Louisiana v. Biden

The Fifth Circuit Court of Appeals dismissed a lawsuit brought by Louisiana and other states to challenge President Biden’s executive order re-establishing an interagency working group to develop guidance on the social cost of greenhouse gases (SCGHG) and the SCGHG Interim Estimates published by the working group. The Fifth Circuit also vacated a preliminary injunction that enjoined federal defendants from using any work product of the working group or any SCGHG estimates that did not comply with Circular A-4 (cost-benefit analysis guidance issued by the Office of Management and Budget in 2003). The Fifth Circuit ruled that the states did not meet their burden of establishing standing because they did not allege an injury in fact. The court found that the fiscal, procedural, and sovereignty-related harms alleged by the states were harms that could be caused, not by the Interim Estimates, but by regulations that might result from the Interim Estimates. The Fifth Circuit said this “mere ‘possibility of regulation’” did not satisfy injury in fact requirements.

On April 14, 2022, the Fifth Circuit Court of Appeals denied a petition for rehearing en banc of its order staying a district court order that enjoined federal agencies from relying on the work product of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and from using any social cost of greenhouse gases (SC-GHG) estimates based on the global effects of greenhouse gases. The Fifth Circuit had concluded that the states were unlikely to succeed on the merits of their lawsuit because they lacked standing.

The plaintiff states filed a petition for rehearing en banc of the Fifth Circuit's decision granting the federal defendants' motion for a stay of the preliminary injunction pending appeal, arguing that the Fifth Circuit did not afford “special solicitude” to the states that was “fundamental” to the Fifth Circuit’s standing precedents and ignored harms to the states in their sovereign capacity. The states also contended that the alleged harm to the federal defendants was “amorphous.”

On March 16, 2022, the Fifth Circuit Court of Appeals granted the Biden administration’s motion for a stay pending appeal of a district court’s preliminary injunction barring federal agencies from relying on the work product of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and from using any social cost of greenhouse gases (SC-GHG) estimates based on the global effects of greenhouse gases. The district court had denied the federal defendants’ motion for a stay pending appeal a week earlier. The Fifth Circuit concluded that the federal defendants were likely to succeed on the merits because the plaintiff states, led by Louisiana, lacked standing. The court found that their alleged injury of “increased regulatory burdens” from consideration of the SC-GHG was “merely hypothetical” and a “generalized grievance.” In addition, the Fifth Circuit found that the plaintiff states did not meet their burden on the causation and redressability elements of standing. The appellate court further concluded that the federal defendants had shown they would be irreparably harmed absent a stay because the district court’s directives prevented or delayed federal agencies “in considering SC-GHG in the manner the current administration has prioritized within the bounds of applicable law” and because the district court’s order appeared to go beyond federal courts’ authority by requiring the Biden administration to comply with prior administrations’ policies. In addition, the Fifth Circuit concluded that a stay of the preliminary injunction would impose “minimal injury” on the plaintiff states.