Law Street Media

Biden Administration Seeks to Dismiss Social Cost Lawsuit

A placard outside the headquarters of the United States Environmental Protection Agency.

Environmental Protection Agency Headquarters Building in Washington DC

On Friday, President Biden and members of his administration asked the Eastern District of Missouri to dismiss a lawsuit filed by 12 attorneys general against it contesting the administration’s request for departments in the executive branch to determine a “social cost” for emissions, alleging that they breached the Constitution and the Administrative Procedure Act. 

The defendants include Biden, various individuals in the executive branch, and federal departments including the Environmental Protection Agency, Department of Energy, and the Government Interagency Working Group on Social Cost of Greenhouse Gases. The defendants were allegedly involved in setting a new social cost for emissions of carbon dioxide, methane, and nitrous oxide which the plaintiffs alleged could lead to increased restrictions and costs for agricultural and energy operations in their states.

In the complaint which was filed in March, the attorneys general for Missouri, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah alleged that Executive Order 13900 giving the executive branch the power to set the values for the social cost was a breach of powers, and that the costs should be set by the legislative branch. The states also filed a preliminary injunction in May, asking the court to stop the enforcement of the order. 

In its memorandum accompanying the motion to dismiss, the defendants said “all of the Plaintiffs’ claims are meritless; they suffer from a fundamental misunderstanding of the Executive Order and its place within the broader federal regulatory process … Plaintiffs may disagree as a general matter with federal climate change policy. But the remedy for that policy disagreement must come from the political branches, not the judiciary.” 

Although the attorneys general argued that setting the social cost threatened separation of powers in the government, Friday’s memorandum stated that the cost-benefit analysis of setting a social cost “is a longstanding presidential practice,” and was done through agency rules by President Obama and President Trump. 

The Biden administration claimed that the court does not have subject matter jurisdiction, specifically because the plaintiffs do not have Article III standing and have not actually been injured because of the executive order. The defendants further alleged that the plaintiffs do not have a cause of action as they are not contesting a final action. The defendants argued that although the plaintiffs disagree with the policies which led to the executive order, that does not merit the present lawsuit, because there is no injury traceable to the order. 

The defendants also opposed the plaintiffs’ motion for an injunction in the same memorandum. They alleged that as the plaintiffs cannot show either imminent or irreparable harm a preliminary injunction is not merited and would not be in the public interest. 

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