United States Court of Appeals

For the Eighth Circuit

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No. 21-3013

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State of Missouri, et al.

lllllllllllllllllllllPlaintiffs - Appellants

v.

Joseph R. Biden, Jr., in his official capacity as 

the President of the United States of America, et al.

lllllllllllllllllllllDefendants - Appellees

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Committee for a Constructive Tomorrow

lllllllllllllllllllllAmicus on Behalf of Appellants

 ____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

 ____________

Submitted: June 16, 2022

Filed: October 21, 2022

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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.*

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*The Honorable Katherine M. Mendendez, United States District Judge for the

District of Minnesota, sitting by designation.
LOKEN, Circuit Judge.

Upon taking office, President Joseph Biden issued Executive Order 13990

(“E.O. 13990”), entitled “Protecting Public Health and the Environment and

Restoring Science To Tackle the Climate Crisis,” and invoking “the authority vested

in me as President by the Constitution and the laws of the United States of America.” 

86 Fed. Reg. 7037 (Jan. 20, 2021). E.O. 13990 expressly revoked or suspended

numerous Executive Orders issued by his predecessor, President Donald Trump. See

id. at 7041-42. The revoked orders included Executive Order 13783 (“E.O. 13783”),

in which President Trump disbanded an Interagency Working Group on the Social

Cost of Greenhouse Gases (“IWG”) established by President Barack Obama. 82 Fed.

Reg. 16093, 16095-96 (Mar. 28, 2017). E.O. 13990 re-established the IWG with

members from multiple cabinet-level and executive branch agencies,1 directed the

IWG to publish interim and then final estimates of the social costs of greenhouse gas

emissions (hereafter, “interim SC-GHG estimates”), and required federal agencies to

use these estimates when monetizing the costs and benefits of future agency actions

and regulations. 86 Fed. Reg. at 7040-41.

The IWG published interim SC-GHG estimates in February 2021; final

estimates have not yet been published. The State of Missouri and twelve other States2

then filed this action against President Biden, the IWG, numerous federal officials,

1The IWG is co-chaired by the Chair of the Council of Economic Advisers, the

Director of the Office of Management and Budget (OMB), and the Director of the

Office of Science and Technology Policy. It includes the Secretaries of the Treasury,

the Interior, Agriculture, Commerce, Health and Human Services, Transportation, and

Energy; the Chair of the Council on Environmental Quality; the Administrator of the

Environmental Protection Agency; the Assistant to the President and National

Climate Advisor; and the Assistant to the President for Economic Policy and Director

of the National Economic Council, or their designees. 86 Fed. Reg. at 7040. 

2Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio,

Oklahoma, South Carolina, Tennessee, and Utah.

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departments, and agencies. In their March 26, 2021, First Amended Complaint, the

States requested injunctive and declaratory relief, asserting four causes of action: (1)

“Violation of the Separation of Powers;” (2) “Violation of Agency Statutes;” (3)

“Procedural Violation of the APA”; and (4) “Substantive Violation of the APA.” The

States moved for a preliminary injunction prohibiting “defendants, except for the

President, from using the [interim SC-GHG estimates] as binding values in any

agency action.” The Defendants moved to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state

a claim under Rule 12(b)(6), arguing that the States lack Article III standing, and that

their challenges to the interim SC-GHG estimates are not ripe for adjudication and are

meritless. The district court3 concluded the States lack Article III standing and their

claims are not ripe for adjudication, granted Defendants’ motion to dismiss for lack

of subject matter jurisdiction, and denied Plaintiffs’ motion for a preliminary

injunction as moot. Missouri v. Biden, 558 F. Supp. 3d 754 (E.D. Mo. 2021).4 

The Plaintiff States appeal, arguing they have Article III standing, their claims

are ripe for adjudication, and we should remand with directions to enter the requested

preliminary injunction. We review the issues of Article III standing and ripeness de

novo. Missouri v. Yellen, 39 F.4th 1063, 1067 (8th Cir. 2022). We conclude that the

States are requesting a federal court to grant injunctive relief that directs “the current

administration to comply with prior administrations’ policies on regulatory analysis

[without] a specific agency action to review,” a request that is “outside the authority

of the federal courts” under Article III of the Constitution. Louisiana by & through

3The Honorable Audrey G. Fleissig, United States District Judge for the

Eastern District of Missouri.

