An Unprecedented Attack on Climate Science in the Courts
Editor’s Note: This article was originally published on Jan. 11, 2022. On Feb. 11, the U.S. District Court for the Western District of Louisiana granted plaintiffs’ motion for a preliminary injunction blocking federal agencies from using — or the Interagency Working Group from updating — the social cost of greenhouse gases. For the reasons discussed in this article, that decision misapplies the foundational constitutional principles of ripeness and standing, and could stifle state, federal, and international efforts to reduce climate pollution that harms the United States.
For most of the past dozen years, a federal expert working group has met periodically to assess the economic cost of greenhouse gas emissions. Its research — which has drawn heavily from the work of one Nobel laureate and been praised by another — is important science that the federal government has regularly applied to craft cost-effective policies that combat the climate crisis.
Yet in recent months, numerous state attorneys general have attempted to shut down this group and complicate the federal government’s efforts to evaluate the impacts of climate change. Their two pending lawsuits — led respectively by Louisiana’s Jeff Landry and Missouri’s Eric Schmitt — not only mount an unprecedented and dangerous attack on science, but also bungle bedrock legal principles.
The lawsuits challenge the federal interagency working group’s ongoing assessment of the social cost of carbon, which estimates the incremental cost to society of a unit of greenhouse gas emissions. Since the group released its initial valuations in 2010, those estimates have helped many federal agencies develop policies that cost-effectively reduce climate pollution. The group is currently updating its damage valuations to incorporate recent scientific advancements, but the pending state lawsuits seek to forestall both that update and the further use of the interagency group’s existing valuations. If successful, the lawsuits would undermine our understanding of climate change by stopping cutting-edge science in its tracks.
The claims underlying these lawsuits are without precedent. Typically, if an entity questions the science on which a policy is based, it challenges the policy. But the state lawsuits target the development and use of the social cost of carbon writ large without aiming at a particular policy or regulation. In effect, the lawsuits seek to mire the federal courts in the question of what scientific research the federal government may pursue. But such determinations, like most decisions about internal government operations, are normally left to executive discretion.
Asking a federal court to prohibit an entire line of research is also dangerous. While challenges to particular policies are narrow in scope, the state challenges would have broad unintended consequences. For instance, while the federal government developed the social cost of carbon for use in federal policymaking, its valuations have been instrumental to states and foreign nations in developing their own energy and transportation policies. Hindering further development of those valuations could stifle other unforeseen uses well beyond federal policymaking and hamper international efforts to reduce climate pollution that harms the United States.
The doctrines of ripeness and standing, which shield federal courts from deciding abstract questions divorced from a particular application, should prohibit the pending state challenges. The Eastern District of Missouri relied on these doctrines in dismissing Missouri’s lawsuit (its decision is now on appeal). As that court correctly recognized, the challenging states may object in the future to the use of the social cost of carbon in particular policies, but cannot prematurely challenge the valuation based on crystal-ball speculation about its future impact.
The Missouri court’s dismissal does not simply kick the can down the road, as the Honorable James D. Cain Jr., the judge hearing the Louisiana lawsuit recently suggested. This is because the purported errors that the states find in the interagency group’s methodology — even if they had merit, which they do not — are better suited to particularized assessments in individual applications, not a one-size-fits-all approach.
For instance, the challenging states argue that the interagency group has improperly focused on global rather than domestic climate damages. This claim is misguided, as accounting for global impacts serves the national interest due to reciprocity effects and international spillovers. Indeed, multiple courts support the use of global damage valuations.
But individualized assessment would still be necessary even if this claim had some merit. For one, actions taken under statutes calling for a global focus — such as the Clean Air Act or National Environmental Protection Act — clearly require global valuations. And when agencies consider compliance costs globally, as they often do in regulatory analysis, the use of global climate-damage valuations is necessary to preserve an apples-to-apples comparison. Wholesale attacks on the interagency group’s numbers overlook these nuances.
The states also claim that the interagency group overvalues impacts on future generations through its selection of discount rates. In particular, they note that agencies typically use higher discount in regulatory impact analysis, as recommended in the Circular A-4 guidance document. This argument too is groundless. For one, Circular A-4 is currently being updated by the Office of Management and Budget — a member of the interagency working group — to reflect research developments since its last update in 2003. That update is likely to result in a decrease in recommended discount rates, as evidence from the past twenty years consistently points toward lower rates. In addition, Circular A-4 already recognizes that long-term impacts like climate change merit lower discount rates. And some agencies are also required by law to consider impacts on future generations, counseling the use of lower discount rates over long time horizons. In light of climate change’s long-term effects and recent evidence on discount rates, the interagency group’s discount rates for the social cost of carbon are actually on the high end.
But once again, full-scale rejection of the interagency group’s estimates would be unwarranted even if this claim were not baseless, as Circular A-4 is inapplicable outside rulemaking. When assessing government investment, agencies apply discount rates based on current real treasury rates, which are now negative. Guidance for environmental analysis under NEPA does not specify a discount rate, and agencies rarely discount at all in this context. Thus, even if the state challengers did have legitimate legal arguments based on an inconsistency with Circular A-4 (which they do not), such arguments cannot form the basis of a categorical ruling against the social cost of carbon. The states once again wield an axe instead of a scalpel.
All told, the pending state lawsuits are based on a bold presumption: that the federal government should be prohibited from engaging in cutting-edge scientific research because it might misuse that research in the future. But forestalling scientific advancement based on such unnuanced speculation is both unwise and unprecedented, and the well-established doctrines of ripeness and standing guard against such sweeping, abstract challenges.
