conclude that the States are

requesting a federal court to grant injunctive relief that directs

“the current administration to comply with prior

administrations’ policies on regulatory analysis [without] a

specific agency action to review,” a request that is “outside the

authority of the federal courts” under Article III of the

Constitution. Louisiana by & through Landry v. Biden, No.

22-30087, 2022 WL 866282, at *3 (5th Cir. Mar. 16), appeal

to vacate denied, 142 S. Ct. 2750 (May 26, 2022).

Accordingly, we affirm.

I. Background

Dating back at least to President Richard Nixon’s

administration, Presidents have instituted procedures

coordinating federal agency actions, and, of particular

relevance here, requiring agencies to engage in quantified

cost-benefit analyses before imposing or adjusting regulatory

burdens. Article II, Section 1 of the Constitution vests

“executive Power” in the President. It is not a shared power.

The President and his White House staff have a “basic need . .

. to monitor the consistency of executive agency regulations

with Administration policy.” Subject of course to statutory

limits and directives, this need demands the creation of

interagency working groups or teams whose purposes are to

prejudice, like the Rule 12(b)(1) dismissal in Yeransian v. B. Riley FBR,

Inc., 984 F.3d 633, 636 (8th Cir. 2021).

38a

advise the President on policy questions that affect numerous

agencies, and to communicate to those agencies the policies

the President adopts for his administration. See, e.g., Sierra

Club v. Costle, 657 F.2d 298, 405-06 & n.524 (D.C. Cir.

1981). Thus, we reject the States’ broad contention that the

IWG’s SC-GHG estimates are invalid because the IWG

possesses “no delegation of any legislative authority” by

Congress. The IWG was formed by the President to

communicate his policies to agencies in exercising their

delegated legislative authority. We may not prohibit this

sensible exercise of the President’s executive power. The

policies here at issue affect the manner in which agencies

engage in quantified cost-benefit analysis before adopting

regulations or implementing agency actions, an analysis that

is now universally recognized as critical to the proper exercise

of executive power. See, e.g., Meyer v. Bush, 981 F.2d 1288,

1298 (D.C. Cir. 1993) (President Reagan’s Task Force on

Regulatory Relief); Exec. Order No. 12866, 58 Fed. Reg.

51,735 (Sept. 30, 1993); Off. of Mgmt. & Budget (“OMB”),

Exec. Off. of the President, OMB Circular A-4, at 1, 27 (Sept.

17, 2003). As the history of EO 13990 makes clear, this type

of analysis raises complex, controversial issues that trigger

intense political, economic, and environmental disagreement.

But absent a specific controversy that falls within the

judiciary’s Article III power to decide Cases and

Controversies, these policy disagreements are for the people

to decide through their elected representatives in the

legislative and executive branches of government. See

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

39a

As the focus on climate change intensified in recent

decades, Executive Branch cost-benefit analyses began

incorporating the direct and indirect effects of greenhouse gas

emissions caused by agency actions. To ensure interagency

consistency, President Obama in 2010 established the first

IWG to define a standard estimate for the social cost of carbon.

See IWG, Technical Support Document: Social Cost of

Carbon for Regulatory Impact Analysis Under Executive

Order 12866 (Feb. 2010). The initial estimates were revised

and republished after an Administrative Procedure Act

(“APA”) notice and comment period. See IWG, Response to

Comments: Social Cost of Carbon for Regulatory Impact

Analysis Under Executive Order 12866 (July 2015). Estimates

for methane and nitrous oxide were added in 2016.5

In E.O. 13783, President Trump disbanded the IWG

and set aside its SC-GHG estimates. E.O. 13783 allowed

agencies to continue to use their own SC-GHG estimates in a

manner consistent with general processes for agency costbenefit analysis. See 82 Fed. Reg. at 16095-96. In E.O. 13990,

President Biden established a reconstituted IWG and directed

it to publish interim and final SC-CHG estimates “as

appropriate and consistent with applicable law.” The IWG’s

interim SC-GHG estimates, published on February 26, 2021,

were the same as the Obama IWG’s estimates, adjusted for

inflation. See IWG, Technical Support Document: Social Cost

See IWG, Addendum to Technical Support Document on Social Cost of

Carbon for Regulatory Impact Analysis under Executive Order 12866:

Application of the Methodology to Estimate the Social Cost of Methane

and the Social Cost of Nitrous Oxide (Aug. 2016).

