CU/CUF Amicus Brief - Louisiana v. Biden (Biden Climate Executive Order)

Case: 22-30087 Document: 00516368322 Page: 1 Date Filed: 06/23/2022
CASE NO. 22-30087
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
THE STATE OF LOUISIANA, BY AND THROUGH ITS ATTORNEY

GENERAL, JEFF LANDRY; THE STATE OF ALABAMA, BY AND
THROUGH ITS ATTORNEY GENERAL, STEVE MARCHALL; THE
STATE OF FLORIDA, BY AND THROUGH ITS ATTORNEY GENERAL,
ASHLEY MOODY; THE STATE OF GEORGIA, BY AND THROUGH ITS
ATTORNEY GENERAL, CHRISTOPHER M. CARR; THE
COMMONWEALTH OF KENTUCKY, BY AND THROUGH ITS
ATTORNEY GENERAL, DANIEL CAMERON; THE STATE OF
MISSISSIPPI, BY AND THROUGH ITS ATTORNEY GENERAL, LYNN
FITCH; THE STATE OF SOUTH DAKOTA, BY AND THROUGH ITS
GOVERNOR, KRISTI NOEM; THE STATE OF TEXAS, BY AND
THROUGH ITS ATTORNEY GENERAL, KEN PAXTON; THE STATE OF
WEST VIRGINIA, BY AND THROUGH ITS ATTORNEY GENERAL,
PATRICK MORRISEY; THE STATE OF WYOMING, BY AND
THROUGH ITS ATTORNEY GENERAL, BRIDGET HILL,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES; CECILIA ROUSE, IN HER OFFICIAL
CAPACITY AS CHAIRWOMAN OF THE COUNCIL OF ECONOMIC
ADVISERS; SHALANDA YOUNG, IN HER OFFICIAL CAPACITY AS
ACTING DIRECTOR OF THE OFFICE OF MANAGEMENT AND
BUDGET; KEI KOIZUMI, IN HIS OFFICIAL CAPACITY AS ACTING
DIRECTOR OF THE OFFICE OF SCIENCE AND TECHNOLOGY
POLICY; JANET YELLEN, SECRETARY, U.S. DEPARTMENT OF
TREASURY; DEB HAALAND, SECRETARY, U.S. DEPARTMENT OF
THE INTERIOR; TOM VILSACK, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF AGRICULTURE GINA RAIMONDO, SECRETARY, U.S.
DEPARTMENT OF COMMERCE; XAVIER BECERRA, SECRETARY,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; PETE
BUTTIGIEG, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
TRANSPORTATION; JENNIFER GRANHOLM, SECRETARY, U.S.

DEPARTMENT OF ENERGY; BRENDA MALLORY, IN HER OFFICIAL
CAPACITY AS CHAIRWOMAN OF THE COUNCIL ON
ENVIRONMENTAL QUALITY; MICHAEL S. REGAN, IN HIS OFFICIAL
CAPACITY AS ADMINISTRATOR OF THE ENVIRONMENTAL
PROTECTION AGENCY; GINA MCCARTHY, IN HER OFFICIAL
CAPACITY AS WHITE HOUSE NATIONAL CLIMATE ADVISOR;
BRIAN DEESE, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE
NATIONAL ECONOMIC COUNCIL; JACK DANIELSON, IN HIS
OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE NATIONAL
HIGHWAY TRAFFIC SAFETY ADMINISTRATION; UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES
DEPARTMENT OF ENERGY; UNITED STATES DEPARTMENT OF
TRANSPORTATION; UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES DEPARTMENT OF INTERIOR;
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION;
INTERAGENCY WORKING GROUP ON SOCIAL COST OF
GREENHOUSE GASES,
Defendants-Appellants.
On Appeal from the United States District Court for the Western District of
Louisiana No. 2:21-cv-1074 (Hon. James D. Cain, Jr.)
BRIEF OF CITIZENS UNITED AND CITIZENS UNITED FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
SEEKING AFFIRMANCE
GARY M. LAWKOWSKI DANIEL H. JORJANI

Counsel of Record Citizens United
Va. Bar ID No. 82329 Citizens United Foundation
D.C. Bar No. 1781747 1006 Pennsylvania Avenue, S.E.
Dhillon Law Group, Inc. Washington, D.C. 20003
2121 Eisenhower Avenue, Suite 402 Telephone: 202-547-5420
Alexandria, Virginia 22314 DanielJorjani@CitziensUnited.org
Telephone: 703-965-0330
Facsimile: 415-520-6593
GLawkowski@Dhillonlaw.com
Counsel for Amici Curiae

TABLE OF CONTENTS
STATEMENT OF INTEREST ................................................................................. 1
INTRODUCTION .................................................................................................... 2
I. The Legislative Power of the United States is Vested in

Congress, Not the President .................................................................. 4
a. Constitutional Principles of Separation of Powers

Arose Out of British Common Law, Which Prohibited the
Executive from Ruling by Proclamation .................................... 5
b. The Constitution Prohibits the Executive from Exercising

