Kansas Attorney General Derek Schmidt, on March 8, 2021, — along with 12 other states attorneys general, filed a federal lawsuit in the Eastern District of Missouri challenging his authority to “end-run” congress.
“Once again, an administration wants federal bureaucrats to do by burdensome regulation what it is unable to pass through Congress,” Schmidt said in a release. “This order would result in new regulations that would significantly burden Kansas agriculture, energy production, and manufacturing. No president has authority to impose this massive job-killing cost on our economy by executive order.”
Oil and Gas production is among the top three industries in Kansas, according to the Kansas Dept. of Commerce, and Kansas ranks as the 9th largest oil-producing state in the nation and the 14th-largest natural gas producer.
Ed Cross, president of the Kansas Independent Oil and Gas Association (KIOGA), took issue with the executive orders as well and said he was “delighted” Kansas had joined the coalition filing suit.
“Biden’s executive order 1 3990 titled ‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis’ is based on the concept of the social cost of carbon. The concept of the “social cost of carbon” is not objective or scientific,” Cross said in an email. “It is based on subjective human decisions on what to include in the model, the discount rate to apply to future costs and benefits, and how to deal with uncertainty.
“Biden’s plan allows federal agencies to pick and choose what perspective to take and which benefits and costs to count. As a result, federal agencies would likely engage in cherry-picking whereby agencies count global effects that are favorable to the Biden agenda and ignore impacts that put the Biden agenda in an unfavorable light.”
That social cost issue of the Mini-Green New Deal is what prompted the lawsuit.
The release said that President Biden is attempting to impose binding rules that federal agencies must use to calculate the ‘social costs’ of greenhouse gases when creating federal regulations. The suit alleges that the Biden administration has no statutory authority to decree the formula to be used for calculating those costs. The potential stringency of federal regulations imposed at the direction of that executive order would stifle manufacturing, harm agriculture, and cause serious damage in Kansas and across the country, the attorneys general argue.
“In practice, this enormous figure will be used to justify an equally enormous expansion of federal regulatory power that will intrude into every aspect of Americans’ lives—from their cars to their refrigerators and homes, to their grocery and electric bills,” the attorneys general wrote in the lawsuit. “It will be used to inflict untold billions or trillions of dollars of damage to the U.S. economy for decades to come. This regulatory expansion will stifle energy production, strangle America’s energy independence, suppress agriculture, destroy millions of jobs, deter innovation, and impoverish millions.”
The states argue in the lawsuit that using these interim values would invite massive expansion of the scope and reach of federal regulatory power, potentially harming the United States economy and every household in America.
“[I]f agencies follow President Biden’s directive that the agencies ‘shall’ use these Interim Estimates in their rulemakings and other regulatory activities, that use will inevitably result in highly restrictive regulatory policies in innumerable areas,” the attorneys general argue. The lawsuit argues a presidential executive order lacks statutory authority to impose these costs, the Constitution vests that sort of power in Congress and federal law prohibits this sort of executive branch action without following procedures that the administration bypassed in this case.
This Mini-Green New Deal is the first lawsuit Schmidt has filed challenging the legal basis for action by the Biden administration. During the Obama administration, Schmidt successfully challenged several federal actions, including the Waters of the United States rule, unilateral executive actions related to immigration, and illegal regulation of greenhouse gases without authorization by Congress.