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Monday, August 15, 2022

Court’s move hamstrings climate actions across the board

Dozens of federal actions dealing with everything from energy efficiency standards to funding for transit projects have been upended by a recent court ruling against the Biden administration’s climate change calculations. 

The administration said in a court filing this weekend that nearly 40 agency rules will have to be postponed or reworked after a federal court restricted its ability to measure their climate impacts.  

Earlier this month, Judge James Cain, a Trump appointee in Louisiana, preliminarily blocked the administration from using the “social cost of greenhouse gas” values it had instated to help quantify the climate benefits or consequences of federal actions.

The White House last year temporarily returned to Obama-era figures for calculating the costs of the planet-warming gases, which gave much greater value to climate damages than those used under the Trump administration. 

For the past several months, these figures had provided a uniform measure by which the federal government has accounted for the climate impacts of its actions. 

Now the government is asking for Cain’s ruling to be temporarily blocked while its appeal against it proceeds. 

“The consequences of the injunction are dramatic,” it said in a Saturday night filing. 

“Pending rulemakings in separate agencies throughout the government — none of which were actually challenged here — will now be delayed. Other agency actions may now be abandoned due to an inability to redo related environmental analyses in time to meet mandatory deadlines,” it said. 

In a court declaration, Dominic Mancini, who leads the White House’s Office of Information and Regulatory Affairs, noted that dozens of actions at the departments of Energy (DOE), Transportation (DOT) and Interior (DOI), as well as the Environmental Protection Agency (EPA) will be “postponed or reworked.”

Specifically, he said that DOE has identified about 21 impacted rules, DOT has identified nine, EPA has identified five and DOI has identified three. 

He also noted that DOT has identified about 60 environmental reviews that will be affected, while Interior has found 27.  

The filing listed a rule that Interior is working on aimed at limiting excess climate-warming methane released during oil and gas drilling on public lands. It notes that in 2020, a court tossed a Trump-era rule that weakened restrictions on methane. 

And it argued that the new ruling gives the government a conflicting set of instructions, since the new ruling barred it from considering international implications, while a prior ruling faulted the Trump administration for failing to do so. 

And Mancini’s declaration said that the ruling similarly hamstrings DOE’s ability to abide by a court-ordered deadline to issue new energy conservation standards for a certain type of housing. 

“A lot of the agencies are sort of in a ‘damned if we do, damned if we don’t’ situation, where they’re often under legal requirements to take certain actions…but this injunction is prohibiting them from sufficiently analyzing the climate impacts of those actions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at New York University’s law school. 

“It’s hard to say writ large what the government will do in these circumstances, but it certainly puts them in a bind,” Sarinsky said. 

Meanwhile, the government also noted in court that the ruling’s impacts go beyond rulemaking, including impacting grant programs, such as one that provides money for transit projects through the Federal Transit Administration.

It said that the agency uses the climate cost estimates to figure out changes in emissions, which is one of several criteria for the grant program.

Because now it can’t do so, the Biden administration said the court “has effectively frozen the advancement of multi-million dollar transit projects …while the agency figures out a plausible, and perhaps lengthy, alternative path forward.”

Meanwhile, Interior announced over the weekend that it expects delays with new oil and gas permitting and leasing because it has “assessed program components that incorporate the interim guidance on social cost of carbon analysis” that was blocked by the court. 

That outcome is somewhat ironic, since Cain’s ruling argued that the Biden administration’s greenhouse gas costs could be used to justify fewer oil and gas lease sales — shortchanging states that collect fees from drilling.

But Louisiana Solicitor General Liz Murrill, whose office led several other states in suing over the social costs measure, told The Hill that in the case of leasing, the court’s ruling “makes it easier to move forward, not harder.”

“Now they can stop taking into account something they shouldn’t’ve been taking into account to begin with,” Murrill said.

Asked whether the leasing and permitting delays could be interpreted as an unintended consequence of the challenge to the social costs, she said, “I don’t think it’s an unintended consequence, I think it’s an excuse that they’re using.” 

The Biden administration also contends that the ruling could have implications for how the U.S. conducts foreign policy, blocking it from discussing certain topics. 

“The Preliminary Injunction threatens to curtail what materials the federal government can rely upon in preparing for such meetings and has the potential to undercut the federal government’s ability to fully engage in international dialogues and to advocate for U.S. interests in discussions of climate economics and related topics,” it said. 

The judge’s decision barred the agencies from relying on the findings of a White House “Interagency Working Group” (IWG) that had decided to use the Obama-era figures in the interim while it calculated its own values to measure climate costs. 

The government argues that with this prohibition, in addition to preventing the government from considering international implications, the Louisiana judge worsened the administration’s climate accounting. 

“By mandating specific court-approved standards for government regulatory analysis and ordering a halt to the work of the IWG, the Court’s injunction will hobble the government’s efforts to develop rigorous and standardized estimates that reflect what those charged with implementing and overseeing regulatory measures determine to be the true costs of greenhouse-gas emissions,” it said. 


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