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GOP AGs Sue to Block Biden's Stealth Effort to Enshrine Climate Alarmism Into Federal Rulemaking

AP Photo/Andrew Harnik

Last week, ten Republican attorneys general sued to block President Joe Biden’s executive order resurrecting former President Barack Obama’s attempt to insert climate alarmism into the federal government’s cost-benefit analysis. Since federal agencies are required to calculate the cost and benefit of regulations, Obama ordered a working group to calculate the “social cost of carbon” and shoehorn a climate alarmist perspective into the heart of the bureaucratic state.

“This ‘social cost’ overreach revives an Obama-era scheme that unnecessarily forces the monetary cost of a global issue on American governments, businesses and families,” Attorney General Jeff Landry (R-La.) said in a statement on the lawsuit, filed on April 22, 2021.

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Attorneys general for the states of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, South Dakota, Texas, West Virginia, and Wyoming sued Biden and various officials in his administration, claiming that the social cost of carbon (SCC) rule violated the Administrative Procedure Act (APA).

The Biden rule involves the social cost of carbon dioxide, the social cost of methane (SCM), and the social cost of nitrous oxide (SCN). These analyses together form the social cost of greenhouse gases (SC-GHG). As the lawsuit notes, “those gases are ubiquitous; … [they] are by-products of activities that make life in America what it is today, including energy production, agricultural production, industrial production, transportation, construction, and waste disposal. They are among the most common and prevalent by-products of human economic activity.”

The “social cost” estimates would affect the cost/benefit analysis for federal rulemaking and “other relevant agency actions” (including leasing and permitting) “covering topics as diverse as vending machines, dishwashers, dehumidifiers, microwave ovens, residential water heaters, residential refrigerators and freezers, fluorescent lamps, residential clothes dryers, room air conditioners, residential furnaces, residential air conditioners, and battery chargers, just to name a few.”

“In other words, federal agencies must now use the SC-GHG Estimates to calculate regulatory costs and benefits for virtually everything that States and their citizens encounter every day,” the lawsuit argues. “That means federal agencies will use the SC-GHG Estimates to assign massive— even existential—costs to every regulatory action and ‘other relevant action,’ thereby fundamentally transforming the way States conduct business and Americans live.”

“It’s no exaggeration to say the SC- GHG Estimates are the most expansive, and potentially most expensive, federal regulatory initiative in history,” the lawsuit argues.

Despite the pivotal importance of these SC-GHG estimates, the regulatory move has “never been subject to a proper notice-and-comment process.” Even under the Obama administration, the efforts did not follow the notice-and-comment procedures that the APA requires. The estimates also flowed from economic assumptions and methods that allegedly broke from statutory and bipartisan Executive Branch policy requiring cost/benefit analysis to focus on domestic — not global — effects and to use accepted discount rates for economic forecasts.

The Biden order echoes the Obama move.

The lawsuit argues that this social cost of carbon initiative “will remake our federalism balance of power, American life, and the American economy by directing all federal agencies to employ in all their ‘decisionmaking,’ including rulemaking, a numeric value for the costs of greenhouse gas emissions that will ensure the most pervasive regulation in American history.”

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“The Founders ratified a written Constitution, and Congress enacted the Administrative Procedure Act, to prevent precisely this kind of unilateral and arbitrary attack on State sovereignty and individual liberty. Section 5 of Executive Order 13990 and any regulatory action incorporating the Biden SC-GHG Estimates must be vacated and enjoined,” the lawsuit argues.

Biden is attempting to stealthily upend the American system by inserting the warped view that manmade climate change is an existential threat to our very existence into the heart of the rulemaking process. This move arguably violates the law and it threatens to undermine the energy market through sleight of hand based on false premises.