Progressives blast judiciary over Biden climate agenda

Liberal groups and legal scholars are up in arms over a recent decision from a federal judge that they argue is hamstringing the Biden administration’s climate agenda.

The decision from Louisiana-based Judge James Cain, a Trump appointee, blocks the federal government from using a particular Obama-era metric for calculating greenhouse gasses.

The judge found that the Biden administration’s use of the metric, called the “social cost of carbon,” constituted an unfair disadvantage to the 14 Republican-led oil states that sued over the issue.

Liberal legal scholars have panned the decision, calling it highly unusual and accusing the judiciary of improperly getting involved in an agency’s internal decision-making.

“I don’t mean to be uncharitable, but it was like watching a toddler play with matches,” said Lisa Heinzerling, a Georgetown environmental law professor.

“The judge said that there was no authority [for the administration] to do this because it’s such a big question,” Heinzerling added. “It’s just almost hard to say how startling that is.”

To the conservative attorneys general who filed the case, this was a necessary slapdown of an executive overreach.

“Biden’s executive order was an attempt by the government to take over and tax the people based on winners and losers chosen by the government,” Louisiana Attorney General Jeff Landry (R) said in a statement after Cain’s decision.

But critics saw the ruling, which throws a wrench into some of the administration’s attempts to address climate change, as part of its own overreach: a judiciary — which has in recent years been stocked with conservative judges — taking unprecedented steps to control the federal government’s ability to make various decisions.

“Courts are doing truly bizarre things in the name of ‘major questions,’” Heinzerling said, referring to a conservative legal philosophy holding that on a loose set of big policy questions agencies can’t act without explicit Congressional authority. 

“It seems like it’s being taken up against particular kinds of goals. Health, safety and environmental regulation has been particularly hard hit,” Heinzerling said, pointing to the court’s recent reversal of OSHA vaccine mandates and the Biden administration’s 2021 eviction moratorium.

In last week’s ruling, liberal legal scholars say Judge Cain used the major questions idea as a springboard to control an agency’s internal decision making — an almost unprecedented move, they say, since plaintiffs usually can’t sue over internal policies until they come to light in an official rule.

“When a rule is final, that’s when you could say, ‘Well, there’s all these problems with this rule,’” said James Goodwin of the Center for Progressive Reform. 

“Maybe it doesn’t follow the Clean Air Act. Or maybe they didn’t give enough time for notice and comment or maybe they relied on this flawed number for the social cost of carbon.”

In those examples, the judiciary would be reviewing an actual, published rule. But that wasn’t the case with the Obama-era carbon metric, according to Amit Narang of left-leaning Public Citizen.

The Biden administration’s reprisal of the metric wasn’t yet a rule with bearing on the public. It was instead put forward as an internal guideline for calculating greenhouse emissions that might have been used, for example, to determine whether employees should fly to conferences or attend digitally.

There has long been partisan dispute over how extensive — and expensive — the cost of emissions are and how that should play into decision-making in the federal government.

The federal government uses the social cost of carbon metric to calculate the total estimated damage done to society by every ton of emitted carbon dioxide, nitrous oxide and methane. 

In 2013, the Obama administration — reasoning that the damage from greenhouse gas was global in scope and such emissions present a risk to future generations — set an internal social cost of carbon at $52 per ton. That spurred immediate pushback from Koch Industries and the U.S. Chamber of Commerce, among others.

The Trump administration, by contrast, knocked that internal number down to a $7 per ton — which stood until January 2021, when Biden issued an executive order directing federal agencies to come up with a new social cost of carbon.

In the meantime, Biden told agencies to go back to the Obama number — $52 per ton — while they worked on coming up with an updated metric.

In March, 14 Republican attorneys general, led by Missouri’s Eric Schmitt, asserted Biden had overstepped his authority.

“If the Executive Order stands, it will inflict hundreds of billions or trillions of dollars of damage to the U.S. economy for decades to come,” Schmitt said in a statement then.

“It will destroy jobs, stifle energy production, strangle America’s energy independence, suppress agriculture, deter innovation, and impoverish working families,” he added.

By asserting that such damages already existed, the attorneys general attempted to get around the problem of standing — whether they had any legal recourse against rules that hadn’t yet been made. 

“A judge with a shred of integrity would say, ‘Take this case away, you’re wasting my time and yours. Come back to me with a concrete case where we actually have facts to work with,’”  argued Goodwin, with the Center for Progressive Reform.

Kevin Rennert, a climate scientist and economist with the nonprofit Resource for the Future, said the Louisiana ruling is likely to be appealed, particularly since other federal district courts — like California’s Ninth Circuit — have repeatedly ruled that the government must use a rigorous social cost of carbon.

“It seems evident that there will be an appeal and … given how unusual this particular ruling is, you know, it may very well be that this ruling is overturned as part of the appeal process,” he said.

If it were to be successfully appealed, it would be in line to go to the right-leaning Fifth Circuit, which is in the middle of its own controversy over questions of state and corporate ability to impose health and safety standards.

In a blistering dissent over a recent decision knocking down United Airlines’ coronavirus vaccine mandate — ruling that it caused irreparable harm by forcing employees to change their religion —  Judge Edwin Smith, a Reagan appointee, wrote that “the Good Ship Fifth Circuit is afire.”

“If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action … I would hide my head in a bag,” Smith wrote.

Heinzerling said federal agencies are likely closely watching such decisions.

“I bet all across the federal government people are thinking, ‘Is the thing we’re working on going to be a major question now?’”

Later this month, the Supreme Court will hear oral arguments around West Virginia’s challenge of the Obama-era Clean Power Plan that Trump discarded.

Conservative plaintiffs assert — against Biden administration demurrals — that the plan is going to be the basis of a forthcoming, yet-to-be-announced rule.

“It’s just bizarre to have the court reviewing the case in which there’s nothing to review,” said Heinzerling, noting the administration asked the court to reject the upcoming case.

She added that the plaintiffs seem to be seeking a general judgment that knocks down the Environmental Protection Agency’s ability to regulate carbon emissions — even though no such rule currently exists.

Heinzerling said the cases present a challenge to agencies that are trying to tackle “questions about our biggest problems … and those are the very cases where this principle will make them think twice.”