Legislative Power ....................................................................... 7
II. The Interagency Working Group’s Social Cost of Greenhouse Cases
is an Exercise of Legislative Power with a Sweeping Impact on a
Significant Portion of the U.S. Economy ........................................... 12
a. Use of the Intergovernmental Working Group’s “Interim”
Social Cost of Greenhouse Gas Estimates is Not
Optional ..................................................................................12
b. The Decision to Use a Reduced Discount Rate and to
Examine Global Effects is a Political, Not Scientific,
Decision ..................................................................................14
c. The Policy Choice to Use a Lower Discount Rate
and Rely on Global Estimates of the Social Cost of
Greenhouse Gases is an Incredibly Consequential
Choice that is Properly Left to Congress ............................... 15
i
i. The Scope of Actions Impacted by Executive

Order 13,990 is Extraordinarily Broad ................... 15
ii. The Economic and Political Impact of Executive

Order 13,990 is Vast ................................................ 18
CONCLUSION ........................................................................................................25
ii
TABLE OF AUTHORITIES
Cases
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) ..............................................................................................11
Alabama Ass’n of Realtors v. Dep’t of Health and Human Servs.,
141 S. Ct. 2485 (2021) .....................................................................................2, 10
Bennett v. Spear,
520 U.S.154 (1997) ..............................................................................................24
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010)) .............................................................................................1
City of Arlington v. Fed. Commc’ns Comm’n ,
569 U.S. 290 (2013) .............................................................................................16
Dep’t of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891 (2020) .........................................................................................13
Dep’t of Transp. v. Ass’n of American R.Rs.,
575 U.S. 43 (2015) ............................................................................................4, 7
Food and Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .............................................................................................10
Gundy v. United States,
139 S. Ct. 2116 (2019) ......................................................................................9, 10
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,
448 U.S. 607 (1980) .............................................................................................11
Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016) ..........................................................................................13
Kisor v. Wilkie,
139 S. Ct. 2400 ....................................................................................................16
Lakes and Parks Alliance of Minneapolis v. Fed. Transit Admin.,
928 F.3d 759 (8th Cir. 2019) ...............................................................................23
Maine Cmty. Health Options v. United States,
140 S. Ct. 1308 (2020) .........................................................................................13
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) .............................................................................................10
Merrill, et al. v. Milligan, et al.,
Nos. 21-1086, 21-1087, 2022 WL 1432037 (U.S. May 2, 2022)) ........................1
iii
Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S. Ct. 661 (2022) .............................................................................................2
Noe v. Metro. Atlanta Rapid Transit Auth.,
644 F.2d 434 (5th Cir. 1981) ...............................................................................23
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) .............................................................................................11
Perez v. Mortgage BankersAss’n,
575 U.S. 92 (2015) .............................................................................................6, 7
Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183 (2020) ............................................................................................8
Util. Air Regulatory Group v. EPA,
573 U.S. 324 (2014) ................................................................................................2
Wayman v. Southard,
23 U.S. 1 (1825) .....................................................................................................9
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .........................................................................................9, 10
Wyoming v. United States Dep’t of the Interior,
493 F. Supp. 3d 1046 (D. Wyo. 2020)..................................................................19
Statutes, Regulations, and Constitutional Provisions
40 C.F.R. § 1501.6(a)...............................................................................................22
42 U.S.C. § 4332 ......................................................................................................16
U.S. Const. art. I, § 1..................................................................................................2
Other Authorities
3 D. Hume, The History of England from the Invasion of Julius Caesar to the
Revolution in 1688
(1983) ......................................................................................................................6
Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation of Legal
Texts (2012) ..........................................................................................................13
Bracton, De Legibus et Consuetundinibus Angliae 33 (G. Woodbine ed., S. Thorne
transl. 1968) ............................................................................................................4
iv
Brief of Appellants, Louisiana, et al. v. Biden, et al., No. 22-30087 (5th Cir. May
3, 2022) (Doc. No. 00516305933) ........................................................................14
Case of Proclamations, 12 Co. Rep. 74, 77 Eng. Rep. 1352 (K.B. 1611) ................6
Cass R. Sunstein, Arbitrariness Review (with special reference to the social cost of
carbon) 4 (2021), https://bit.ly/3rk2hZC ................................................................3
Council on Environmental Quality, Environmental Impact State Timelines (2010-
2018) (June 12, 2020), https://ceq.doe.gov/docs/nepa-
practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf ................................... 21, 22
Council on Environmental Quality, Fact Sheet: Modernizing CEQ’s NEPA
Regulations (Jul. 15, 2020), https://ceq.doe.gov/docs/laws-regulations/ceq-final-
rule-fact-sheet-2020-07-15.pdf ................................................................ 16, 17, 21
Council on Environmental Quality, Length of Environmental Impact Statements
(2013-2018) (June 12, 2020), https://ceq.doe.gov/docs/nepa-
practice/CEQ_EIS_Length_Report_2020-6-12.pdf .............................................21
Declaration of Anne E. Smith, Louisiana v. Biden, Civil Case No. 2:21-cv-01074-
JDC-KK (W.D. La. Jul. 27, 2021) (ECF No. 56) .................................................18
Executive Order 13,9990, Protecting the Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25,
2021) ................................................................................................... 12-19, 21, 22
Exhibit 1: Declaration of Dominic J. Mancini, Louisiana v. Biden,
Civil Case No. 2:21-cv-01074-JDC-KK (W.D. La. Jul. 27, 2021) (ECF No. 56)
........................................................................................................................ 17, 18
Government Accountability Office, GAO-20-254 Social Cost of Carbon:
Identifying a Federal Entity to Address the National Academies’
Recommendations Could Strengthen Regulatory Analysis(June 2020),
https://www.gao.gov/assets/gao-20-254.pdf ........................................................18
James Madison, Federalist 47 (Feb. 1, 1788),
https://avalon.law.yale.edu/18th_century/fed47.asp ..............................................8
v
John Locke, Second Treatise of Civil Government (J. Gough ed. 1947) ..................7
Kevin Kosar, How to Strengthen Congress, Nat’l Affairs (Fall 2015),
https://www.nationalaffairs.com/publications/detail/how-to-strengthen-congress.
...............................................................................................................................15
M. Vile, Constitutionalism and the Separation of Powers (2d ed. 1998) ..................4
Philip Hamburger, Law and Judicial Duty (2008).....................................................6
Philip Hamburger, Is Administrative Law Unlawful? (2014) ...............................5, 6
Government Accountability Office, GAO 14-369 National Environmental Policy
Act: Little Information Exists on NEPA Analysis (Apr. 2014)
https://www.gao.gov/assets/gao-14-369.pdf............................................................22
W. Gwyn, The Meaning of Separation of Powers (1965) .........................................7
W. Gwyn, The Meaning of the Separation of Powers (1965) ...................................4
William Blackstone 1 Commentaries 142………………………………………………...7
Rules
Fed. R. App. P. 26.1(a) ..............................................................................................1