40a

of Carbon, Methane, and Nitrous Oxide Interim SC-GHG

estimates under Executive Order 13990 (Feb. 2021).

After this suit was filed but before the district court

ruled on the parties’ cross motions, the OMB opened a notice

and comment period on the interim SC-GHG estimates and on

strategies for incorporating contemporary science and

economics research in defining the final estimates. OMB,

Notice of Availability and Request for Comment on

“Technical Support Document: Social Cost of Carbon,

Methane, and Nitrous Oxide Interim SC-GHG estimates

Under E.O. 13990”, 86 Fed. Reg. 24669 (May 7, 2021). In

June 2021, the Office of Information and Regulatory Affairs

(“OIRA”) published a document clarifying that agencies must

use the IWG’s interim SC-GHG estimates in complying with

the general cost-benefit analysis principles adopted in

Executive Order 12866 and applicable statutes. OIRA, Social

Cost of Greenhouse Gas Emissions: Frequently Asked

Questions (FAQs) (June 3, 2021).

II. The Plaintiff States Lack Article III Standing

“Standing to sue is a doctrine rooted in the traditional

understanding of a case or controversy.” Spokeo, Inc. v.

Robins, 578 U.S. 330, 338 (2016). It “serves to prevent the

judicial process from being used to usurp the powers of the

political branches.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 408 (2013). The “irreducible constitutional minimum of

standing” requires plaintiffs to show they “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision.” Spokeo, 578 U.S. at 338

(quotation and citations omitted). To avoid dismissal for lack

41a

of standing, the States, like private plaintiffs, “must allege

sufficient facts to support a reasonable inference that they can

satisfy the elements of standing.” Yellen, 39 F.4th at 1068

(quotation omitted). The “standing inquiry [is] especially

rigorous when reaching the merits of the dispute would force

us to decide whether an action taken by one of the other two

branches of the Federal Government was unconstitutional.”

Clapper, 568 U.S. at 408 (quotation omitted).

“To establish injury in fact, a plaintiff must show that

he or she suffered an invasion of a legally protected interest

that is concrete and particularized and actual or imminent, not

conjectural or hypothetical.” Spokeo, 578 U.S. at 339

(quotations omitted). The Supreme Court has “repeatedly

reiterated that threatened injury must be certainly impending

to constitute injury in fact, and that allegations of possible

future injury are not sufficient.” Clapper, 568 U.S. at 409

(emphasis in original) (cleaned up). In their First Amended

Complaint, the States allege a host of economic, sovereign,

and procedural injuries.

(1) Although their principal focus is elsewhere, the

States allege that direct monetary injury will result from

federal agencies’ future use of the interim SC-GHG estimates.

They argue 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. Economic injury to a

State from increased proprietary costs or reduced tax revenues

can certainly be sufficiently “concrete and particularized” to

give the State standing to sue, provided the threatened injury

42a

is “certainly impending” and “fairly traceable” to the

challenged conduct. Cf. Dep’t. of Commerce v. New York,

139 S. Ct. 2551, 2565 (2019). So why do these alleged injuries

not suffice to avoid a motion to dismiss for lack of standing in

this case?

The problem with this contention, as the district court

explained, is that the 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.”

558 F. Supp. 3d at 765. This theory of injury in fact “does not

satisfy the requirement that threatened injury must be certainly

impending” because it “relies on a highly attenuated chain of

possibilities.” Clapper, 568 U.S. at 410, citing Summers v.

Earth Island Inst., 555 U.S. 488, 496 (2009).

