In a hearing on Wednesday, attorneys representing 13 states debated with the federal attorneys general’s office representing President Joe Biden and federal agencies over whether a preliminary injunction should be granted against President Biden’s executive order for determining a “social cost” for greenhouse gasses.
The hearing specifically addressed a motion to dismiss filed by the defendants and a motion for a preliminary injunction filed by the states, which are primarily Republican. The lawsuit contests an executive order which creates a working group tasked with setting a social cost, or a monetary charge, for released gasses, which is something the past few administrations have done.
The plaintiff’s attorney, John Sauer, Solicitor General of Missouri, claimed that the defendant has not disputed that the working group created by the executive order has no legislative authority to alter statute, or that the executive order leads to legislative action, because there is no prior rule that it would be interpreting.
Sauer alleged that because the federal agencies under the executive order are required to use the working group’s social cost determination that a non-delegated agency would be directing delegated agencies. It says that the agencies “must” use rather than that they “may” use the determined social cost values. He claimed that setting a social cost would be a “quintessentially legislative action.”
The plaintiffs further claimed that they do have an interest, and Article III standing, noting as the states have in previous briefings that the numbers decided by the working group would have a wide impact on public policies.
Stephen Pezzi argued for the defendant, although other attorneys were present. He claimed that the plaintiffs did not have standing, arguing that not being given notice or allowed time for public comment before the executive order were insufficient grounds. To support this, Pezzi noted that if those grounds were sufficient, every American would have standing rather than just the states. He additionally purported that the federal defendants had followed laws regarding notice.
Pezzi also claimed that rather than challenging the executive order, the states should be challenging specific statutes which implement the executive order on an agency by agency basis. He claimed that other courts have ruled that rules cannot be challenged until they have been used. The plaintiffs at this point, according to the defendants, do not have enough to show that they were injured, and are far from showing the “irreparable harm” required to receive the preliminary injunction they requested.
Sauer, however, claimed that this is the right time to challenge the rule, citing precedent where it was not possible to sue a second agency acting at the direction of another agency, which in this case would be the working group.
The judge overseeing the case did not hint how she might rule, but said that she would try to publish a ruling soon.