Fed. R. App. P. 29(a)(4)(A) .......................................................................................1
Fed. R. App. P. 29(a)(4)(E)........................................................................................1
vi
STATEMENT OF INTEREST1
Citizens United and Citizens United Foundation are dedicated to restoring
government to the people through a commitment to limited government,
federalism, individual liberty, and free enterprise. Citizens United and Citizens
United Foundation regularly participate as litigants (e.g., Citizens United v. Fed.
Election Comm’n, 558 U.S. 310 (2010)) and amici in important cases in which
these fundamental principles are at stake (See, e.g., Brief of Citizens United,
Citizens United Foundation, and the Presidential Coalition as Amici Curiae in
Support of Appellants and Petitioners, Merrill, et al. v. Milligan, et al., Nos. 21-
1086, 21-1087, 2022 WL 1432037 (U.S. May 2, 2022)).
Citizens United is a nonprofit social welfare organization exempt from
federal income tax under Internal Revenue Code (“IRC”) section 501(c)(4).
Citizens United Foundation is a nonprofit educational and legal organization
exempt from federal income tax under IRC section 501(c)(3). These organizations
were established to, among other things, participate in the public policy process,
1
No party’s counsel authored this brief in whole or in part. No party’s counsel or
party contributed money that was intended to fund preparing or submitting this
brief. No person other than amicus curiae, its members, or its counsel contributed
money that was intended to fund preparing or submitting this brief. See Fed. R.
App. P. 29(a)(4)(E). There is no parent corporation or publicly held corporation
that owns 10% or more of stock of any amicus curiae described below. See Fed.
R. App. P. 26.1(a); 29(a)(4)(A). The parties have consented to the filing of this
brief.
1
including conducting research, and informing and educating the public on the
proper construction of state and federal constitutions, as well as statutes related to
the rights of citizens, and questions related to human and civil rights secured by
law.
INTRODUCTION
“The central question we face today is: Who decides?” Nat’l Fed’n of Indep.
Bus. v. Dep’t of Labor, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring).
Immediately after the preamble, the first words of Article 1 of the Constitution of
the United States are “All legislative Powers herein granted shall be vested in a
Congress of the United States . . . ” U.S. Const. art. I, § 1. Accordingly, at
minimum “[w]e expect Congress to speak clearly when authorizing an agency to
exercise powers of vast economic and political significance.” Nat’l Fed. of Indep.
Bus., 142 S. Ct. at 665 (per curiam) (quoting Alabama Ass’n of Realtors v. Dep’t of
Health and Human Servs., 141 S. Ct. 2485, 2489 (2021)); see also Util. Air
Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).
Defendant-Appellant would have this Court believe that consideration of the
social cost of greenhouse gases is nothing special. That it is just an exercise of the
President’s discretion to consider the costs and benefits of regulatory actions, no
different than asking how much it would cost to add a safety shield to a widget
machine. But the reality – and the government’s own filings in this case – belie
2
that claim. The mandatory nature of the President’s executive order has far
reaching effects on hundreds, if not thousands, of regulatory actions. The result is
to place an outcome determinative weight on the scale in matters as large as
significant regulatory actions and as small as project-specific environmental
reviews.
One of the leaders of the team that developed the “social cost of carbon” has
called it “the most important number you have never heard of.” Cass R. Sunstein,
Arbitrariness Review (with special reference to the social cost of carbon) 4 (2021),
https://bit.ly/3rk2hZC. How a social cost of carbon, or other greenhouse gases, is
calculated, and how the resulting number is used, embodies a number of
substantive policy and ethical choices about how the entire U.S. economy should
be organized. The resulting decision of whether and how to make these
considerations mandatory in all facets of environmental and regulatory review is a
major question of the sort that the Constitution properly commits to Congress.
Accordingly, the ruling of the district court should be affirmed.
I. The Legislative Power of the United States is Vested in Congress, Not

the President
The Framers of the Constitution, in their wisdom, vested the legislative
power of the United States in Congress, not the President. The purpose of this
vesting is two-fold. First, it limits the inherent risk of government overreach when
the legislative and executive power are held by the same institution, a risk the
3
Framers were all too familiar with based on the history of the British Crown.
Second, it helps to ensure that major policy questions are resolved by the branch
closest to the people, thereby ensuring democratic accountability.
a. Constitutional Principles of Separation of Powers Arose Out of

