State of Missouri v. Joseph R. Biden, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3013
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State of Missouri, et al.
lllllllllllllllllllllPlaintiffs - Appellants
v.
Joseph R. Biden, Jr., in his official capacity as
the President of the United States of America, et al.
lllllllllllllllllllllDefendants - Appellees
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Committee for a Constructive Tomorrow
lllllllllllllllllllllAmicus on Behalf of Appellants
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 16, 2022
Filed: October 21, 2022
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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.*
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*The Honorable Katherine M. Menendez, United States District Judge for the
District of Minnesota, sitting by designation.

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LOKEN, Circuit Judge.
Upon taking office, President Joseph Biden issued Executive Order 13990
(“E.O. 13990”), entitled “Protecting Public Health and the Environment and
Restoring Science To Tackle the Climate Crisis,” and invoking “the authority vested
in me as President by the Constitution and the laws of the United States of America.”
86 Fed. Reg. 7037 (Jan. 20, 2021). E.O. 13990 expressly revoked or suspended
numerous Executive Orders issued by his predecessor, President Donald Trump. See
id. at 7041-42. The revoked orders included Executive Order 13783 (“E.O. 13783”),
in which President Trump disbanded an Interagency Working Group on the Social
Cost of Greenhouse Gases (“IWG”) established by President Barack Obama. 82 Fed.
Reg. 16093, 16095-96 (Mar. 28, 2017). E.O. 13990 re-established the IWG with
members from multiple cabinet-level and executive branch agencies,1 directed the
IWG to publish interim and then final estimates of the social costs of greenhouse gas
emissions (hereafter, “interim SC-GHG estimates”), and required federal agencies to
use these estimates when monetizing the costs and benefits of future agency actions
and regulations. 86 Fed. Reg. at 7040-41.
The IWG published interim SC-GHG estimates in February 2021; final
estimates have not yet been published. The State of Missouri and twelve other States2
then filed this action against President Biden, the IWG, numerous federal officials,
1The IWG is co-chaired by the Chair of the Council of Economic Advisers, the
Director of the Office of Management and Budget (OMB), and the Director of the
Office of Science and Technology Policy. It includes the Secretaries of the Treasury,
the Interior, Agriculture, Commerce, Health and Human Services, Transportation, and
Energy; the Chair of the Council on Environmental Quality; the Administrator of the
Environmental Protection Agency; the Assistant to the President and National
Climate Advisor; and the Assistant to the President for Economic Policy and Director
of the National Economic Council, or their designees. 86 Fed. Reg. at 7040.
2Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio,
Oklahoma, South Carolina, Tennessee, and Utah.
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departments, and agencies. In their March 26, 2021, First Amended Complaint, the
States requested injunctive and declaratory relief, asserting four causes of action: (1)
“Violation of the Separation of Powers;” (2) “Violation of Agency Statutes;” (3)
“Procedural Violation of the APA”; and (4) “Substantive Violation of the APA.” The
States moved for a preliminary injunction prohibiting “defendants, except for the
President, from using the [interim SC-GHG estimates] as binding values in any
agency action.” The Defendants moved to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state
a claim under Rule 12(b)(6), arguing that the States lack Article III standing, and that
their challenges to the interim SC-GHG estimates are not ripe for adjudication and are
meritless. The district court3 concluded the States lack Article III standing and their
claims are not ripe for adjudication, granted Defendants’ motion to dismiss for lack
of subject matter jurisdiction, and denied Plaintiffs’ motion for a preliminary
injunction as moot. Missouri v. Biden, 558 F. Supp. 3d 754 (E.D. Mo. 2021).4
The Plaintiff States appeal, arguing they have Article III standing, their claims
are ripe for adjudication, and we should remand with directions to enter the requested
preliminary injunction. We review the issues of Article III standing and ripeness de
novo. Missouri v. Yellen, 39 F.4th 1063, 1067 (8th Cir. 2022). We conclude that the
States are requesting a federal court to grant injunctive relief that directs “the current
administration to comply with prior administrations’ policies on regulatory analysis
[without] a specific agency action to review,” a request that is “outside the authority
of the federal courts” under Article III of the Constitution. Louisiana by & through
3The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
4The district court did not reach Defendants’ contention that the States’ claims
are without merit, and neither do we. With respect to future challenges to the merits
of the SC-GHG estimates, the dismissal is without prejudice, like the Rule 12(b)(1)
dismissal in Yeransian v. B. Riley FBR, Inc., 984 F.3d 633, 636 (8th Cir. 2021).
