Paul Weiland Comments on Carbon Costs Policy Fight

Paul Weiland was prominently quoted in the Law360 story “Carbon Costs Won’t Stop Red States Policy Fight” (subscription required). The article focuses on how the Eighth and Fifth Circuit courts have rebuffed attempts by Republican Attorneys General to fight a greenhouse gas metric the Biden administration put in place.

The courts ruled that the states “failed to establish standing to challenge the administration's interim estimate of the social cost of carbon,” with the Eighth Circuit recently echoing the Fifth Circuit’s earlier findings that the states were too general regarding the administration’s treatment of greenhouse gas emissions. The courts felt that the states needed to detail specific, real-world impacts for policies to effectively be evaluated. The states maintained there was harm resulting from the process used to adopt the guidance—the group felt it was unfair that social cost estimates were published without being subjected to a formal notice and comment procedure.

Providing his thoughts on the matter, Paul commented, “States and industry will continue to look for early opportunities to challenge any policy moves on climate change because it's such a politically charged issue…They will be looking for more things like this, on the perimeter.”

He added, “The Biden administration's pledge to deploy at least 30 gigawatts of offshore wind by 2030, for example, is a shared goal from several agencies, but not a concrete regulation that can be challenged in court. Some companies, groups and states do question the wisdom of the ‘30 by 30’ plan and would like to challenge it in its entirety--but logistically, challengers are more likely to sue after the administration takes a concrete step toward meeting that shared goal.”

In their arguments, state challengers partially relied on an Eighth Circuit ruling from 2007 (Massachusetts v. EPA) which stated the Supreme Court “left unsettled the ‘controversial’ question of whether ‘sovereign injuries’ can establish the kind of concrete, particularized impact or harm required for standing in federal court to build this case.” Addressing this, Paul noted the irony of the “challengers in a social cost of carbon case trying to hang their hat on standing on the Massachusetts decision— [which was a] watershed climate change ruling that held greenhouse gases are air pollutants and that the EPA has the authority under the Clean Air Act to regulate them.”