Eight Circuit Finds States Lacked Article III Standing to Challenge Biden Administration’s Carbon Cost Metric

December 2022

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 3, Number 3

In State of Missouri v. Biden, the Eighth Circuit Court of Appeals affirmed the lower court’s ruling that Missouri and the other states that filed suit against President Biden had no standing to challenge Executive Order (E.O.) 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”: E.O. 13990 expressly revoked or suspended many Executive Orders issued by President Donald Trump, including revoking E.O. 13783, which disbanded the Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) established by President Barack Obama in 2017. E.O. 13990 re-established the IWG, directed it to publish interim and then final estimates of the social cost of greenhouse gas (GHG) emissions (interim SC-GHG estimates), and required federal agencies to use those estimates when monetizing the costs and benefits of future agency actions and regulations. (86 Fed. Reg. 7037 (Jan. 20, 2021).): The Court of Appeals held that per article III of the Constitution, a federal court cannot grant instructive relief that directs the current administration to comply with past administrations’ policies without a specific agency action to review.

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