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Landry v. Biden, No. 22-30087, 2022 WL 866282, at *3 (5th Cir. Mar. 16), appeal
to vacate denied, 142 S. Ct. 2750 (May 26, 2022). Accordingly, we affirm.
I. Background
Dating back at least to President Richard Nixon’s administration, Presidents
have instituted procedures coordinating federal agency actions, and, of particular
relevance here, requiring agencies to engage in quantified cost-benefit analyses
before imposing or adjusting regulatory burdens. Article II, Section 1 of the
Constitution vests “executive Power” in the President. It is not a shared power. The
President and his White House staff have a “basic need . . . to monitor the consistency
of executive agency regulations with Administration policy.” Subject of course to
statutory limits and directives, this need demands the creation of interagency working
groups or teams whose purposes are to advise the President on policy questions that
affect numerous agencies, and to communicate to those agencies the policies the
President adopts for his administration. See, e.g., Sierra Club v. Costle, 657 F.2d
298, 405-06 & n.524 (D.C. Cir. 1981). Thus, we reject the States’ broad contention
that the IWG’s SC-GHG estimates are invalid because the IWG possesses “no
delegation of any legislative authority” by Congress. The IWG was formed by the
President to communicate his policies to agencies in exercising their delegated
legislative authority. We may not prohibit this sensible exercise of the President’s
executive power.
The policies here at issue affect the manner in which agencies engage in
quantified cost-benefit analysis before adopting regulations or implementing agency
actions, an analysis that is now universally recognized as critical to the proper
exercise of executive power. See, e.g., Meyer v. Bush, 981 F.2d 1288, 1298 (D.C.
Cir. 1993) (President Reagan’s Task Force on Regulatory Relief); Exec. Order No.
12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993); Off. of Mgmt. & Budget (“OMB”),
Exec. Off. of the President, OMB Circular A-4, at 1, 27 (Sept. 17, 2003). As the
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history of EO 13990 makes clear, this type of analysis raises complex, controversial
issues that trigger intense political, economic, and environmental disagreement. But
absent a specific controversy that falls within the judiciary’s Article III power to
decide Cases and Controversies, these policy disagreements are for the people to
decide through their elected representatives in the legislative and executive branches
of government. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
As the focus on climate change intensified in recent decades, Executive Branch
cost-benefit analyses began incorporating the direct and indirect effects of greenhouse
gas emissions caused by agency actions. To ensure interagency consistency,
President Obama in 2010 established the first IWG to define a standard estimate for
the social cost of carbon. See IWG, Technical Support Document: Social Cost of
Carbon for Regulatory Impact Analysis Under Executive Order 12866 (Feb. 2010).
The initial estimates were revised and republished after an Administrative Procedure
Act (“APA”) notice and comment period. See IWG, Response to Comments: Social
Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 (July
2015). Estimates for methane and nitrous oxide were added in 2016.5
In E.O. 13783, President Trump disbanded the IWG and set aside its SC-GHG
estimates. E.O. 13783 allowed agencies to continue to use their own SC-GHG
estimates in a manner consistent with general processes for agency cost-benefit
analysis. See 82 Fed. Reg. at 16095-96. In E.O. 13990, President Biden established
a reconstituted IWG and directed it to publish interim and final SC-CHG estimates
“as appropriate and consistent with applicable law.” The IWG’s interim SC-GHG
estimates, published on February 26, 2021, were the same as the Obama IWG’s
estimates, adjusted for inflation. See IWG, Technical Support Document: Social Cost
5See IWG, Addendum to Technical Support Document on Social Cost of
Carbon for Regulatory Impact Analysis under Executive Order 12866: Application
of the Methodology to Estimate the Social Cost of Methane and the Social Cost of
Nitrous Oxide (Aug. 2016).
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of Carbon, Methane, and Nitrous Oxide Interim SC-GHG estimates under Executive
Order 13990 (Feb. 2021).
