Louisiana v. JOSEPH R. BIDEN, JR., in his official capacity as President of the United States; et al.,

COMPLAINT

The States of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota,
Texas, West Virginia, and Wyoming bring this civil action against the above-listed Defendants for
declaratory and injunctive relief and allege as follows:

INTRODUCTION

1. This case arises from President Biden’s recent unilateral executive action targeting
what even staunch environmentalists acknowledge is the “most important number you’ve never heard
of.” Frank Ackerman & Elizabeth A. Stanton, The Social Cost of Carbon: A Report for the Economics for
Equity and Environment Network 2 (Apr. 1, 2010), https://bit.ly/3mZJWOQ. That number—or, more
accurately, that set of numbers—are estimates of the monetized value of social costs attendant to
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emissions of three greenhouses gases: carbon dioxide, methane, and nitrous oxide. Those estimates
have come to be known as the Social Cost of Carbon (SCC), the Social Cost of Methane (SCM), and
the Social Cost of Nitrous Oxide (SCN). This Complaint refers to estimates of the monetized value
for emissions of all three greenhouse gases collectively as “SC-GHG Estimates.”
2. Why are those estimates so important? Two reasons. First, those gases are ubiquitous.
Carbon dioxide, methane, and nitrous oxide 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. Consider each gas briefly in turn.
3. According to the Environmental Protection Agency, “[c]arbon dioxide enters the
atmosphere through burning fossil fuels (coal, natural gas, and oil), solid waste, trees and other
biological materials, and also as a result of certain chemical reactions (e.g., manufacture of cement).
Carbon dioxide is removed from the atmosphere (or ‘sequestered’) when it is absorbed by plants as
part of the biological carbon cycle.” EPA, Overview of Greenhouse Gases, at https://bit.ly/3gmlA0p.
Carbon dioxide is also emitted when humans and other respiratory organisms breathe. Cf. Massachusetts
v. E.P.A., 549 U.S. 497, 558 n.2 (2007) (“It follows that everything airborne, from Frisbees to
flatulence, qualifies as an ‘air pollutant.’”) (Scalia, J., dissenting).
4. EPA says that “[m]ethane is emitted during the production and transport of coal,
natural gas, and oil. Methane emissions also result from livestock and other agricultural practices, land
use and by the decay of organic waste in municipal solid waste landfills.” Overview of Greenhouse Gases,
supra. According to EPA, about 27 percent of methane emissions come from “enteric fermentation,”
i.e., livestock manure and flatulence. About 30 percent of methane emissions come from “natural gas
and petroleum systems.” EPA, Methane Emissions, at https://bit.ly/3mYJRLr. Methane is the principal
component of natural gas.
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5. And EPA says that “[n]itrous oxide is emitted during agricultural, land use, industrial
activities, combustion of fossil fuels and solid waste, as well as during treatment of wastewater.”
Overview of Greenhouse Gases, supra. According to EPA, about 75 percent of nitrous oxide emissions
come from “agricultural soil management activities, such as application of synthetic and organic
fertilizers and other cropping practices, the management of manure, or burning of agricultural
residues”—in other words, fertilizing crops. EPA, Nitrous Oxide Emissions, at https://bit.ly/3uZNIdW.
6. The second reason those estimates are so important: President Biden recently signed
Executive Order 13990, which requires his agencies to use the SC-GHG Estimates when conducting
a cost/benefit analysis for every regulatory action—and, vaguely, “other relevant agency actions.” See
EO 13990, §5(b)(ii) (“The Working Group shall…publish an interim SCC, SCN, and SCM…, which
agencies shall use when monetizing the value of changes in greenhouse gas emissions resulting from
regulations and other relevant agency actions until final values are published”) (emphases added). Because
those gases are ubiquitous, the SC-GHG Estimates are potentially relevant to the cost/benefit analysis
for every federal rulemaking and a host of “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. 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 SCGHG Estimates are the most expansive, and potentially most expensive, federal regulatory initiative
in history.
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7. Despite their sweeping nature and pervasive effects, the SC-GHG Estimates have
never been subject to a proper notice-and-comment process. The federal government’s first stab at
crafting SC-GHG estimates occurred during the Obama Administration. Those efforts did not follow
notice-and-comment procedures that the Administrative Procedure Act requires. Worse yet, those
estimates flowed from economic assumptions and methods that broke from statutory and bipartisan
Executive Branch policy requiring cost/benefit analysis to (1) focus on domestic (rather than global)
effects, and (2) use accepted discount rates for economic forecasts. The Obama Administration’s
estimates flouted both requirements.
8. Section 5 of President Biden’s EO 13990 picks up right where the Obama
Administration left off. His Order purports to establish an Interagency Working Group on the Social
Cost of Greenhouse Gases (IWG or Working Group) that, as directed by the Order, issued SC-GHG
Estimates within 30 days of the Order. But those Biden SC-GHG Estimates are little more than the
Obama Administration’s estimates adjusted for inflation. That means the Biden SC-GHG Estimates
inherited the same host of procedural and substantive flaws that infected the Obama Administration’s
estimates.
9. In short, Section 5 of EO 13990 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. 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.