Last Friday, Judge James Cain of the Western District of Louisiana issued a preliminary injunction on behalf of ten Republican states against the Biden administration. At issue was one of Biden’s first executive orders, E.O. 13990, which is a significant part of the administration’s climate change policy. In particular, the states objected to the order’s reintroduction of the concept called “the social cost of carbon,” an idea that had been introduced under the Obama administration and rolled back under the Trump administration.
The social cost of carbon, in short, is a figure intended to put a price on the damage caused by carbon emissions. It has long been recognized that a major obstacle to climate policy is that the benefits of pollution tend to directly profit the polluter, while the damages caused by that pollution are mostly felt by others. (For an example, we can look at my editorial from last month: the pollution caused by the Labadie Energy Center enriches Ameren Missouri, but the costs of that pollution are felt by the people and ecosystems who get coal ash leaching into their water.) By calculating the “social cost” of carbon emissions, regulators could make the cost to the polluters match the costs to society, which would then incentivize those polluters to cut their emissions.
“The social cost of carbon is the single most important number for thinking about climate change,” according to Stanford University economist Marshall Burke.
There were several technical issues at play in the lawsuit, in which the states of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and Wyoming claimed that the implementation of a social cost of carbon policy would cause “irreparable harm” to their states. Among those issues were questions of whether or not the Biden administration failed to properly use a notice-and-comment period before promulgating the new figure. But what really struck me in reading the judge’s decision was the plaintiff’s focus on how the EO was improper because it calculated the social cost of carbon on a global scale, rather than purely looking at effects within the United States.
“Specifically, Plaintiff States challenge the [social cost of carbon estimate]’s consideration of global effects as opposed to national or domestic effects,” Judge Cain’s ruling reads. “Plaintiff States assert that Congress has addressed the issue of whether agencies can consider global or domestic effects and informs the Court that Congress has emphatically articulated that agencies may only consider effects to our Nation.”
Caption: Two men pushing their cycles through a flooded street in Kampala, Uganda, in 2020. [Fiktube, Wikimedia Commons, CC 4.0]
The ruling goes on to list a number of laws cited by the states, emphasizing where those laws reference the interests of America or Americans. The National Environmental Policy Act of 1970, for example, instructs the government to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings” – emphasis on Americans.
The interpretation of the law by these states, and now by Judge Cain, is that as long as Americans get theirs, the damage we cause to the rest of the world isn’t worth consideration. I wish I could say I was surprised by this, but in honesty, this has been the historical basis of American environmental policy. “Climate inequality” is already present in current models of how climate change will unfold over the course of this century, showing how pollution caused by the Global North will do the most damage to the nations in the Global South, who produce far less pollution. That is an implicit result of the way Americans and other wealthy industrialized countries have done business for decades, but this ruling makes that not just an unfortunate consequence of our thoughtless approach to the environment, but an active commandment: thou shalt not think about anyone’s comfort but thy own.
The problem is that nothing about climate change happens in a vacuum. Even if the United States is spared the absolute worst effects of climate change, we will still be battered by some of them – and many of them will come from the damage we inflict on the Global South. As climate change makes increasingly large portions of the world uninhabitable, it will also dry up all the ways in which those countries underpin the global economy. It will also lead to refugee crises and instability whose effects will certainly be felt in America.
Even from the most cold-hearted, self-interested point of view, ignoring the effects of American climate policy on the rest of the world is a foolish idea. And indeed, that is fundamental to the entire concept of the social cost of carbon: policy-makers have to take a global perspective on the costs of pollution because it is a global problem. There is no way to measure only the “domestic impact” of carbon policy because global warming is not an isolated domestic issue. But again we return to the problem of negative externalities: it is hard to make governments and corporations stop polluting when the costs of pollution seem to be borne by other people.
Now, I cheerfully admit that I am not a lawyer, and I am not qualified to make a legal opinion on whether or not the judge’s ruling is correct and consistent with precedent. For all I know he has a closet full of Sierra Club t-shirts and he hated writing every word of this ruling. But I am a citizen of the Earth and a worshiper of nature whose children will grow up during this century of climate change, and I think I am qualified to make a moral opinion.
The laws cited by the plaintiffs and the judge all mention their intent to protect the lives and interests of American citizens. This suit and this ruling both interpret that to mean serving the interests of Americans precludes serving the needs of the rest of the world. That outlook is barbaric, and if that is the correct way to interpret the law, then the law is not worth defending.
At one point in the ruling, Judge Cain lists the claims by the plaintiffs of the “direct harm” in the implementation of the executive order. “The [social cost of carbon estimates] will directly harm Georgia’s industrial sector by increasing stationary source regulatory stringency,” for example – that is to say, the industry would have to follow regulation by paying an accurate sum for its pollution. Louisiana claims that among the harms it would face is a loss of tax revenues from the polluting industries, which would harm its ability to repair a coastline being lost at a rate of 25 square miles a year due to rising sea levels. “Louisiana’s coastline,” the ruling says, “will be threatened by directly reducing the funds necessary to maintain the state’s coastal lands.”
That is to say: how can we be expected to fix the damage caused by global warming if we aren’t allowed to keep on causing it?
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