British Common Law, Which Prohibited the Executive from Ruling
by Proclamation
The structure of a federal government with three branches did not just flash
into being in 1789. “The idea has ancient roots in the concept of the ‘rule of law,’
which has been understood since Greek and Roman times to mean that a ruler must
be subject to the law in exercising his power and may not govern by will alone.”
Dep’t of Transp. v. Ass’n of American R.Rs., 575 U.S. 43, 70 (2015) (Thomas, J.,
concurring in judgment) (citing M. Vile, Constitutionalism and the Separation of
Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetundinibus Angliae 33
(G. Woodbine ed., S. Thorne transl. 1968)). “Although it was originally thought
‘that the rule of law was satisfied if a king made good laws and always acted
according to them,’ it became increasingly apparent over time that the rule of law
demanded that the operations of ‘making’ law and ‘putting it into effect’ be kept
separate.” Id. (quoting W. Gwyn, The Meaning of the Separation of Powers 35
(1965)).
Well before Presidents purported to govern with their pen and phones, there
was a question of what authority English Kings could unilaterally exercise through
4
“proclamations.” In theory, under common law, “kings could make law only in
Parliament,” where “monarchs participated as part of the legislative body” and “the
entire nation was said to present and thus capable of consenting to new laws.”
Philip Hamburger, Is Administrative Law Unlawful? 33 (2014) (“Hamburger”).
Under this theory of the law, “in his proclamations, a king could issue orders to
Crown and local officers; he could exhort his subjects to obey the law; he could
directly order nonsubjects to the extent they were within his coercion,” but he
could not engage in “extralegal modes of legislation” outside of Parliament. Id. at
33, 34.
However, alongside this common law approach arose a theory of civilian
law for absolute power of the monarch to act outside of the law, which “became
the foundation for an extralegal legislative regime.” Id. at 35. Thus, “in the
sixteenth and early seventeenth centuries, [monarchs] candidly claimed a
prerogative to legislate through their proclamations.” Id. at 33. In this context, in
1539 Parliament passed the Act of Proclamations, which gave the King’s
proclamations the force and effect of an act of Parliament. See Dep’t of Transp.,
575 U.S. at 71 (Thomas, J., concurring in judgment) (citing Hamburger at 37-38).
This broad assertion of executive authority over legislative power, even with
Parliamentary assent, was still too much for Englishmen accustomed to being free.
“Later generations came to view the Act of Proclamations as one of the most abject
5
moments in English history,” and “[n]ot surprisingly, the Act of Proclamations was
promptly repealed in 1547 – the first year of the next reign.” See Hamburger at 38.
To wit, “[r]eflecting on this period in history, David Hume would observe that,
when Parliament ‘gave to the king’s proclamation the same force as to a statute
enacted by parliament,’ it ‘made by one act a total subversion of the English
constitution.” Dep’t of Transp., 575 U.S. at 71 (Thomas, J., concurring in
judgment) (quoting 3 D. Hume, The History of England from the Invasion of Julius
Caesar to the Revolution in 1688 266 (1983)).
As a result, while monarchs occasionally tried to make legislative rules, they
received strident pushback. To wit, “[d]uring the 17th century . . . King James I
sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise
revenue without the participation of Parliament.” Perez v. Mortgage
BankersAss’n, 575 U.S. 92, 124 (2015) (Thomas, J., concurring in judgment)
(citing Philip Hamburger, Law and Judicial Duty 200-01 (2008)). “Coke famously
responded, ‘[T]he King cannot change any part of the common law, nor create any
offence by his proclamation, which was not an offence before, without
Parliament’” and declared attempts “to do just that [were] . . . ‘utterly against Law
and reason, and for that void.’” Id. at 125 (quoting Case of Proclamations, 12 Co.
Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K.B. 1611); Philip Hamburger, Law and
Judicial Duty 202 (2008)).
6
Emerging out of the English Civil War, political theorists began articulating
the separation of powers theories that would go on to shape our Constitution. See
Perez, 575 U.S. at 116 (Thomas, J., concurring in judgment). Thus, William
Blackstone “defined a tyrannical government as one in which ‘the right both of
making and of enforcing the laws, is vested in one and the same man . . . wherever
these two powers are united together, there can be no public liberty.’” Ass’n of
American R.Rs., 575 U.S. at 73 (Thomas, J., concurring in judgment) (quoting 1
Commentaries 142) (emphasis in original). And John Locke wrote that “[t]he
legislative c[ould not] transfer the power of making laws to any other hands: for it
being but a delegated power from the people, they who have it [could not] pass it
over to others.” Id. (Thomas, J., concurring in judgment) (quoting John Locke,
Second Treatise of Civil Government § 141, at 71 (J. Gough ed. 1947)). As Justice
Thomas noted, “Locke and his contemporaries also believed that requiring laws to
be made in Parliament secured the common interest,” in part because the members
of Parliament “would assemble to do the business of legislation, but then . . .
disperse to live as private citizens under the laws they had created . . . .” Id. at n.2
(Thomas, J., concurring) (citing W. Gwyn, The Meaning of Separation of Powers
75 (1965), J. Locke, Second Treatise of Civil Government §§ 143-144, at 72-73).
7
b. The Constitution Prohibits the Executive from Exercising Legislative