In Summers, the Court dismissed for lack of standing

plaintiffs’ challenge to the United States Forest Service’s

exemption of certain timber sales from notice and comment

rule-making. Without injury allegations tied to a specific

logging project, the Court concluded, the mere statistical

likelihood that the regulations would harm the plaintiffs in the

future was insufficient. 555 U.S. at 498. The challenged Forest

Service procedures “neither require nor forbid any action on

the part of respondents. . . . [They] govern only the conduct

of Forest Service officials engaged in project planning.” Id. at

493. Similarly here, even if E.O. 13990 makes their use

43a

mandatory, the interim SC-GHG estimates only establish a

consistent standard for one factor federal agencies may use

when conducting cost-benefit analyses they are obligated to

complete under executive branch regulations and statutory

directives. We agree with the district court that the “Interim

SC-GHG estimates, alone, do not injure Plaintiffs. . . . The

njury that Plaintiffs fear is from hypothetical future regulation

possibly derived from these Estimates.” 558 F. Supp. 3d at

766.

The government’s brief aptly summarizes the

estimates’ limited impact: “if agencies propose future

regulations, if they conduct cost-benefit analyses for those

regulations, and if they choose to monetize GHG emissions in

those analyses, then the agencies must use the Interim SCGHG estimates.” This highly attenuated theory of injury does

not satisfy the States’ burden to show the requisite causation.

“For causation to exist, the injury has to be fairly traceable to

the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.”

Agred Found. v. U.S. Army Corps of Engr’s, 3 F.4th 1069,

1073 (8th Cir.

2021) (quotation omitted). In these

circumstances, even if the States plausibly allege concrete

injury, they fail to show the alleged injuries are caused by the

interim SCGHG estimates.

(2) On appeal, the States argue the district court also

erred by failing to take into account the past and ongoing

sovereign injury caused by the interim SC-GHG estimates’

intrusion into the States’ role as regulators in cooperative

federalism programs such as those mandated by the National

Environmental Policy Act (NEPA), Clean Air Act state

44a

implementation plans, and federal highway administration

actions. They argue this injury -- “depriv[ing] the States of

freedom and discretion that they otherwise would have had in

administering these programs” -- “does not depend on the

impact of a future agency action, because it immediately

affects how States participate in formulating agency actions.”

Whether and when alleged sovereign injuries can

constitute the concrete and particularized injury in fact

required for Article III standing is a controversial, unsettled

question, as the Supreme Court’s 5 to 4 decision in

Massachusetts v. EPA, 549 U.S. 497 (2007), makes clear.

However, 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.

Yellen, 39 F.4th at 1070 n.7, citing Massachusetts v. EPA, 549

U.S. at 521-23.

E.O. 13990 explicitly states that the interim SC-GHG

estimates apply only to federal “executive departments and

agencies.” 86 Fed. Reg. at 7037. “[W]here a causal relation

between injury and challenged action depends on the decision

of an independent third party [here, future regulatory decisions

of other federal agencies] standing is not precluded but it is

ordinarily substantially more difficult to establish.” California

v. Texas, 141 S. Ct. 2104, 2117 (2021) (cleaned up). Here,

neither 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 States would prefer that their

federal agency partners not use these estimates in future

45a

program planning or decision-making. But that is not concrete

harm to the States. “No concrete harm, no standing.”

Transunion, 141 S. Ct. at 2200.

(3) The States further argue the district court erred in

concluding “that Article III standing could never exist until a

future agency action based on the [interim SCGHG estimates]

is finalized.” They cite Bennett v. Spear, 520 U.S. 154 (1997),

as controlling contrary authority. In Bennett, ranchers and

irrigation districts challenged a Fish and Wildlife Service

“biological opinion” issued under the Endangered Species

Act. The Supreme Court reversed the dismissal of their action

for lack of standing. Though plaintiffs’ threatened injury -allocation of less water under the Klamath Irrigation Project - would be caused by a third party, the Bureau of Reclamation,

the Court held that plaintiffs met their “relatively modest”

burden of alleging injury that is “fairly traceable” to the

biological opinion because that opinion “has a powerful

coercive effect on the action agency,” “alters the legal regime

to which the action agency is subject,” and has a “virtually

determinative effect” on agency action that will result in

concrete and particularized harm to the plaintiffs. Id. at 16971. The district court distinguished Bennett because “neither

EO 13990 nor the Interim SCGHG estimates mandate

agencies issue the particular regulations that Plaintiffs fear will

harm them.” 558 F. Supp. 3d at 767. We agree.

