Louisiana attorney general plans to appeal Biden carbon rule to U.S. Supreme Court

Appeals judges overturned lower court order in February that halted the social cost of carbon policy.
(Photo by Drew Angerer/Getty Images)

Louisiana Attorney General Jeff Landry will appeal to the U.S. Supreme Court in a challenge to the Biden administration’s "social cost of carbon" policy after the 5th U.S. Circuit Court of Appeals this week refused to rehear the issue.

Landry requested a full rehearing of a ruling last month that reversed a preliminary injunction of Biden Executive Order 13990, which directed federal agencies to consider the social cost of carbon pollution for virtually all federal actions.

A three-judge panel with the New Orleans-based 5th U.S. Circuit Court of Appeals in March unanimously overturned the lower court order from U.S. District Judge James Cain Jr. in February that halted the social cost of carbon policy.

On Thursday, the court issued an order stating none of the court’s 17 full-time judges sought a rehearing as Landry requested, The Associated Press reports.

"We are disappointed in the 5th Circuit’s decision and we will appeal to the Supreme Court," Landry’s office wrote in a prepared statement. "Attorney General Landry will continue fighting the Biden Administration’s attempts to inject the government into the everyday lives of Americans."

Landry is leading a coalition of states in the challenge that includes Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia and Wyoming.

The case centers on Biden’s executive order to reinstate cost estimates from the Obama administration of about $51 per ton of carbon dioxide emissions to calculate impacts of federal actions on the environment. Former President Donald Trump reduced the number to about $7 per ton and based the calculation on potential domestic damages, while the higher figure used by the Biden and Obama administrations considers global damage, the AP reports.

Landry argues the executive order is "an attempt by the government to take over and tax the people based on winners and losers chosen by the government" and claims Louisiana is particularly impacted because of the state’s leadership in domestic energy production.

The 5th Circuit Court panel found in March that Cain acted "outside the authority of the federal courts" when he granted a preliminary injunction to stop the cost of carbon calculation and ordered the Biden administration "to comply with prior administrations’ policies on regulatory analysis absent a specific agency action to review," according to the AP.

The panel nullified the preliminary injunction and argued Louisiana and other states have no standing to sue because the regulatory burdens of the policy are not yet realized.

"The plaintiff states' claimed injury is 'increased regulatory burdens' that may result from the consideration of (the social cost of greenhouse gasses), and the Interim Estimates specifically," wrote Judges Leslie Southwick, a George W. Bush appointee, and James Graves Jr. and Gregg Costa, both Barack Obama appointees, according to Politico. "This injury, however, hardly meets the standards for [constitutional] standing because it is, at this point, merely hypothetical."

At least one major rule regarding emissions from heavy-duty trucks was published without the cost of carbon calculation, and another decision on oil and gas lease sales in western states was delayed by the Biden administration while the injunction was in place, according to media reports.