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5th Circuit UPHOLDS Biden GHG Cost Metrics, denies Red State AGs [1]

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Date: 2023-04-05  

Just out on Law360 (paywall), the 5th Circuit rejected the Republican state AG claim that they are “suffering from the Biden Administration’s calculations of social cost of greenhouse gas emissions”. These estimates were to be used to develop future regulations, not being implemented at this time. It was from work of the Interagency Working Group and led to Executive Order 13990 directing agencies to consider these cost metrics in regulations they promulgate. The agencies have discretion in how they adopt the recommendations.

The rejection was based on the fact that “the states could only point to a ‘chain of hypotheticals’ to prove an injury”.

The decision was by a three judge panel and aligns with a previous 8th Circuit similar decision. The decision was written by Judge Jacques Wiener (G.W. Bush); the other judges were Stephen Higginson (B. Obama) and Cory Wilson (D. Trump). I do not know how the vote went (3-0 or 2-1?). There was a prior decision by District Judge James Cain (D. Trump) to place an injunction on the Executive Order. The 5th Circuit has removed that injunction.

The decisions does not appear to be published yet. The case is State of Louisiana v. Biden, No.22-30087.

The case could be appealed to the SCOTUS — though they rejected a prior opportunity to review the case. This is another win, at least temporarily. The 5th Circuit has, historically, been fossil fuel friendly.

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[1] Url: https://www.dailykos.com/stories/2023/4/5/2162243/-5th-Circuit-UPHOLDS-Biden-GHG-Cost-Metrics-denies-Red-State-AGs

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