The facts alleged here are materially different than in

Bennett. The States seek injunctive relief against all future

uses of the interim SC-GHG estimates; the Court in Bennett

addressed a concrete dispute about a pending agency action

affecting a specific irrigation project. Moreover, unlike the

46a

biological opinion’s “virtually determinative effect” on

specific agency action in Bennett, the interim SC-GHG

estimates are only “one of innumerable other factors in the

cost-benefit analysis conducted by a wide range of agencies

in an even wider range of regulatory contexts, and only to the

extent consistent with applicable law.” 558 F. Supp. 3d at 767.

We agree with the Fifth Circuit that these alleged future

increased regulatory costs are not traceable to the interim SCGHG estimates “because agencies consider a great number of

other factors in determining when, what, and how to regulate

or take agency action (and the Plaintiff States do not challenge

a specific regulation or action).” Louisiana v. Biden, 2022 WL

866282, at *2 (emphasis in original).

(4) Finally, the States argue they suffered procedural

harm when the IWG published initial estimates without APA

notice and comment procedures. They assert this injury alone

gives them Article III standing, pointing to our decision in

Iowa League of Cities v. EPA, 711 F.3d 844, 870-71 (8th Cir.

2013). We reject this contention for two independent reasons.

First, the Supreme Court has held that the “deprivation

of a procedural right without some concrete interest that is

affected by the deprivation -- a procedural right in vacuo -- is

insufficient to create Article III standing.” Summers, 555 U.S.

at 496. In Iowa League of Cities, we held that we had subject

matter jurisdiction to review an APA procedural challenge to

agency “guidance letters” responding to a Senator’s inquiries

because the letters were binding policy promulgations that

threatened the plaintiffs’s concrete interest “in avoiding

regulatory obligations above and beyond those that can be

statutorily imposed upon them.” 711 F.3d at 871. Here, the

47a

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.”

Second, the States assert that the IWG is an “agency”

subject to APA notice and comment requirements. But in

support, they cite only Soucie v. David, 448 F.2d 1067, 1075

(D.C. Cir. 1971), a case holding that the Office of Science and

Technology, an entity within the Executive Office of the

President, was an “agency” subject to the disclosure

requirements of the Freedom of Information Act (FOIA),

which is part of the APA. Congress approved this decision

when it amended the definition of “agency” in the section of

the APA that imposes FOIA requirements to include “the

Executive Office of the President.” 5 U.S.C. § 552(f)(1)

(formerly § 552(e)); see Meyer, 981 F.2d at 1291-92. But the

APA’s rule-making requirements, 5 U.S.C. § 553, apply to an

“agency” as generally defined in 5 U.S.C. § 551(1) -- “each

authority of the Government of the United States.” The

Supreme Court has never held that the President’s interagency

working groups are § 551(1) “agencies” and therefore their

“actions” are subject to APA notice and comment

requirements. We doubt it would do so, because such a ruling

would encourage constant judicial interference with the

President’s exercise of his executive power. Cf. Kissinger v.

Reporters Comm., 445 U.S. 136, 155-58 (1980). We certainly

will not be the first to make this extraordinary leap. For this

reason, too, the States have failed to allege plausible

procedural injury in fact.

48a

The States failed to allege plausible injury in fact fairly

traceable to the interim SC-GHG estimates. Thus, their

complaint was properly dismissed for lack of subject matter

jurisdiction, specifically, lack of Article III standing. We need

not consider the third indispensable element of Article III

standing, that it be “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

(quotations omitted).