Power
The Framers of the Constitution drew on this experience with British history
and “recognized that, in the long term, structural protections against abuse of
power were critical to preserving liberty.” Seila Law LLC v. Consumer Fin. Prot.
Bureau, 140 S. Ct. 2183, 2203 (2020) (quoting Bowsher v. Synar¸ 478 U.S. 714,
730 (1986)); see also, e.g., James Madison, Federalist 47 (Feb. 1, 1788),
https://avalon.law.yale.edu/18th_century/fed47.asp (citing the British Constitution
as an example and comparing and contrasting the U.S. Constitution with the
British Constitution). In Federalist 47, Madison wrote “No political truth is
certainly of greater intrinsic value, or is stamped with the authority of more
enlightened patrons of liberty” than “the political maxim, that the legislative,
executive, and judiciary department ought to be separate and distinct.” Madison,
Federalist 47. While Federalist 47 acknowledges some overlapping involvement
of the branches in the functions of one another as part of an edifice of checks and
balances, such as the executive’s role in vetoing legislation or the legislature’s role
in impeachments, it emphasizes “[t]he magistrate in whom the whole executive
power resides cannot of himself make a law,” and quotes Baron de Montesquieu
for the proposition “[w]hen the legislative and executive powers are united in the
same person or body . . . there can be no liberty.” Id.
8
Consistent with Madison’s view in Federalist 47, “[w]riting for the Court,
Chief Justice Marshall distinguished between those ‘important subjects, which
must be entirely regulated by the legislature itself,’ and ‘those of less interest, in
which a general provision may be made, and power given to those who are to act . .
. to fill up the details.” Gundy v. United States, 139 S. Ct. 2116, 2136 (2019)
(Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. 1, 20(1825)).
Thus, as early as 1825, the seeds of the major question doctrine were planted in
judicial opinion.
The Court further expounded on these issues in Marshall Field & Co. v.
Clark, 143 U.S. 649 (1892), where it declared “[t]hat Congress cannot delegate
legislative power to the president is a principle universally recognized as vital to
the integrity and maintenance of the system of government ordained by the
constitution.” Id. at 692. Nevertheless, the Court held that Congress could
permissibly pass a conditional statute that granted the president discretion to make
a determination, explaining “[l]egislative power was exercised when [C]ongress
declared that the suspension should take effect upon a named contingency. What
the [P]resident was required to do was simply in execution of the act of [C]ongress.
It was not the making of law.” Id. at 693.
More recently, in Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001), the
Court stated “Article I, § 1 of the Constitution vests ‘[a]ll legislative Powers herein
9
granted . . . in a Congress of the United States.’ This text permits no delegation of
those powers.” Id. at 472 (citation omitted). At minimum, “[w]e expect Congress
to speak clearly when authorizing an agency to exercise powers of vast economic
and political significance.” Nat’l Fed. of Indep. Bus., 142 S. Ct. at 665 (citation
omitted).
“Although it is nominally a canon of statutory construction, [the Court]
appl[ies] the major question doctrine in service of the constitutional rule that
Congress may not divest itself of its legislative power by transferring that power to
an executive agency.” Gundys, 139 S. Ct. at 2141 (Gorsuch, J., dissenting); see
also Alabama Ass’n of Realtors, 141 S. Ct. at 2488-90 (2021) (finding “applicants
not only have a substantial likelihood of success on the merits – it is difficult to
imagine them losing” on a challenge to the Center for Disease Control’s eviction
moratorium); Util. Air Regulatory Group,
573 U.S. at 324 (2014) (“The power to require permits for the construction and
modification of tens of thousands, and the operation of millions, of small sources
nationwide falls comfortably within the class of authorizations that we have been
reluctant to read into ambiguous statutory text.”); Food and Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (rejecting the FDA’s
claim to have recently found authority in a longstanding statute to regulate “a
significant portion of the American economy.”); MCI Telecomms. Corp. v. Am.
10
Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress
would leave the determination of whether an industry will be entirely, or even
substantially, rate-regulated to agency discretion – and even more unlikely that it
would achieve that through such subtle device as permission to ‘modify’ rate-filing
requirements.”); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607, 645, 646 (1980) (“In the absence of a clear mandate in the Act, it is
unreasonable to assume that Congress intended to give the Secretary the
unprecedented power over American industry that would result from the
Government’s view . . . . If the Government was correct . . . the statute would make
such a ‘sweeping delegation of legislative power’ that it might be unconstitutional
under the Court’s reasoning in A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 539 [(1935)] . . . and Panama Refining Co. v. Ryan, 293 U.S. 388
[(1935)].”).
Under our constitutional structure, the legislative power rests with Congress.
While there is some play in the joints regarding the implementation of legislative
directives, at minimum this means that Congress must be involved before the
executive branch can enact sweeping changes that would have large impacts on a
significant portion of the economy, particularly when the it purports to act pursuant
to long standing, but heretofore undiscovered power. Yet, that is not what has
happened in this case. Acting on his own, the President has asserted authority to
11
implement a sweeping change in government policy that impacts significant
portions of the American economy. Under our constitutional structure, this type of
sea change can only come from Congress.
II. The Interagency Working Group’s Social Cost of Greenhouse Gases