4The district court did not reach Defendants’ contention that the States’ claims

are without merit, and neither do we. With respect to future challenges to the merits

of the SC-GHG estimates, the dismissal is without prejudice, like the Rule 12(b)(1)

dismissal in Yeransian v. B. Riley FBR, Inc., 984 F.3d 633, 636 (8th Cir. 2021). 

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Landry v. Biden, No. 22-30087, 2022 WL 866282, at *3 (5th Cir. Mar. 16), appeal

to vacate denied, 142 S. Ct. 2750 (May 26, 2022). Accordingly, we affirm.

I. Background

Dating back at least to President Richard Nixon’s administration, Presidents

have instituted procedures coordinating federal agency actions, and, of particular

relevance here, requiring agencies to engage in quantified cost-benefit analyses

before imposing or adjusting regulatory burdens. Article II, Section 1 of the

Constitution vests “executive Power” in the President. It is not a shared power. The

President and his White House staff have a “basic need . . . to monitor the consistency

of executive agency regulations with Administration policy.” Subject of course to

statutory limits and directives, this need demands the creation of interagency working

groups or teams whose purposes are to advise the President on policy questions that

affect numerous agencies, and to communicate to those agencies the policies the

President adopts for his administration. See, e.g., Sierra Club v. Costle, 657 F.2d

298, 405-06 & n.524 (D.C. Cir. 1981). Thus, we reject the States’ broad contention

that the IWG’s SC-GHG estimates are invalid because the IWG possesses “no

delegation of any legislative authority” by Congress. The IWG was formed by the

President to communicate his policies to agencies in exercising their delegated

legislative authority. We may not prohibit this sensible exercise of the President’s

executive power.

The policies here at issue affect the manner in which agencies engage in

quantified cost-benefit analysis before adopting regulations or implementing agency

actions, an analysis that is now universally recognized as critical to the proper

exercise of executive power. See, e.g., Meyer v. Bush, 981 F.2d 1288, 1298 (D.C.

Cir. 1993) (President Reagan’s Task Force on Regulatory Relief); Exec. Order No.

12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993); Off. of Mgmt. & Budget (“OMB”),

Exec. Off. of the President, OMB Circular A-4, at 1, 27 (Sept. 17, 2003). As the

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history of EO 13990 makes clear, this type of analysis raises complex, controversial

issues that trigger intense political, economic, and environmental disagreement. But

absent a specific controversy that falls within the judiciary’s Article III power to

decide Cases and Controversies, these policy disagreements are for the people to

decide through their elected representatives in the legislative and executive branches

of government. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). 

As the focus on climate change intensified in recent decades, Executive Branch

cost-benefit analyses began incorporating the direct and indirect effects of greenhouse

gas emissions caused by agency actions. To ensure interagency consistency,

President Obama in 2010 established the first IWG to define a standard estimate for

the social cost of carbon. See IWG, Technical Support Document: Social Cost of

Carbon for Regulatory Impact Analysis Under Executive Order 12866 (Feb. 2010). 

The initial estimates were revised and republished after an Administrative Procedure

Act (“APA”) notice and comment period. See IWG, Response to Comments: Social

Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 (July

2015). Estimates for methane and nitrous oxide were added in 2016.5

 

In E.O. 13783, President Trump disbanded the IWG and set aside its SC-GHG

estimates. E.O. 13783 allowed agencies to continue to use their own SC-GHG

estimates in a manner consistent with general processes for agency cost-benefit

analysis. See 82 Fed. Reg. at 16095-96. In E.O. 13990, President Biden established

a reconstituted IWG and directed it to publish interim and final SC-CHG estimates

“as appropriate and consistent with applicable law.” The IWG’s interim SC-GHG

estimates, published on February 26, 2021, were the same as the Obama IWG’s

estimates, adjusted for inflation. See IWG, Technical Support Document: Social Cost

5See IWG, Addendum to Technical Support Document on Social Cost of

Carbon for Regulatory Impact Analysis under Executive Order 12866: Application

of the Methodology to Estimate the Social Cost of Methane and the Social Cost of

Nitrous Oxide (Aug. 2016).

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of Carbon, Methane, and Nitrous Oxide Interim SC-GHG estimates under Executive

Order 13990 (Feb. 2021).

