State v. Biden, 21-3013

52 F.4th 362

STATE of Missouri, et al., Plaintiffs - Appellants

v.Joseph R. BIDEN, Jr., in his official capacity as the President of the United States of America, et al., Defendants - Appellees

Committee for a Constructive Tomorrow, Amicus on Behalf of Appellants

No. 21-3013

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2022

Filed: October 21, 2022

Counsel who presented argument on behalf of the appellants and appeared on the appellants’ brief, was Dean John Sauer, Solicitor General, of Jefferson City, MO. The following attorney(s) also appeared on the appellants’ brief; Jeff P. Johnson, Deputy Solicitor General, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellees was Thomas Pulham, USDOJ, Civil Division, of Washington, DC. The following attorney(s) appeared on the appellees’ brief; Michael Raab, USDOJ, Civil Division, of Washington, DC., Jeffrey Eric Sandberg, USDOJ, Civil Division, of Washington, DC.

The following attorney(s) appeared on the amicus brief of Committee for a Constructive Tomorrow; Matthew Hardin, of Washington, DC.

Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.^*

LOKEN, Circuit Judge.

Upon taking office, President Joseph Biden issued Executive Order 13990 ("E.O. 13990"), entitled "Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis," and invoking "the authority vested in me as President by the Constitution and the laws of the United States of America." 86 Fed. Reg. 7037 (Jan. 20, 2021). E.O. 13990 expressly revoked or suspended numerous Executive Orders issued by his predecessor, President Donald Trump. See id. at 7041 -42. The revoked orders included Executive Order 13783 ("E.O. 13783"), in which President Trump disbanded an Interagency Working Group on the Social Cost of Greenhouse Gases ("IWG") established by President Barack Obama. 82 Fed. Reg. 16093, 16095-96 (Mar. 28, 2017). E.O. 13990 re-established the IWG with members from multiple cabinet-level and executive branch agencies,¹ directed the IWG to publish interim and then final estimates of the social costs of greenhouse gas emissions (hereafter, "interim SC-GHG estimates"), and required federal agencies to use these estimates when monetizing the costs and benefits of future agency actions and regulations. 86 Fed. Reg. at 7040-41.

The IWG published interim SC-GHG estimates in February 2021; final estimates have not yet been published. The State of Missouri and twelve other States² then filed this action against President Biden, the IWG, numerous federal officials, departments, and agencies. In their March 26, 2021, First Amended Complaint, the States requested injunctive and declaratory relief, asserting four causes of action: (1) "Violation of the Separation of Powers;" (2) "Violation of Agency Statutes;" (3) "Procedural Violation of the APA"; and (4) "Substantive Violation of the APA." The States moved for a preliminary injunction prohibiting "defendants, except for the President, from using the [interim SC-GHG estimates] as binding values in any agency action." The Defendants moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6), arguing that the States lack Article III standing, and that their challenges to the interim SC-GHG estimates are not ripe for adjudication and are meritless. The district court³ concluded the States lack Article III standing and their claims are not ripe for adjudication, granted Defendants’ motion to dismiss for lack of subject matter jurisdiction, and denied Plaintiffs’ motion for a preliminary injunction as moot. Missouri v. Biden, 558 F. Supp. 3d 754 (E.D. Mo. 2021).⁴

The Plaintiff States appeal, arguing they have Article III standing, their claims are ripe for adjudication, and we should remand with directions to enter the requested preliminary injunction. We review the issues of Article III standing and ripeness de novo . Missouri v. Yellen, 39 F.4th 1063, 1067 (8th Cir. 2022). We conclude that the States are requesting a federal court to grant injunctive relief that directs "the current administration to comply with prior administrations’ policies on regulatory analysis [without] a specific agency action to review," a request that is "outside the authority of the federal courts" under Article III of the Constitution. Louisiana by & through Landry v. Biden, No. 22-30087, 2022 WL 866282, at *3 (5th Cir. Mar. 16), appeal to vacate denied, ––– U.S. ––––, 142 S. Ct. 2750, 212 L.Ed.2d 805 (2022). Accordingly, we affirm.

