Key Biden Climate Pollution Metric Is Safe–For Now

CLIMATEWIRE | The Supreme Court on Tuesday declined to take up a fight by Republican-led states over the federal government’s method of estimating the costs of climate change, in a win for President Joe Biden’s push to address rising emissions.

In a short, unexplained order, the justices rejected a challenge led by Missouri Attorney General Andrew Bailey (R) to the Biden administration’s use of interim formulas that calculate the societal costs of greenhouse gas emissions.

In a statement, Bailey vowed to “continue to combat government overreach at every turn.”

Missouri, he said, “was the first state to challenge the Biden administration’s flawed social cost of greenhouse gases model that seeks to cripple American businesses in the name of a radical climate agenda.”

Energy analysts, too, predicted the fight may not be over as federal agencies rely on the metric to back new regulations.

Federal agencies use the social cost metric to assess the hidden financial impact of rising levels of planet-warming emissions when drafting regulations and evaluating major projects. For carbon, Biden officials have set the price at about $51 per metric ton, up from about $1 during the Trump administration. The Biden-era figure reflects the price set by the Obama administration, adjusted for inflation.

The court’s decision to reject Missouri v. Biden follows the justices’ denial last year of an emergency request led by Louisiana Attorney General Jeff Landry (R) to block the Biden administration from using its updated social cost estimates.

Both of the challenges from Louisiana and Missouri faltered in federal appeals courts, where three-judge panels ruled the red states should have challenged agencies’ use of the social cost metric in rulemaking — rather than oppose the estimates themselves.

Bailey and other state attorneys general made the case to the justices that Biden overstepped his authority by imposing interim values as an interagency working group finalizes updated estimates.

Solicitor General Elizabeth Prelogar has maintained that Missouri and other states cannot show they have been harmed by the application of the climate metric in agency analyses.

The Department of Justice declined comment Tuesday on the court’s decision.

The court’s decision does not prevent the states or other parties from challenging specific agency actions and rulemaking that relies on the interim estimates, the research firm ClearView Energy Partners said in a note to clients.

“We expect the fight over SC-GHGs to return to the courts in the future as agencies rely on them to justify regulations and project permitting decisions,” ClearView analysts wrote.

The decision suggests the high court agreed with the appeals court that states must show “concrete injury” from the interim values, ClearView wrote, adding that the 8th U.S. Circuit Court of Appeals found that the states failed to establish standing due to the lack of a “plausible injury” that could be traced to the interim values.

The Supreme Court’s decision comes as an interagency working group is in the midst of finalizing new values for the social cost of greenhouse gases and as the Biden administration is rethinking the scope of how the metric has been applied.

In September, the White House announced it was considering using the metric in regulatory activities such as annual budgets, permitting decisions and foreign assistance programs.

The White House also said last month it was considering expanding the use of metric beyond regulatory and project analysis, to also help calculate penalties for violations of regulations.

EPA has separately proposed an updated value for carbon of about $190 per metric ton.

In its note, ClearView said it does not expect final SC-GHG estimates to appear until after EPA’s peer review of its estimates.

The Supreme Court also rejected a petition from Minnesota auto dealers who had asked the court to stop their state from modeling the state of California’s strict vehicle emissions standards.

The Minnesota Automobile Dealers Association had argued that the North Star State’s air doesn’t meet the criteria to qualify for the tough pollution standards that California has adopted.

The group sued the Minnesota government, claiming that Gov. Tim Walz (D) — who adopted the standards as part of his climate agenda — had violated the state constitution by improperly delegating legislative authority by adopting emissions standards written by California regulators.

The Minnesota Court of Appeals in January rejected the auto dealers’ argument, finding that the emissions plan did not violate the state constitution’s “non-delegation doctrine” because any major change to the California emissions standards would require the Minnesota Pollution Control Agency to initiate a new rulemaking process.

The Minnesota-based Upper Midwest Law Center, which represents the dealers, had pitched the case to the Supreme Court as the “ideal vehicle” for the justices to decide whether the Clean Air Act waiver that allows states to adopt California’s standards applies to states that meet federal air pollution standards.

The Supreme Court also declined a request from former coal magnate Don Blankenship, who alleges that media outlets like MSNBC defamed him by referring to him as a “felon.”

Following the 2010 explosion of the Upper Big Branch coal mine in West Virginia that killed 29 workers, Blankenship, the former CEO of Massey Energy, spent a year in prison after he was convicted of a misdemeanor charge of conspiring to violate safety rules. Blankenship contended that news outlets erroneously called him a “felon” during their coverage of his unsuccessful 2018 U.S. Senate campaign.

The 4th U.S. Circuit Court of Appeals found that the media organizations had not acted with “actual malice,” the legal standard for libel claims against public figures established in the 1964 case New York Times v. Sullivan. The Supreme Court’s Tuesday order allows the 4th Circuit decision to stand.

Justice Clarence Thomas voted with his colleagues to reject Blankenship’s plea but wrote a concurrence calling for the court to revisit Sullivan.

“[T]he actual-malice standard comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity,’” Thomas wrote.

The Supreme Court last year rejected a plea by Blankenship to overturn his conviction in the Upper Big Branch mine disaster.

Reporter Pamela King contributed.

This story first appeared in Greenwire.

Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2023. E&E News provides essential news for energy and environment professionals.

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