III. Conclusion

The Plaintiff States failed to plausibly allege the

“irreducible constitutional minimum” 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. The Plaintiff States disagree with

the President’s policies reflected in the interim SC-GHG

estimates, but it is not our role to “exercise general legal

oversight of the Legislative and Executive Branches.”

TransUnion, 141 S. Ct. at 2203. When executive agencies or

officials take or propose to take specific actions based on

reliance on the interim SC-GHG estimates, E.O. 13990 does

not exempt them from complying with statutory duties

imposed by the APA, including providing opportunities for

notice and comment. And if the States believe that specific

agency actions justified by the interim SC-GHG estimates

inflict concrete and particularized injury, they may challenge

the actions, and the interim SC-GHG estimates themselves, in

federal court. See 5 U.S.C. § 706. But the States’ “generalized

grievance of how the current administration is considering SC-

49a

GHG. . . . fails to meet the standards of Article III standing.”

Louisiana v. Biden, 2022 WL 866282, at *2.

The judgment of the district court is affirmed.

50a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 21-3013

State of Missouri, et al.

Appellants

Joseph R. Biden, Jr., in his official capacity as the President

of the United States of America, et al.

Appellees

-----------------------------Committee for a Constructive Tomorrow

Amicus on Behalf of Appellant(s)

_________________________________________________

Appeal from U.S. District Court for the Eastern District of

Missouri - St. Louis

(4:21-cv-00287-AGF)

________________________________________________

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

January 27, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

51a

Presidential Documents

Executive Order 13990 of January 20, 2021

Protecting Public Health and the Environment

and Restoring Science To Tackle the Climate

Crisis

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, it is hereby ordered as follows:

Section 1. Policy. Our Nation has an abiding commitment

to empower our workers and communities; promote and

protect our public health and the environment; and

conserve our national treasures and monuments, places

that secure our national memory. Where the Federal

Government has failed to meet that commitment in the

past, it must advance environmental justice. In carrying

out this charge, the Federal Government must be guided

by the best science and be protected by processes that

ensure the integrity of Federal decision-making. It is,

therefore, the policy of my Administration to listen to the

science; to improve public health and protect our

environment; to ensure access to clean air and water; to

limit exposure to dangerous chemicals and pesticides; to

hold polluters accountable, including those who

disproportionately harm communities of color and lowincome communities; to reduce greenhouse gas

emissions; to bolster resilience to the impacts of climate

change; to restore and expand our national treasures and

52a

monuments; and to prioritize both environmental justice

and the creation of the well-paying union jobs necessary

to deliver on these goals.

To that end, this order directs all executive departments

and agencies (agencies) to immediately review and, as

appropriate and consistent with applicable law, take

action to address the promulgation of Federal regulations

and other actions during the last 4 years that conflict with

these important national objectives, and to immediately

commence work to confront the climate crisis.

Sec. 2. Immediate Review of Agency Actions Taken

Between January 20, 2017, and January 20, 2021. (a) The

heads of all agencies shall immediately review all existing

regulations, orders, guidance documents, policies, and

any other similar agency actions (agency actions)

promulgated, issued, or adopted between January 20,

2017, and January 20, 2021, that are or may be

inconsistent with, or present obstacles to, the policy set

forth in section 1 of this order. For any such actions

identified by the agencies, the heads of agencies shall, as

appropriate and consistent with applicable law, consider

suspending, revising, or rescinding the agency actions. In

addition, for the agency actions in the 4 categories set

forth in subsections (i) through (iv) of this section, the

head of the relevant agency, as appropriate and consistent

with applicable law, shall consider publishing for notice

and comment a proposed rule suspending, revising, or

rescinding the agency action within the time frame

53a

specified.

(i)

Reducing Methane Emissions in the Oil and

Gas Sector: “Oil and Natural Gas Sector: Emission

Standards for New, Reconstructed, and Modified

Sources Reconsideration,” 85 FR 57398 (September 15,

2020), by September 2021.