After this suit was filed but before the district court ruled on the parties’ cross

motions, the OMB opened a notice and comment period on the interim SC-GHG

estimates and on strategies for incorporating contemporary science and economics

research in defining the final estimates. OMB, Notice of Availability and Request for

Comment on “Technical Support Document: Social Cost of Carbon, Methane, and

Nitrous Oxide Interim SC-GHG estimates Under E.O. 13990”, 86 Fed. Reg. 24669

(May 7, 2021). In June 2021, the Office of Information and Regulatory Affairs

(“OIRA”) published a document clarifying that agencies must use the IWG’s interim

SC-GHG estimates in complying with the general cost-benefit analysis principles

adopted in Executive Order 12866 and applicable statutes. OIRA, Social Cost of

Greenhouse Gas Emissions: Frequently Asked Questions (FAQs) (June 3, 2021). 

II. The Plaintiff States Lack Article III Standing

“Standing to sue is a doctrine rooted in the traditional understanding of a case

or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). It “serves to

prevent the judicial process from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). The

“irreducible constitutional minimum of standing” requires plaintiffs to show they “(1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 

Spokeo, 578 U.S. at 338 (quotation and citations omitted). To avoid dismissal for

lack of standing, the States, like private plaintiffs, “must allege sufficient facts to

support a reasonable inference that they can satisfy the elements of standing.” Yellen,

39 F.4th at 1068 (quotation omitted). The “standing inquiry [is] especially rigorous

when reaching the merits of the dispute would force us to decide whether an action

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taken by one of the other two branches of the Federal Government was

unconstitutional.” Clapper, 568 U.S. at 408 (quotation omitted).

“To establish injury in fact, a plaintiff must show that he or she suffered an

invasion of a legally protected interest that is concrete and particularized and actual

or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 339 (quotations

omitted). The Supreme Court has “repeatedly reiterated that threatened injury must

be certainly impending to constitute injury in fact, and that allegations of possible

future injury are not sufficient.” Clapper, 568 U.S. at 409 (emphasis in original)

(cleaned up). In their First Amended Complaint, the States allege a host of economic,

sovereign, and procedural injuries. 

(1) Although their principal focus is elsewhere, the States allege that direct

monetary injury will result from federal agencies’ future use of the interim SC-GHG

estimates. They argue the estimates’ emphasis on the “social benefits” of increased

restriction of greenhouse gas emissions will result in “costs to states as purchasers of

more heavily regulated goods and services,” and “loss of future tax revenues” from

more heavily regulated economic activity. Economic injury to a State from increased

proprietary costs or reduced tax revenues can certainly be sufficiently “concrete and

particularized” to give the State standing to sue, provided the threatened injury is

“certainly impending” and “fairly traceable” to the challenged conduct. Cf. Dep’t. of

Commerce v. New York, 139 S. Ct. 2551, 2565 (2019). So why do these alleged

injuries not suffice to avoid a motion to dismiss for lack of standing in this case?

The problem with this contention, as the district court explained, is that the

alleged economic injuries are “concrete” only if we “assume that at some point in the

future, one or more agencies will ‘inevitably’ issue one or more regulations that rely

in some way upon the Interim Estimates; that such agency will ‘inevitably’ disregard

any objections to the methodology by which the Interim SC-GHG estimates were

calculated; and that this yet-to-be-identified regulation will then harm Plaintiffs in a

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concrete and particularized way.” 558 F. Supp. 3d at 765. This theory of injury in

fact “does not satisfy the requirement that threatened injury must be certainly

impending” because it “relies on a highly attenuated chain of possibilities.” Clapper,

568 U.S. at 410, citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). 

In Summers, the Court dismissed for lack of standing plaintiffs’ challenge to

the United States Forest Service’s exemption of certain timber sales from notice and

comment rule-making. Without injury allegations tied to a specific logging project,

the Court concluded, the mere statistical likelihood that the regulations would harm

the plaintiffs in the future was insufficient. 555 U.S. at 498. The challenged Forest

Service procedures “neither require nor forbid any action on the part of respondents.

. . . [They] govern only the conduct of Forest Service officials engaged in project

planning.” Id. at 493. Similarly here, even if E.O. 13990 makes their use mandatory,

the interim SC-GHG estimates only establish a consistent standard for one factor

federal agencies may use when conducting cost-benefit analyses they are obligated

to complete under executive branch regulations and statutory directives. We agree

with the district court that the “Interim SC-GHG estimates, alone, do not injure

Plaintiffs. . . . The injury that Plaintiffs fear is from hypothetical future regulation

possibly derived from these Estimates.” 558 F. Supp. 3d at 766. 

