Appeals Court Rules in Favor of Biden Administration and Considering Climate Change When Forming Federal Policy

Workers clean oil from beaches in Gulf Shores and Orange Beach, June 2010: Glynn Wilson

By Glynn Wilson –

WASHINGTON, D.C. — The Biden Administration received a favorable ruling from an appeals court Wednesday that overruled a local Louisiana judge who had tried to ban the federal government from considering climate change due to global warming from the burning of fossil fuels when making policy decisions on such things as oil and gas drilling leases in federal waters.

The U.S. Court of Appeals for the 5th Circuit issued a stay on that order from the local district judge, who prevented the Department of the Interior and other federal agencies from considering the harm climate change causes when forming policy. President Biden had issued an executive order across all federal agencies empowering them to take into account the “social cost of carbon” in issuing rules and regulations on things like new oil and gas drilling permits in coastal waters or contracts for harvesting trees in national forests.

The ruling will allow the Biden administration to continue considering the economic cost of climate change as it writes new rules and regulations, a ruling which could help the country reach Biden’s goal of cutting greenhouse gas emissions in half by 2030.

Since major climate legislation remains stalled in Congress with no Republican support and moderate Democrats refusing to vote for it, the administration is counting on these regulations to help meet its emissions reduction targets, at least on paper.

Now the question for administration officials is whether to reconsider oil and gas drilling leases in coastal waters, especially the Gulf of Mexico. The Department of the Interior delayed a decision on new drilling, including a large proposed lease sale on more than 170,000 acres in Wyoming and 1.7 million acres in the Gulf. An Interior Department spokesperson said officials are reviewing the decision.

In the unanimous decision by a three-judge panel, they wrote that the government was likely to prevail in the case anyway since states suing to stop the policy could not show they had been harmed, so lacked standing to sue.

“The Plaintiff States’ claimed injury is ‘increased regulatory burdens’ that may result from the consideration of [the social cost of carbon],” the court wrote. The judges found the states’ concerns were “merely hypothetical.”

“The Interim Estimates on their own do nothing to the Plaintiff States,” they wrote.

Under President Barack Obama, the government estimated that each ton of carbon dioxide released into the atmosphere would cause $37 in damage to society. The Trump administration lowered that number significantly, concluding that the risks from burning fossil fuels amounted to between $1 and $7 per ton. When Biden became president, he restored the Obama-era cost calculation, adjusting it for inflation and setting it at $51.

A group of Republican-led states sued, arguing that Biden did not have the authority to change the value of climate change risks without soliciting public input. They also said that by altering the cost-benefit analysis, the president had dealt a blow to the economies of their states, particularly the extraction of oil, gas and coal.

District Judge James Cain sided with the states, writing in his order that the change would harm their “ability to purchase affordable energy.” His injunction barred the Biden administration from using the higher estimate, leaving the government with the only the lower cost figure imposed by the Trump administration.

The appeals court found that Cain went too far. The judges wrote that ordering the Biden administration to comply with Trump-era policies on regulatory analysis, absent a specific agency action, “appears outside the authority of the federal courts.” Talk about activist federal judges. Cain’s preliminary injunction ground much of the administration’s climate rulemaking process to a halt.

According to the Office of Information and Regulatory Affairs, the White House office that reviews agency rules, 38 regulations across four different agencies were identified as needing to be postponed or rewritten if the temporary injunction remained in effect. The Transportation Department said 60 of its final decisions or environmental impact analyses would be affected.

Environmentalist advocates praised Wednesday’s ruling.

“Today’s decision by the 5th Circuit sent a strong message that the rule of law cannot be short-circuited to score political victories,” Hana Vizcarra, an attorney for the environmental law firm Earthjustice, said in an email. “It puts the government back on track to address and assess climate change.”