Missouri v. Biden

–

Missouri and 10 other states filed a petition for writ of certiorari seeking review of the dismissal, on standing grounds, of their challenge to the Biden administration’s interim social costs of greenhouse gases and President Biden’s executive order requiring the publication of the interim social costs of greenhouse gases and other related actions. The petition presented the question of whether the states’ alleged harms to their proprietary and sovereign interests (as well as a completed procedural injury) were sufficient for Article III standing. The petition argued that the states had 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” and result in harms to the states’ “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.” The states contended that these harms were not speculative. The states also alleged that the challenged actions harmed their sovereign interests by directing how states must conduct their duties in cooperative-federalism programs. They argued that the Eighth Circuit “simply refused to provide the special solicitude owed States.” The alleged procedural injury was an “deprivation of the right to participate in notice-and-comment rulemaking.”

The Eighth Circuit Court of Appeals affirmed a district court’s ruling that Missouri and other states did not have standing to challenge President Biden’s executive order directing federal agencies to use estimates of the social costs of greenhouse gas emissions (SC-GHG) to analyze the costs and benefits of agency actions. The Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) published interim SC-GHG estimates in February 2021; the states argued that the executive order’s directive and the estimates violated separation of powers principles as well as statutes such as the Clean Air Act and Administrative Procedure Act (APA). The Eighth Circuit found that the states did not allege an injury in fact that was fairly traceable to the SC-GHG estimates. The court concluded that the states’ alleged economic injuries, including increased costs of regulated goods and services and loss of tax revenues from regulated economic activity, would not result from the interim SC-GHG estimates themselves but from hypothetical future federal action. The court also rejected the contention that the interim estimates caused a “sovereign” injury by intruding on states’ role as regulators. In addition, the Eighth Circuit concluded that the states failed to allege a procedural injury based on the IWG’s failure to follow the APA’s notice-and-comment procedures when it published the interim estimates.