is an Exercise of Legislative Power with a Sweeping Impact on a
Significant Portion of the U.S. Economy
Defendant-Appellee seeks to downplay the significance of Section 5 of
Executive Order 13,9990, Protecting the Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021)
(“Executive Order 13,990”). In their view, the President’s Order is nothing more
than a run-of-the-mill request of his subordinates to be mindful of the social cost of
greenhouse gases when making decisions. However, the text of the Order itself, as
well as its context in the broader operations of the Federal government, make clear
that the decision to use a reduced discount rate and, particularly, the decision to
focus on global, rather than domestic, effects is a decision to exercise powers of
vast economic and political significance that is constitutionally committed to
Congress.
a. Use of the Intergovernmental Working Group’s “Interim” Social

Cost of Greenhouse Gas Estimates is Not Optional
In defense of the Executive Order and the Intergovernmental Working
Group’s (“IWG”) actions, Defendant-Appellees have highlighted the “interim”
nature of the IWG estimate and downplayed the binding nature of the President’s
12
Order. The text of the Order itself belies these claims. Specifically, Section 5,
subpart (b)(ii)(A) makes clear “agencies shall use” the IWG’s “interim SCC, SCN,
and SCM” when “monetizing the value of changes in greenhouse gas emissions
resulting from regulations and other relevant agency actions until the final values
are published.” Executive Order 13,990 § 5(b)(ii)(A) (emphasis added).
“Mandatory words impose a duty; permissive words grant discretion. The text of
this cannon is entirely clear, and its content so obvious as to hardly be worth the
saying.” Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation of
Legal Texts 112 (2012). The “use of the word ‘shall’ indicates that these
procedures impose mandatory obligations on the agency . . . .” Dep’t of Homeland
Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1927 (2020) (Thomas,
J., concurring in part and dissenting in part); see also Maine Cmty. Health Options
v. United States, 140 S. Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which
implies discretion, the word ‘shall’ usually connotes a requirement.”) (quoting
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016)).
There is nothing truly “interim” about the IWG’s interim estimates.
Executive Order 13,990 makes clear that the President is imposing a non-
discretionary duty upon agencies to use the IWG’s interim estimates “when
monetizing the value of changes in greenhouse gas emissions resulting from
regulations and other relevant actions . . . . ” Executive Order 13,990 § 5(b)(ii)(A).
13
b. The Decision to Use a Reduced Discount Rate and to Examine Global

Effects is a Political, Not Scientific, Decision
In defense of the Intergovernmental Working Group’s (“IWG”) conclusions,
Defendant-Appellees and others suggest that this is nothing more than a scientific
exercise, akin to adding up the cost of buying and installing new safety shields at a
widget factory. See generally Brief of Appellants at 7-15, Louisiana, et al. v.
Biden, et al., No. 22-30087 (5th Cir. May 3, 2022) (Doc. No. 00516305933)
(describing the history of the creation and adoption of social cost of greenhouse
gas estimates). However, the IWG’s own report belies this claim. As the
Technical Support Document notes, “the choice of a discount rate also raises
highly contested and exceedingly difficult questions of science, economics, ethics,
and law.” Interagency Working Group on Social Cost of Greenhouse Gases,
Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide,
Interim Estimates under Executive Order 13990 17 (2021). Accordingly, while
“[t]he 3 percent value was included as consistent with estimates provided in
OMB’s Circular A-4 (OMB 2003) guidance for the consumption rate of interest,”
the Working Group decided to go even lower, to 2.5 percent, because “[u]se of this
lower value was also deemed responsive to certain judgments based on the
prescriptive or normative approach for selecting a discount rate and to related
ethical objections that have been raised about rates of 3 percent or higher.” Id.
14
In other words, the Working Group chose a lower discount rate to put its
thumb on the scale of environmental reviews based upon their own normative
beliefs regarding the relative value of continued carbon use, not as a result of the
consistent application of cost-benefit analysis. This is a policy choice, not a purely
scientific calculation. For the reasons set out below, it is an incredibly
consequential policy choice.
c. The Policy Choice to Use a Lower Discount Rate and Rely on Global
Estimates of the Social Cost of Greenhouse Gases is an Incredibly
Consequential Choice that is Properly Left to Congress
The choice to use a lower discount rate to evaluate agency actions and to
emphasize global, rather than domestic, effects is incredibly consequential.
i. The Scope of Actions Impacted by Executive Order 13,990

