Missouri v. Biden

The Eighth Circuit Court of Appeals denied a petition for rehearing en banc of a panel decision affirming the dismissal of a challenge brought by Missouri and other states to the Biden administration’s social cost of greenhouse gases estimates. The panel found that the states did not allege an injury that was fairly traceable to the estimates.

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Missouri and 12 other states petitioned the Eight Circuit Court of Appeals for rehearing en banc of its decision affirming the dismissal of a challenge to the Biden administration’s social cost of greenhouse gas estimates. The states argued that the dismissal on standing grounds was inconsistent with Eighth Circuit precedent on standing for procedural challenges to substantive rules made without notice and comment. The states also contended that the panel’s decision raised “exceptionally important questions” regarding executive authority to exercise legislative rulemaking power.

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.

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