Climate Denialism and a Transparent About-Face on Presidential Power
A Rundown of the Plaintiff-Amicus Briefs in the SC-GHG Litigation
Over the past two weeks, plaintiffs and their amici have filed merits briefs in the social cost of greenhouse gases litigation in the Fifth Circuit. These briefs leave much to unpack — and much to be desired.
The lawsuit, filed by Louisiana attorney general Jeff Landry and nine other Republican state attorneys general, seeks to shut down the Interagency Working Group on the Social Cost of Greenhouse Gases and prohibit government agencies from using the best available science to weigh the economic costs of climate change.
In February, a federal judge in the Western District of Louisiana issued a preliminary injunction granting that incredibly broad relief. The decision caused the Working Group to temporarily shutter and agencies to delay some actions. Despite its serious implications, however, the opinion was extremely sloppy and poorly reasoned. It was widely derided across the political spectrum for bungling basic legal doctrines, inventing facts and even a Constitutional provision, and prioritizing petitioners’ unsupported theories over Nobel Prize-winning climate economics.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit swiftly stayed the injunction, and both the full Fifth Circuit and the Supreme Court — neither of which are considered friendly to climate regulation — have since rejected Louisiana’s pleas to interject, without a single dissenting vote.
A Cameo for Climate Denialism
Now the case continues to full merits briefing before the Fifth Circuit panel, where the plaintiff states continue swinging for the fences in their longshot case. Last week, their lawsuit received the backing of several organizations that filed amicus briefs supporting the district court’s injunction.
One such group is the CO2 Coalition — a small group of scientists who oppose the expert consensus on climate change. In its brief, the Coalition claimed that this longstanding and overwhelming scientific consensus is corrupted and wrong. The Coalition compares the worldwide scientific community to flat-earthers, presenting its members as Galileo-like figures who shine truth on orthodoxy. They’re not.
In reality, the science of global warming is recognized by virtually the entire scientific community. And over time, the international scientific consensus has tended to understate the pace of climate change — not the opposite, as the CO2 Coalition alleges.
An Opportunistic Theory of Presidential Power
The plaintiff states are also supported by three organizations that generally oppose regulations protecting the environment and public health: Citizens United, Landmark Legal, and the America First Legal Foundation (the latter of which was founded by Trump administration alumni Stephen Miller and Mark Meadows). Though these groups steer clear of the CO2 Coalition’s outlandish scientific theories, they support the plaintiff states’ core legal argument: that the Working Group’s very formation and task is unconstitutional.
Challenges to the Working Group’s authority represent a remarkable about-face for opponents of environmental and public-health regulation. In previous administrations, small-government advocates had championed presidential authority as a means of deregulation. Most notably, they cheered President Reagan’s expansion of White House oversight over regulation, which required agencies to apply cost-benefit analysis for major regulations that are reviewed by the White House’s Office of Management and Budget.
At the time, those actions were seen as a way to limit regulation — particularly environmental regulation — that industry considered too burdensome. Rather than change the substantive provisions that Congress enacted — provisions aimed at protecting human health and safety that the public broadly supports — the Reagan administration instead sought to undermine those provisions by stifling agency action. That playbook was largely repeated in subsequent Republican administrations, which often used centralized regulatory review to weaken or delay rules that would benefit the public.
But now that the shoe is on the other foot, with the president using his authority to strengthen environmental and health regulations, small-government advocates claim that such interference violates the Constitution. Ironically, these advocates point to alleged inconsistencies between the Working Group’s approach and the Circular A-4 guidance document on cost-benefit analysis as evidence that the Working Group is improper. But Circular A-4 was issued by George W. Bush’s White House and was itself an attempt by the president to influence and standardize regulatory analysis.
According to the plaintiff states and their amici, in effect, presidential authority over agency action is constitutional only when it has a deregulatory effect. But the Constitution doesn’t take sides in such a transparently partisan fashion.
In an attempt to sustain one of the most derided and poorly reasoned opinions in recent memory, opponents of climate change mitigation are now invoking discredited science and concocting opportunistic theories of presidential power. Their case limps along, though their arguments don’t have a leg to stand on.
Editor’s Note: The Institute for Policy filed an amicus brief in the Fifth Circuit supporting the Working Group’s climate-damage valuations. The case is Louisiana v. Biden, No. 22–30087 (5th Cir.).