I. Background

Dating back at least to President Richard Nixon's administration, Presidents have instituted procedures coordinating federal agency actions, and, of particular relevance here, requiring agencies to engage in quantified cost-benefit analyses before imposing or adjusting regulatory burdens. Article II, Section 1 of the Constitution vests "executive Power" in the President. It is not a shared power. The President and his White House staff have a "basic need ... to monitor the consistency of executive agency regulations with Administration policy." Subject of course to statutory limits and directives, this need demands the creation of interagency working groups or teams whose purposes are to advise the President on policy questions that affect numerous agencies, and to communicate to those agencies the policies the President adopts for his administration. See, e.g., Sierra Club v. Costle, 657 F.2d 298, 405-06 & n.524 (D.C. Cir. 1981). Thus, we reject the States’ broad contention that the IWG's SC-GHG estimates are invalid because the IWG possesses "no delegation of any legislative authority" by Congress. The IWG was formed by the President to communicate his policies to agencies in exercising their delegated legislative authority. We may not prohibit this sensible exercise of the President's executive power.

The policies here at issue affect the manner in which agencies engage in quantified cost-benefit analysis before adopting regulations or implementing agency actions, an analysis that is now universally recognized as critical to the proper exercise of executive power. See, e.g., Meyer v. Bush, 981 F.2d 1288, 1298 (D.C. Cir. 1993) (President Reagan's Task Force on Regulatory Relief); Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) ; Off. of Mgmt. & Budget ("OMB"), Exec. Off. of the President, OMB Circular A-4, at 1, 27 (Sept. 17, 2003). As the history of EO 13990 makes clear, this type of analysis raises complex, controversial issues that trigger intense political, economic, and environmental disagreement. But absent a specific controversy that falls within the judiciary's Article III power to decide Cases and Controversies, these policy disagreements are for the people to decide through their elected representatives in the legislative and executive branches of government. See TransUnion LLC v. Ramirez, ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021).

As the focus on climate change intensified in recent decades, Executive Branch cost-benefit analyses began incorporating the direct and indirect effects of greenhouse gas emissions caused by agency actions. To ensure interagency consistency, President Obama in 2010 established the first IWG to define a standard estimate for the social cost of carbon. See IWG, Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 (Feb. 2010). The initial estimates were revised and republished after an Administrative Procedure Act ("APA") notice and comment period. See IWG, Response to Comments: Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 (July 2015). Estimates for methane and nitrous oxide were added in 2016.⁵

In E.O. 13783, President Trump disbanded the IWG and set aside its SC-GHG estimates. E.O. 13783 allowed agencies to continue to use their own SC-GHG estimates in a manner consistent with general processes for agency cost-benefit analysis. See 82 Fed. Reg. at 16095-96. In E.O. 13990, President Biden established a reconstituted IWG and directed it to publish interim and final SC-CHG estimates "as appropriate and consistent with applicable law." The IWG's interim SC-GHG estimates, published on February 26, 2021, were the same as the Obama IWG's estimates, adjusted for inflation. See IWG, Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim SC-GHG estimates under Executive Order 13990 (Feb. 2021).

After this suit was filed but before the district court ruled on the parties’ cross motions, the OMB opened a notice and comment period on the interim SC-GHG estimates and on strategies for incorporating contemporary science and economics research in defining the final estimates. OMB, Notice of Availability and Request for Comment on "Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim SC-GHG estimates Under E.O. 13990", 86 Fed. Reg. 24669 (May 7, 2021). In June 2021, the Office of Information and Regulatory Affairs ("OIRA") published a document clarifying that agencies must use the IWG's interim SC-GHG estimates in complying with the general cost-benefit analysis principles adopted in Executive Order 12866 and applicable statutes. OIRA, Social Cost of Greenhouse Gas Emissions: Frequently Asked Questions (FAQs) (June 3, 2021).

II. The Plaintiff States Lack Article III Standing

"Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). It "serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). The "irreducible constitutional minimum of standing" requires plaintiffs to show they "(1) suffered an injury in fact, ...