After this suit was filed but before the district court ruled on the parties’ cross
motions, the OMB opened a notice and comment period on the interim SC-GHG
estimates and on strategies for incorporating contemporary science and economics
research in defining the final estimates. OMB, Notice of Availability and Request for
Comment on “Technical Support Document: Social Cost of Carbon, Methane, and
Nitrous Oxide Interim SC-GHG estimates Under E.O. 13990”, 86 Fed. Reg. 24669
(May 7, 2021). In June 2021, the Office of Information and Regulatory Affairs
(“OIRA”) published a document clarifying that agencies must use the IWG’s interim
SC-GHG estimates in complying with the general cost-benefit analysis principles
adopted in Executive Order 12866 and applicable statutes. OIRA, Social Cost of
Greenhouse Gas Emissions: Frequently Asked Questions (FAQs) (June 3, 2021).
II. The Plaintiff States Lack Article III Standing
“Standing to sue is a doctrine rooted in the traditional understanding of a case
or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). It “serves to
prevent the judicial process from being used to usurp the powers of the political
branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). The
“irreducible constitutional minimum of standing” requires plaintiffs to show they “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, 578 U.S. at 338 (quotation and citations omitted). To avoid dismissal for
lack of standing, the States, like private plaintiffs, “must allege sufficient facts to
support a reasonable inference that they can satisfy the elements of standing.” Yellen,
39 F.4th at 1068 (quotation omitted). The “standing inquiry [is] especially rigorous
when reaching the merits of the dispute would force us to decide whether an action
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taken by one of the other two branches of the Federal Government was
unconstitutional.” Clapper, 568 U.S. at 408 (quotation omitted).
“To establish injury in fact, a plaintiff must show that he or she suffered an
invasion of a legally protected interest that is concrete and particularized and actual
or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 339 (quotations
omitted). The Supreme Court has “repeatedly reiterated that threatened injury must
be certainly impending to constitute injury in fact, and that allegations of possible
future injury are not sufficient.” Clapper, 568 U.S. at 409 (emphasis in original)
(cleaned up). In their First Amended Complaint, the States allege a host of economic,
sovereign, and procedural injuries.
(1) Although their principal focus is elsewhere, the States allege that direct
monetary injury will result from federal agencies’ future use of the interim SC-GHG
estimates. They argue the estimates’ emphasis on the “social benefits” of increased
restriction of greenhouse gas emissions will result in “costs to states as purchasers of
more heavily regulated goods and services,” and “loss of future tax revenues” from
more heavily regulated economic activity. Economic injury to a State from increased
proprietary costs or reduced tax revenues can certainly be sufficiently “concrete and
particularized” to give the State standing to sue, provided the threatened injury is
“certainly impending” and “fairly traceable” to the challenged conduct. Cf. Dep’t. of
Commerce v. New York, 139 S. Ct. 2551, 2565 (2019). So why do these alleged
injuries not suffice to avoid a motion to dismiss for lack of standing in this case?
The problem with this contention, as the district court explained, is that the
alleged economic injuries are “concrete” only if we “assume that at some point in the
future, one or more agencies will ‘inevitably’ issue one or more regulations that rely
in some way upon the Interim Estimates; that such agency will ‘inevitably’ disregard
any objections to the methodology by which the Interim SC-GHG estimates were
calculated; and that this yet-to-be-identified regulation will then harm Plaintiffs in a
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concrete and particularized way.” 558 F. Supp. 3d at 765. This theory of injury in
fact “does not satisfy the requirement that threatened injury must be certainly
impending” because it “relies on a highly attenuated chain of possibilities.” Clapper,
568 U.S. at 410, citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).
In Summers, the Court dismissed for lack of standing plaintiffs’ challenge to
the United States Forest Service’s exemption of certain timber sales from notice and
comment rule-making. Without injury allegations tied to a specific logging project,
the Court concluded, the mere statistical likelihood that the regulations would harm
the plaintiffs in the future was insufficient. 555 U.S. at 498. The challenged Forest
Service procedures “neither require nor forbid any action on the part of respondents.
. . . [They] govern only the conduct of Forest Service officials engaged in project
planning.” Id. at 493. Similarly here, even if E.O. 13990 makes their use mandatory,
the interim SC-GHG estimates only establish a consistent standard for one factor
federal agencies may use when conducting cost-benefit analyses they are obligated
to complete under executive branch regulations and statutory directives. We agree
with the district court that the “Interim SC-GHG estimates, alone, do not injure
Plaintiffs. . . . The injury that Plaintiffs fear is from hypothetical future regulation
possibly derived from these Estimates.” 558 F. Supp. 3d at 766.