The government’s brief aptly summarizes the estimates’ limited impact: “if

agencies propose future regulations, if they conduct cost-benefit analyses for those

regulations, and if they choose to monetize GHG emissions in those analyses, then the

agencies must use the Interim SC-GHG estimates.” This highly attenuated theory of

injury does not satisfy the States’ burden to show the requisite causation. “For

causation to exist, the injury has to be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not before

the court.” Agred Found. v. U.S. Army Corps of Engr’s, 3 F.4th 1069, 1073 (8th Cir.

2021) (quotation omitted). In these circumstances, even if the States plausibly allege

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concrete injury, they fail to show the alleged injuries are caused by the interim SCGHG estimates. 

(2) On appeal, the States argue the district court also erred by failing to take

into account the past and ongoing sovereign injury caused by the interim SC-GHG

estimates’ intrusion into the States’ role as regulators in cooperative federalism

programs such as those mandated by the National Environmental Policy Act (NEPA),

Clean Air Act state implementation plans, and federal highway administration

actions. They argue this injury -- “depriv[ing] the States of freedom and discretion

that they otherwise would have had in administering these programs” -- “does not

depend on the impact of a future agency action, because it immediately affects how

States participate in formulating agency actions.” 

Whether and when alleged sovereign injuries can constitute the concrete and

particularized injury in fact required for Article III standing is a controversial,

unsettled question, as the Supreme Court’s 5 to 4 decision in Massachusetts v. EPA,

549 U.S. 497 (2007), makes clear. However, even if the States as sovereigns are

entitled to some undefined “special solicitude” in the standing analysis, they still must

satisfy the basic requirements of Article III standing. Yellen, 39 F.4th at 1070 n.7,

citing Massachusetts v. EPA, 549 U.S. at 521-23. 

E.O. 13990 explicitly states that the interim SC-GHG estimates apply only to

federal “executive departments and agencies.” 86 Fed. Reg. at 7037. “[W]here a

causal relation between injury and challenged action depends on the decision of an

independent third party [here, future regulatory decisions of other federal agencies]

standing is not precluded but it is ordinarily substantially more difficult to establish.” 

California v. Texas, 141 S. Ct. 2104, 2117 (2021) (cleaned up). Here, neither the

interim SC-GHG estimates nor EO 13990 impose obligations on the States. Even

when States are conducting cost-benefit analyses as part of their participation in

cooperative federalism programs, they are not bound to use the interim SC-GHG

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estimates. The States would prefer that their federal agency partners not use these

estimates in future program planning or decision-making. But that is not concrete

harm to the States. “No concrete harm, no standing.” Transunion, 141 S. Ct. at 2200. 

(3) The States further argue the district court erred in concluding “that Article

III standing could never exist until a future agency action based on the [interim SCGHG estimates] is finalized.” They cite Bennett v. Spear, 520 U.S. 154 (1997), as

controlling contrary authority. In Bennett, ranchers and irrigation districts challenged

a Fish and Wildlife Service “biological opinion” issued under the Endangered Species

Act. The Supreme Court reversed the dismissal of their action for lack of standing. 

Though plaintiffs’ threatened injury -- allocation of less water under the Klamath

Irrigation Project -- would be caused by a third party, the Bureau of Reclamation, the

Court held that plaintiffs met their “relatively modest” burden of alleging injury that

is “fairly traceable” to the biological opinion because that opinion “has a powerful

coercive effect on the action agency,” “alters the legal regime to which the action

agency is subject,” and has a “virtually determinative effect” on agency action that

will result in concrete and particularized harm to the plaintiffs. Id. at 169-71. The

district court distinguished Bennett because “neither EO 13990 nor the Interim SCGHG estimates mandate agencies issue the particular regulations that Plaintiffs fear

will harm them.” 558 F. Supp. 3d at 767. We agree.

The facts alleged here are materially different than in Bennett. The States seek

injunctive relief against all future uses of the interim SC-GHG estimates; the Court

in Bennett addressed a concrete dispute about a pending agency action affecting a

specific irrigation project. Moreover, unlike the biological opinion’s “virtually

determinative effect” on specific agency action in Bennett, the interim SC-GHG

estimates are only “one of innumerable other factors in the cost-benefit analysis

conducted by a wide range of agencies in an even wider range of regulatory contexts,

and only to the extent consistent with applicable law.” 558 F. Supp. 3d at 767. We

agree with the Fifth Circuit that these alleged future increased regulatory costs are not

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traceable to the interim SC-GHG estimates “because agencies consider a great

number of other factors in determining when, what, and how to regulate or take

agency action (and the Plaintiff States do not challenge a specific regulation or

action).” Louisiana v. Biden, 2022 WL 866282, at *2 (emphasis in original).