(ii)

Establishing Ambitious, Job-Creating Fuel

Economy Standards: “The Safer Affordable FuelEfficient (SAFE) Vehicles Rule Part One: One National

Program,” 84 FR 51310 (September 27, 2019), by April

2021; and “The Safer Affordable Fuel-Efficient (SAFE)

Vehicles Rule for Model Years 2021-2026 Passenger

Cars and Light Trucks,” 85 FR 24174 (April 30, 2020),

by July 2021. In considering whether to propose

suspending, revising, or rescinding the latter rule, the

agency should consider the views of representatives

from labor unions, States, and industry.

(iii)

Job-Creating Appliance- and BuildingEfficiency Standards: “Energy Conservation Program

for Appliance Standards: Procedures for Use in New or

Revised Energy Conservation Standards and Test

Procedures

for

Consumer

Products

and

Commercial/Industrial Equipment,” 85 FR 8626

(February 14, 2020), with major revisions proposed by

March 2021 and any remaining revisions proposed by

June 2021; “Energy Conservation Program for

Appliance Standards: Procedures for Evaluating

Statutory Factors for Use in New or Revised Energy

Conservation Standards,” 85 FR 50937 (August 19,

2020), with major revisions proposed by March 2021

54a

and any remaining revisions proposed by June 2021;

“Final Determination Regarding Energy Efficiency

Improvements in the 2018 International Energy

Conservation Code (IECC),” 84 FR 67435 (December

10, 2019), by May 2021; “Final Determination

Regarding Energy Efficiency Improvements in

ANSI/ASHRAE/IES Standard 90.1-2016: Energy

Standard for Buildings, Except Low-Rise Residential

Buildings,” 83 FR 8463 (February 27, 2018), by May

2021.

(iv)

Protecting Our Air from Harmful Pollution:

“National Emission Standards for Hazardous Air

Pollutants: Coal- and Oil-Fired Electric Utility Steam

Generating Units— Reconsideration of Supplemental

Finding and Residual Risk and Technology Review,” 85

FR 31286 (May 22, 2020), by August 2021; “Increasing

Consistency and Transparency in Considering Benefits

and Costs in the Clean Air Act Rulemaking Process,” 85

FR 84130 (December 23, 2020), as soon as possible;

“Strengthening Transparency in Pivotal Science

Underlying Significant Regulatory Actions and

Influential Scientific Information,” 86 FR 469 (January

6, 2021), as soon as possible.

(b)

Within 30 days of the date of this order, heads

of agencies shall submit to the Director of the Office of

Management and Budget (OMB) a preliminary list of any

actions being considered pursuant to section (2)(a) of this

order that would be completed by December 31, 2021, and that

would be subject to OMB review. Within 90 days of the date

of this order, heads of agencies shall submit to the Director of

55a

OMB an updated list of any actions being considered pursuant

to section (2)(a) of this order that would be completed by

December 31, 2025, and that would be subject to OMB review.

At the time of submission to the Director of OMB, heads of

agencies shall also send each list to the National Climate

Advisor. In addition, and at the same time, heads of agencies

shall send to the National Climate Advisor a list of additional

actions being considered pursuant to section (2)(a) of this order

that would not be subject to OMB review.

(c)

Heads of agencies shall, as appropriate and

consistent with applicable law, consider whether to take any

additional agency actions to fully enforce the policy set forth

in section 1 of this order. With respect to the Administrator of

the Environmental Protection Agency, the following specific

actions should be considered:

(i)

proposing new regulations to establish

comprehensive standards of performance and emission

guidelines for methane and volatile organic compound

emissions from existing operations in the oil and gas

sector, including the exploration and production,

transmission, processing, and storage segments, by

September 2021; and

(ii)

proposing a Federal Implementation Plan in

accordance with the Environmental Protection Agency's

“Findings of Failure To Submit State Implementation

Plan Revisions in Response to the 2016 Oil and Natural

Gas Industry Control Techniques Guidelines for the

2008 Ozone National Ambient Air Quality Standards

(NAAQS) and for States in the Ozone Transport

Region,” 85 FR 72963 (November 16, 2020), for

56a

California, Connecticut, New York, Pennsylvania, and

Texas by January 2022.