The government’s brief aptly summarizes the estimates’ limited impact: “if
agencies propose future regulations, if they conduct cost-benefit analyses for those
regulations, and if they choose to monetize GHG emissions in those analyses, then the
agencies must use the Interim SC-GHG estimates.” This highly attenuated theory of
injury does not satisfy the States’ burden to show the requisite causation. “For
causation to exist, the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before
the court.” Agred Found. v. U.S. Army Corps of Engr’s, 3 F.4th 1069, 1073 (8th Cir.
2021) (quotation omitted). In these circumstances, even if the States plausibly allege
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concrete injury, they fail to show the alleged injuries are caused by the interim SC-
GHG estimates.
(2) On appeal, the States argue the district court also erred by failing to take
into account the past and ongoing sovereign injury caused by the interim SC-GHG
estimates’ intrusion into the States’ role as regulators in cooperative federalism
programs such as those mandated by the National Environmental Policy Act (NEPA),
Clean Air Act state implementation plans, and federal highway administration
actions. They argue this injury -- “depriv[ing] the States of freedom and discretion
that they otherwise would have had in administering these programs” -- “does not
depend on the impact of a future agency action, because it immediately affects how
States participate in formulating agency actions.”
Whether and when alleged sovereign injuries can constitute the concrete and
particularized injury in fact required for Article III standing is a controversial,
unsettled question, as the Supreme Court’s 5 to 4 decision in Massachusetts v. EPA,
549 U.S. 497 (2007), makes clear. However, even if the States as sovereigns are
entitled to some undefined “special solicitude” in the standing analysis, they still must
satisfy the basic requirements of Article III standing. Yellen, 39 F.4th at 1070 n.7,
citing Massachusetts v. EPA, 549 U.S. at 521-23.
E.O. 13990 explicitly states that the interim SC-GHG estimates apply only to
federal “executive departments and agencies.” 86 Fed. Reg. at 7037. “[W]here a
causal relation between injury and challenged action depends on the decision of an
independent third party [here, future regulatory decisions of other federal agencies]
standing is not precluded but it is ordinarily substantially more difficult to establish.”
California v. Texas, 141 S. Ct. 2104, 2117 (2021) (cleaned up). Here, neither the
interim SC-GHG estimates nor EO 13990 impose obligations on the States. Even
when States are conducting cost-benefit analyses as part of their participation in
cooperative federalism programs, they are not bound to use the interim SC-GHG
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estimates. The States would prefer that their federal agency partners not use these
estimates in future program planning or decision-making. But that is not concrete
harm to the States. “No concrete harm, no standing.” Transunion, 141 S. Ct. at 2200.
(3) The States further argue the district court erred in concluding “that Article
III standing could never exist until a future agency action based on the [interim SC-
GHG estimates] is finalized.” They cite Bennett v. Spear, 520 U.S. 154 (1997), as
controlling contrary authority. In Bennett, ranchers and irrigation districts challenged
a Fish and Wildlife Service “biological opinion” issued under the Endangered Species
Act. The Supreme Court reversed the dismissal of their action for lack of standing.
Though plaintiffs’ threatened injury -- allocation of less water under the Klamath
Irrigation Project -- would be caused by a third party, the Bureau of Reclamation, the
Court held that plaintiffs met their “relatively modest” burden of alleging injury that
is “fairly traceable” to the biological opinion because that opinion “has a powerful
coercive effect on the action agency,” “alters the legal regime to which the action
agency is subject,” and has a “virtually determinative effect” on agency action that
will result in concrete and particularized harm to the plaintiffs. Id. at 169-71. The
district court distinguished Bennett because “neither EO 13990 nor the Interim SC-
GHG estimates mandate agencies issue the particular regulations that Plaintiffs fear
will harm them.” 558 F. Supp. 3d at 767. We agree.