is Extraordinarily Broad
First, there is the sheer scope of Executive Order 13,990 and the subsequent
IWG estimate’s reach. Executive Order 13,990 applies to “all executive
departments and agencies.” Executive Order 13,990 § 1. By some estimates, there
are “nearly 120 executive agencies, which does not include the 60 other
‘independent’ entities . . . .” Kevin Kosar, How to Strengthen Congress, Nat’l
Affairs (Fall 2015), https://www.nationalaffairs.com/publications/detail/how-to-
strengthen-congress. These “[a]gencies issue 4,000 new rules per year . . . 80 to
100 [of which] have economic effects of $100 million or more.” Id. As Justice
Gorsuch observed, “in the 21st century, ‘[t]he administrative state wields vast
15
power and touches almost every aspect of daily life.’” Kisor v. Wilkie, 139 S. Ct.
2400, 2446 (Gorsuch, J., concurring in judgment) (quoting City of Arlington v.
Fed. Commc’ns Comm’n , 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting)).
The scope of federal regulations that are impacted by Executive Order
13,990 is vast. However, federal regulations are only the most visible part of the
story. By its plain terms, Executive Order 13,990 mandates the use of the IWG’s
interim estimates for “other relevant agency actions.” Executive Order 13,990 §
5(b)(ii)(A).
Under the National Environmental Policy Act (“NEPA”), agencies are
required to examine environmental considerations in their planning and decision
making. See 42 U.S.C. § 4332. This includes “a broad range of Federal agency
actions, including Federally-funded construction projects, plans to manage and
develop Federal lands, and Federal authorizations of non-Federal activities such as
licenses and permits,” including “a variety of projects and activities [such as]
construction or roads, bridges, highways, public transit, and airports, conventional
and renewable energy production and distribution, electricity transmission, water
infrastructure, and broadband deployment . . . .” Council on Environmental
Quality, Fact Sheet: Modernizing CEQ’s NEPA Regulations 3 (Jul. 15, 2020),
https://ceq.doe.gov/docs/laws-regulations/ceq-final-rule-fact-sheet-2020-07-15.pdf.
As a result, pursuant to NEPA “[a]nnually agencies issue approximately 170 final
16
[Environmental Impact Statements] and 10,000 [Environmental Assessments], and
apply categorical exclusions to approximately 100,000 actions.” Id. By its plain
terms, Executive Order 13,990 requires agencies to the IWG social cost estimates
in a significant number of these environmental reviews, which touch nearly every
facet of American life.
The vast scope of the impact of Executive Order 13,990 is confirmed in
Defendant-Appellee’s own filings. In his Declaration submitted to the District
Court, the Deputy Administrator of the Office of Information and Regulatory
Affairs (“OIRA”) of the Office of Management and Budget represented that “a
significant number of agency rules and actions would need to be postponed or
reworked as a result of the Preliminary Injunction,” including twenty-one
Department of Energy rulemakings, five Environmental Protection Agency
rulemakings, nine Department of Transportation rulemakings, and three
Department of the Interior rulemakings. Exhibit 1: Declaration of Dominic J.
Mancini at ¶¶ 17, 18, Louisiana v. Biden, Civil Case No. 2:21-cv-01074-JDC-KK
(W.D. La. Feb. 19, 2022) (ECF No. 104). The Deputy Director further averred that
sixty records of decision or environmental impact analysis prepared pursuant to
NEPA by the Department of Transportation and twenty-seven such analyses
prepared by the Department of the Interior were impacted. Id. at ¶ 18.
17
In other words, in just over one year, Executive Order 13,990 has impacted
over one hundred regulations and agency actions that are significant enough to
garner the attention of OIRA. Executive Order 13,990 purports to exercise
unilaterally vast powers of economic and political significance.
ii. The Economic and Political Impact of Executive Order

13,990 is Vast
The vast scope of Executive Order 13,990 is exceeded only by its economic
and political impact. According to the Government Accountability Office,
estimates of the social cost of one type of greenhouse gas emissions, carbon
emissions, based on domestic climate damages are “about 7 times lower” than
estimates based on global damages. Government Accountability Office, GAO-20-
254 Social Cost of Carbon: Identifying a Federal Entity to Address the National
Academies’ Recommendations Could Strengthen Regulatory Analysis(June 2020),
https://www.gao.gov/assets/gao-20-254.pdf. See also generally Declaration of
Anne E. Smith at ¶ 15, Louisiana v. Biden, Civil Case No. 2:21-cv-01074-JDC-KK
(W.D. La. Jul. 27, 2021) (ECF No. 56) (noting that “[t]he resulting SCC values
will impose large costs on American families.”). The choice to focus on global,
rather than domestic, impacts and to use a reduced discount rate has a large effect
on the resulting estimates.
In cases of regulation and other agency actions, this large effect is likely to
be outcome determinative. For example, with respect to the Bureau of Land

