Will the Supreme Court Consider the Social Cost of Carbon?

An interagency work group had created estimates of costs of greenhouse gases emissions that the federal government could use to determine the cost of these emissions. A Louisiana federal district court prohibited the federal government from using or considering those estimates. This opinion, which was a little confusing, was quickly stayed by a Fifth Circuit panel.

Louisiana and other states involved in the first suit were unhappy with the decision to stay the proceedings. They filed a petition for reconsideration en banc. This petition was rejected today by a quick order which stated that no member of panel and no judge in active duty requested that the court be polled for rehearing. This means that not one of the Fifth Circuit judges thought this question was worthy of further review.

Louisiana Attorney General Jeff Landry declared that he would file an application for certiorari, despite the recent order. Because the administrative questions raised in the underlying case were straightforward and not controversial, they would not be certifiable. Universal challenges to the agency’s consideration of the Social Cost of Carbon is premature. Federal courts are not able to hear the case unless the agency relies on such estimates in a specific, separate action that results in a justiciable harm.

There is one problem: there is another case involving the Biden Administration’s Social Cost of Carbon that is pending before the U.S. Court of Appeals. The Supreme Court might review such cases if the Eighth Circuit makes a different decision about whether they are viable.