The facts alleged here are materially different than in Bennett. The States seek
injunctive relief against all future uses of the interim SC-GHG estimates; the Court
in Bennett addressed a concrete dispute about a pending agency action affecting a
specific irrigation project. Moreover, unlike the biological opinion’s “virtually
determinative effect” on specific agency action in Bennett, the interim SC-GHG
estimates are only “one of innumerable other factors in the cost-benefit analysis
conducted by a wide range of agencies in an even wider range of regulatory contexts,
and only to the extent consistent with applicable law.” 558 F. Supp. 3d at 767. We
agree with the Fifth Circuit that these alleged future increased regulatory costs are not
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traceable to the interim SC-GHG estimates “because agencies consider a great
number of other factors in determining when, what, and how to regulate or take
agency action (and the Plaintiff States do not challenge a specific regulation or
action).” Louisiana v. Biden, 2022 WL 866282, at *2 (emphasis in original).
(4) Finally, the States argue they suffered procedural harm when the IWG
published initial estimates without APA notice and comment procedures. They assert
this injury alone gives them Article III standing, pointing to our decision in Iowa
League of Cities v. EPA, 711 F.3d 844, 870-71 (8th Cir. 2013). We reject this
contention for two independent reasons.
First, the Supreme Court has held that the “deprivation of a procedural right
without some concrete interest that is affected by the deprivation -- a procedural right
in vacuo -- is insufficient to create Article III standing.” Summers, 555 U.S. at 496.
In Iowa League of Cities, we held that we had subject matter jurisdiction to review
an APA procedural challenge to agency “guidance letters” responding to a Senator’s
inquiries because the letters were binding policy promulgations that threatened the
plaintiffs’s concrete interest “in avoiding regulatory obligations above and beyond
those that can be statutorily imposed upon them.” 711 F.3d at 871. Here, the alleged
procedural harm is untethered to any specific harm. By challenging all uses of the
interim SC-GHG estimates, rather than their use in a specific agency action, the States
are asserting only “a procedural right in vacuo.”
Second, the States assert that the IWG is an “agency” subject to APA notice
and comment requirements. But in support, they cite only Soucie v. David, 448 F.2d
1067, 1075 (D.C. Cir. 1971), a case holding that the Office of Science and
Technology, an entity within the Executive Office of the President, was an “agency”
subject to the disclosure requirements of the Freedom of Information Act (FOIA),
which is part of the APA. Congress approved this decision when it amended the
definition of “agency” in the section of the APA that imposes FOIA requirements to
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include “the Executive Office of the President.” 5 U.S.C. § 552(f)(1) (formerly
§ 552(e)); see Meyer, 981 F.2d at 1291-92. But the APA’s rule-making requirements,
5 U.S.C. § 553, apply to an “agency” as generally defined in 5 U.S.C. § 551(1) --
“each authority of the Government of the United States.” The Supreme Court has
never held that the President’s interagency working groups are § 551(1) “agencies”
and therefore their “actions” are subject to APA notice and comment requirements.
We doubt it would do so, because such a ruling would encourage constant judicial
interference with the President’s exercise of his executive power. Cf. Kissinger v.
Reporters Comm., 445 U.S. 136, 155-58 (1980). We certainly will not be the first to
make this extraordinary leap. For this reason, too, the States have failed to allege
plausible procedural injury in fact.
The States failed to allege plausible injury in fact fairly traceable to the interim
SC-GHG estimates. Thus, their complaint was properly dismissed for lack of subject
matter jurisdiction, specifically, lack of Article III standing. We need not consider
the third indispensable element of Article III standing, that it be “likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quotations omitted).
III. Conclusion
The Plaintiff States failed to plausibly allege the “irreducible constitutional
minimum” of Article III standing -- concrete and particularized actual injury in fact
that is fairly traceable to defendants’ challenged conduct, publication of the interim
SC-GHG estimates. The Plaintiff States disagree with the President’s policies
reflected in the interim SC-GHG estimates, but it is not our role to “exercise general
legal oversight of the Legislative and Executive Branches.” TransUnion, 141 S. Ct.
at 2203. When executive agencies or officials take or propose to take specific actions
based on reliance on the interim SC-GHG estimates, E.O. 13990 does not exempt
them from complying with statutory duties imposed by the APA, including providing
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opportunities for notice and comment. And if the States believe that specific agency
actions justified by the interim SC-GHG estimates inflict concrete and particularized
injury, they may challenge the actions, and the interim SC-GHG estimates
themselves, in federal court. See 5 U.S.C. § 706. But the States’ “generalized
grievance of how the current administration is considering SC-GHG. . . . fails to meet
the standards of Article III standing.” Louisiana v. Biden, 2022 WL 866282, at *2.
The judgment of the district court is affirmed.
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