Dispute over states’ carbon costs draws skepticism from Eighth Circuit (1)

A panel of Eighth Circuit judges appeared strongly in favor of upholding a trial court order dismissing a lawsuit brought by Missouri and a dozen other states challenging the use of preliminary estimates on greenhouse gas costs, during oral argument on Thursday.

The states want the United States Court of Appeals for the Eighth Circuit to reinvigorate their lawsuit after a judge ruled they lacked standing to sue and their claims were not ripe for court.

Dean John Sauer of the Missouri Attorney General’s Office told the panel that the task force that created the binding estimates has no legislative authority. States were also denied the opportunity to comment on the estimates, Sauer argued.

The Missouri attorney was rebuffed by Judge James B. Loken, who noted that half of his time in the White House was spent on an interagency task force. The judge served there under President Richard Nixon from 1970 to 1972.

Sauer said that none of the executive branch working groups wield the same kind of authority as the group that created the greenhouse gas estimates. But the attorney could not point to an operational action the group took, Loken said.

Sauer was “hypothesizing the impact” of an agency decision based on the estimates, according to Loken.

Minnesota District Judge Kate M. Menendez, sitting by designation, asked the attorney how the estimates were used in the regulatory action. He responded with the federal government issuing emissions standards for light-duty vehicles in December.

Deadline Pressure

The EPA said its analysis of the social costs of greenhouse gases was not material to its final rule, Justice Department attorney Thomas Pulham countered. The Environmental Protection Agency said it would always adopt the final rule regardless of the methods used to quantify the benefits of greenhouse gas reductions, according to Pulham.

The fundamental problem with this challenge is that the preliminary estimates alone “do nothing for the complaining states,” the DOJ attorney said.

Menendez noted that the executive order that created the task force stated that the agencies will “use” the estimates. But agencies sometimes perform cost-benefit analyzes that won’t be relevant to the final decision they make, Pulham said.

Judge Jane Kelly was also on the panel.

Analysts at ClearView Energy Partners LLC said Thursday they expect states to turn to the U.S. Supreme Court if the Eighth Circuit rejects their appeal. But the case may become moot even if the High Court agrees to hear the case, they said, as the task force may have missed its deadline to come up with updated estimates.

“However, we do not rule out that new values ​​may be proposed – if not finalized – at a time when a motion to review an 8th Circuit ruling on interim values ​​is ripe for court consideration, analysts said.

Other states joining the Missouri Challenge include Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee and Utah.

The case is Missouri v. Biden, 8th Cir., No. 21-03013, pleadings of 06/16/22.

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