(d)

The Attorney General may, as appropriate and

consistent with applicable law, provide notice of this order and

any actions taken pursuant to section 2(a) of this order to any

court with jurisdiction over pending litigation related to those

agency actions identified pursuant to section (2)(a) of this

order, and may, in his discretion, request that the court stay or

otherwise dispose of litigation, or seek other appropriate relief

consistent with this order, until the completion of the processes

described in this order.

(e)

In carrying out the actions directed in this

section, heads of agencies shall seek input from the public and

stakeholders, including State local, Tribal, and territorial

officials, scientists, labor unions, environmental advocates,

and environmental justice organizations.

Sec. 3. Restoring National Monuments. (a) The Secretary

of the Interior, as appropriate and consistent with

applicable law, including the Antiquities Act, 54 U.S.C.

320301 et seq., shall, in consultation with the Attorney

General, the Secretaries of Agriculture and Commerce,

the Chair of the Council on Environmental Quality, and

Tribal governments, conduct a review of the monument

boundaries and conditions that were established by

Proclamation 9681 of December 4, 2017 (Modifying the

Bears Ears National Monument); Proclamation 9682 of

December 4, 2017 (Modifying the Grand StaircaseEscalante National Monument); and Proclamation 10049

of June 5, 2020 (Modifying the Northeast Canyons and

57a

Seamounts Marine National Monument), to determine

whether restoration of the monument boundaries and

conditions that existed as of January 20, 2017, would be

appropriate.

(b)

Within 60 days of the date of this order, the

Secretary of the Interior shall submit a report to the President

summarizing the findings of the review conducted pursuant to

subsection (a), which shall include recommendations for such

Presidential actions or other actions consistent with law as the

Secretary may consider appropriate to carry out the policy set

forth in section 1 of this order.

(c)

The Attorney General may, as appropriate and

consistent with applicable law, provide notice of this order to

any court with jurisdiction over pending litigation related to

the Grand Staircase-Escalante, Bears Ears, and Northeast

Canyons and Seamounts Marine National Monuments, and

may, in his discretion, request that the court stay the litigation

or otherwise delay further litigation, or seek other appropriate

relief consistent with this order, pending the completion of the

actions described in subsection (a) of this section.

Sec. 4. Arctic Refuge. (a) In light of the alleged legal

deficiencies underlying the program, including the

inadequacy of the environmental review required by the

National Environmental Policy Act, the Secretary of the

Interior shall, as appropriate and consistent with

applicable law, place a temporary moratorium on all

activities of the Federal Government relating to the

implementation of the Coastal Plain Oil and Gas Leasing

Program, as established by the Record of Decision signed

58a

August 17, 2020, in the Arctic National Wildlife Refuge.

The Secretary shall review the program and, as

appropriate and consistent with applicable law, conduct a

new, comprehensive analysis of the potential

environmental impacts of the oil and gas program.

(b)

In Executive Order 13754 of December 9, 2016

(Northern Bering Sea Climate Resilience), and in the

Presidential Memorandum of December 20, 2016

(Withdrawal of Certain Portions of the United States Arctic

Outer Continental Shelf From Mineral Leasing), President

Obama withdrew areas in Arctic waters and the Bering Sea

from oil and gas drilling and established the Northern Bering

Sea Climate Resilience Area. Subsequently, the order was

revoked and the memorandum was amended in Executive

Order 13795 of April 28, 2017 (Implementing an AmericaFirst Offshore Energy Strategy). Pursuant to section 12(a) of

the Outer Continental Shelf Lands Act, 43 U.S.C. 1341(a),

Executive Order 13754 and the Presidential Memorandum of

December 20, 2016, are hereby

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