558 F.Supp.3d 754
E.D. Mo.2021Background
- EO 13990 (Jan. 20, 2021) created an Interagency Working Group and directed agencies to use interim "social cost of greenhouse gases" (SC-GHG) estimates when monetizing greenhouse-gas impacts until final values are published.
- The Working Group issued a Technical Support Document with Interim Estimates on Feb. 26, 2021 (largely identical to prior 2016 estimates adjusted for inflation).
- Missouri and 12 states sued, challenging EO 13990 and the Interim Estimates as exceeding executive authority, violating agency statutes, and violating the APA (procedural and substantive claims), and sought a preliminary injunction barring agencies (other than the President) from using the Interim Estimates.
- Defendants moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim; they argued plaintiffs’ alleged injuries are speculative and any agency action would be subject to applicable statutory limits and process.
- The Court concluded plaintiffs lacked Article III standing and their claims were not ripe, granted the motion to dismiss for lack of jurisdiction, and dismissed the preliminary-injunction motion as moot without addressing the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | States will be imminently harmed because EO 13990 mandates use of Interim Estimates, causing increased regulation and costs | Injuries are speculative—harm depends on unpredictable future agency rules; relief may not redress alleged harms | No standing; dismissal for lack of jurisdiction |
| Ripeness | Interim Estimates are "self-executing" and deprive states of procedural participation and sovereign interests now | Claims are premature; courts should await concrete agency actions applying the estimates | Claims not ripe; dismissal warranted |
| Separation of powers (Count One) | EO 13990 unlawfully exercises legislative power by prescribing binding monetary values for regulatory use | Order is within executive practice to direct cost-benefit procedures and defers to statutes | Court did not reach the merits—dismissed on jurisdictional grounds |
| APA/Agency-statutory claims (Counts Two–Four) | Working Group is an "agency" and the Interim Estimates are final, binding agency action issued without notice-and-comment and thus unlawful | Working Group/President are not APA agencies for this purpose; there is no final agency action; statutory authority governs; relief may not be redressable | Court did not reach the merits—dismissed on jurisdictional grounds |
Key Cases Cited
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (procedural rule: future injuries must be "certainly impending" for standing)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (concrete and particularized injury requirement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (elements of Article III standing and limits on programmatic challenges)
- Summers v. Earth Island Inst., 555 U.S. 488 (no standing to challenge procedural rule in the abstract)
- Massachusetts v. EPA, 549 U.S. 497 (states may receive "special solicitude" but must still show concrete injury)
- Bennett v. Spear, 520 U.S. 154 (when advisory agency opinions have virtually determinative effect, injury and causation may exist)
- Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (ripeness—planning documents not ripe until site-specific action)
- Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803 (ripeness factors: fitness and hardship)
- Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172 (use of social cost estimates in agency rulemaking)
- Zero Zone, Inc. v. U.S. Dept. of Energy, 832 F.3d 654 (challenge to agency regulation that used SCC resolved on the merits after notice-and-comment)