The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases. The Court did not leave much doubt that the administration will prevail on the merits.
Issuance of a stay is based on criteria very similar to those regarding entry of an injunction. The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted. The Court found that both factors favor the stay request. It’s discussion regarding the likelihood of success was particularly telling:
The Government Defendants are likely to succeed on the merits because the Plaintiff States lack standing.
Note that the Court did not say that it appears that the states challenging the Interim Estimates lack standing. Nope. They lack standing. Plain and simple. And I tend to be skeptical of arguments about standing, because I think that standing is too often used as an excuse by a court that doesn’t want to hear a case. Here, however, it’s pretty darn clear that the states have failed to establish standing. As the Court noted:
The Plaintiff States’ claimed injury is “increased regulatory burdens” that may result from the consideration of SC-GHG, and the Interim Estimates specifically. This injury, however, hardly meets the standards for Article III standing because it is, at this point, merely hypothetical.
The Interim Estimates on their own do nothing to the Plaintiff States. So we discern no injury that would satisfy Article III at this stage.
Of course, this is not the end of the battle over the social cost of greenhouse gases. The Government will promulgate a new estimate sometime in 2022 (it’s already overdue). And the first time a government agency makes a specific regulatory decision based on that estimate, we’ll be back in court on the merits. That’s when the real fun will begin.