States Seek Preliminary Injunction in Challenge to ‘Social Cost’ of Greenhouse Gases Executive Order

On Monday, 12 states moved for a preliminary injunction to halt President Joe Biden and his working group’s plan to incorporate the “social costs” of greenhouse gas emissions (SCGG) in federal agency actions. The motion claimed that the states will suffer irreparable harm if the federal defendants are not enjoined from enforcing Executive Order 13900 Section 5, which reportedly gives the executive branch the authority to set SCGG values.

The motion by Missouri, Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, South Carolina, Tennessee, and Utah explained that the task of assigning SCGGs, as stated by the executive order, requires decision makers to predict a range of inputs like changes in agricultural productivity, property damage figures from increased natural disasters, and the value of ecosystem services. The working group was directed to assign interim SCGG values for immediate use in agency actions prior to final rulemaking, the movants said. 

The interim value calculation, they asserted, is a “policy-laden process” that should be conducted by the legislative, rather than executive, branch. By creating interim values, the states claimed that the president’s working group unlawfully deprived them of their ability to participate in notice-and-comment rulemaking and other federal agency proceedings. In addition, they argued that it impacts their sovereign interests and, absent injunctive relief, will injure their proprietary interests by inflicting non-recoverable economic costs.

The states also balked at what they claim is a dishonest motive. “In theory, these numbers would justify imposing hundreds of billions or trillions of dollars in regulatory costs on the U.S. economy in upcoming years to offset these supposed ‘social costs.’ In practice, these numbers will inevitably be used to justify increased regulation and expansion of federal regulatory authority in numerous areas,” the motion contended.

The states asserted, in concert with the arguments set forth in their early March complaint, that the executive order oversteps the branch’s authority in violation of the U.S. Constitution and transgresses provisions of the Administrative Procedure Act. In turn, the plaintiffs request that the court preliminarily enjoin all defendants, except for the president, from using the SCGGs promulgated in the Feb. 26 working group publication as binding values in any agency action.