(4) Finally, the States argue they suffered procedural harm when the IWG

published initial estimates without APA notice and comment procedures. They assert

this injury alone gives them Article III standing, pointing to our decision in Iowa

League of Cities v. EPA, 711 F.3d 844, 870-71 (8th Cir. 2013). We reject this

contention for two independent reasons. 

First, the Supreme Court has held that the “deprivation of a procedural right

without some concrete interest that is affected by the deprivation -- a procedural right

in vacuo -- is insufficient to create Article III standing.” Summers, 555 U.S. at 496. 

In Iowa League of Cities, we held that we had subject matter jurisdiction to review

an APA procedural challenge to agency “guidance letters” responding to a Senator’s

inquiries because the letters were binding policy promulgations that threatened the

plaintiffs’s concrete interest “in avoiding regulatory obligations above and beyond

those that can be statutorily imposed upon them.” 711 F.3d at 871. Here, the alleged

procedural harm is untethered to any specific harm. By challenging all uses of the

interim SC-GHG estimates, rather than their use in a specific agency action, the States

are asserting only “a procedural right in vacuo.” 

Second, the States assert that the IWG is an “agency” subject to APA notice

and comment requirements. But in support, they cite only Soucie v. David, 448 F.2d

1067, 1075 (D.C. Cir. 1971), a case holding that the Office of Science and

Technology, an entity within the Executive Office of the President, was an “agency”

subject to the disclosure requirements of the Freedom of Information Act (FOIA),

which is part of the APA. Congress approved this decision when it amended the

definition of “agency” in the section of the APA that imposes FOIA requirements to

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include “the Executive Office of the President.” 5 U.S.C. § 552(f)(1) (formerly

§ 552(e)); see Meyer, 981 F.2d at 1291-92. But the APA’s rule-making requirements,

5 U.S.C. § 553, apply to an “agency” as generally defined in 5 U.S.C. § 551(1) --

“each authority of the Government of the United States.” The Supreme Court has

never held that the President’s interagency working groups are § 551(1) “agencies”

and therefore their “actions” are subject to APA notice and comment requirements. 

We doubt it would do so, because such a ruling would encourage constant judicial

interference with the President’s exercise of his executive power. Cf. Kissinger v.

Reporters Comm., 445 U.S. 136, 155-58 (1980). We certainly will not be the first to

make this extraordinary leap. For this reason, too, the States have failed to allege

plausible procedural injury in fact.

The States failed to allege plausible injury in fact fairly traceable to the interim

SC-GHG estimates. Thus, their complaint was properly dismissed for lack of subject

matter jurisdiction, specifically, lack of Article III standing. We need not consider

the third indispensable element of Article III standing, that it be “likely, as opposed

to merely speculative, that the injury will be redressed by a favorable decision.” 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quotations omitted).

III. Conclusion

The Plaintiff States failed to plausibly allege the “irreducible constitutional

minimum” of Article III standing -- concrete and particularized actual injury in fact

that is fairly traceable to defendants’ challenged conduct, publication of the interim

SC-GHG estimates. The Plaintiff States disagree with the President’s policies

reflected in the interim SC-GHG estimates, but it is not our role to “exercise general

legal oversight of the Legislative and Executive Branches.” TransUnion, 141 S. Ct.

at 2203. When executive agencies or officials take or propose to take specific actions

based on reliance on the interim SC-GHG estimates, E.O. 13990 does not exempt

them from complying with statutory duties imposed by the APA, including providing

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opportunities for notice and comment. And if the States believe that specific agency

actions justified by the interim SC-GHG estimates inflict concrete and particularized

injury, they may challenge the actions, and the interim SC-GHG estimates

themselves, in federal court. See 5 U.S.C. § 706. But the States’ “generalized

grievance of how the current administration is considering SC-GHG. . . . fails to meet

the standards of Article III standing.” Louisiana v. Biden, 2022 WL 866282, at *2.

The judgment of the district court is affirmed.

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