18
Management’s (“BLM”) 2016 Waste Prevention, Production Subject to Royalties,
and Resource Conservation rule (“Waste Prevention Rule”), BLM estimated “the
Rule would impose costs of about $114-279 million per year, or $110-275 million
per year, depending on the discount rate.” Wyoming v. United States Dep’t of the
Interior, 493 F. Supp. 3d 1046, 1069 (D. Wyo. 2020). BLM valued the “cost
savings” to industry of the rule at $20 – 157 million per year, but “valued the
environmental benefits from reduced methane emissions to be $189-247 million
per year,” based on “using estimates for the ‘social cost of methane’ on a global
scale.” Id. “Thus, the Rule only results in a net benefit if the ancillary benefits to
global climate change are factored in – without these ‘indirect’ benefits, the costs
of the Rule likely more than double the benefits every year.” Id.
The result was that a rule ostensibly directed at reducing waste was only
justifiable based on its ancillary effects. The Wyoming District Court was critical
of this result, stating “[t]he ancillary benefits of a rule cannot provide the primary
justification for the rule, particularly where those ancillary benefits fall outside of
the scope of an agency’s statutory authority.” Id. at 1074. The court went on to hit
the nail on the head identifying the problem with the approach taken by the Obama
Administration and now by Executive Order 13,990:
Otherwise, there is simply no limit on agency authority and any

colorable tie to an agency’s authority would permit the agency to act on
a problem Congress never intended the agency to solve and would
allow agencies to impose unreasonable regulations on citizens and
19
industries to achieve outcomes unrelated to the reason the regulation

was purportedly adopted.
Id.
This problem is not just limited to big ticket regulations. The government
has made much hay claiming that Plaintiff-Appellees brought their claim too soon,
and should have waited until there is a specific rule that they would like to
challenge. This argument overlooks the ways using a high end estimate of the
social cost of greenhouse gases puts a thumb on the scale early enough in the
regulatory process to prevent new projects or regulations from coming to fruition.
First, on the regulatory side, the IWG estimates put a thumb on the scale to
strangle new regulatory or deregulatory actions. In theory, an agency can adopt a
regulation where the monetized costs exceed the monetized benefits, particularly
where there are clear benefits that cannot be monetized. In practice, such a rule
will have a very difficult time passing through OIRA’s Executive Order 12,866
review process. Moreover, even if it does, a rule with heavily imbalanced costs
and benefits would be vulnerable to an arbitrary and capricious challenge under the
Administrative Procedures Act. This is particularly true for a rule that is primarily
economic, rather than moral or social, in nature. The result is that Executive Order
13,990 effectively launders moral concerns about the impact of greenhouse gases
into an economic analysis, transforming every rulemaking into a question of how
to best address climate change. This may be a good thing, or a bad thing, but in
20
either case, it is a highly significant change that should properly be determined by
Congress, not the President acting alone.
Second, Executive Order 13,990 will have large effects on the agency action
side that will be difficult, if not impossible, to litigate on a case-by-case basis. As
with regulatory cost benefit analysis, in theory, NEPA is a procedural statute that
requires agencies to take a hard look at the environmental consequences of their
actions, but does not mandate any particular substantive outcome. In practice,
however, the NEPA process itself can be highly expensive and time consuming,
and that process shapes substantive outcomes.
Agencies and project proponents have a very strong incentive to avoid
needing to complete an environmental impact statement. The average
environmental impact statement is around 600 pages long and takes four-and-a-
half years to complete, with some projects taking much longer. Council on
Environmental Quality, Fact Sheet: Modernizing CEQ’s NEPA Regulations, at 1-2
(Jul. 15, 2020), https://ceq.doe.gov/docs/laws-regulations/ceq-final-rule-fact-sheet-
2020-07-15.pdf; see also Council on Environmental Quality, Length of
Environmental Impact Statements (2013-2018), at 3 (June 12, 2020),
https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Length_Report_2020-6-12.pdf
(noting that in addition, final environmental impact statements included an average
of 1,042 pages in appendices); see also Council on Environmental Quality,
21
Environmental Impact State Timelines (2010-2018) (June 12, 2020),
https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-
12.pdf. Nearly 20 years ago, the average environmental impact statement was
estimated to cost between $225,000 and $2 million – costs that are often paid by
project proponents and have likely increased in the intervening years. See
Government Accountability Office, GAO 14-369 National Environmental Policy
Act: Little Information Exists on NEPA Analysis (Apr. 2014)
https://www.gao.gov/assets/gao-14-369.pdf (“For context, a 2003 task force report
to CEQ—the only available source of governmentwide [sic] cost estimates—
estimated that a typical EIS cost from $250,000 to $2 million.”).
Agencies and project proponents can avoid the time and expense of
preparing an environmental impact statement if they can make a “finding of no
significant impact” showing that the proposed action “will not have significant
effects.” See 40 C.F.R. § 1501.6(a). Agencies and project proponents can also get
to a finding of no significant impact based on enforceable mitigation requirements.
See id. at (c).
Executive Order 13,990 and the IWG estimate are significant in part because
of their impact on the NEPA process. Putting a thumb on the scale that increases
the size of projected environmental impacts will make it more difficult for project
proponents to obtain a finding of no significant impact (“FONSI”), pushing more
22
projects into the costly and time consuming land of environmental impact
statements (“EIS”). This will have two predictable consequences: First, project
proponents will scale back or abandon proposed projects to avoid the uncertainty
or expense of the environmental impact statement process; and second, agencies
will have increased leverage to demand ever-increasing mitigation payments from
project proponents in order to “offset” the purported environmental effects and
obtain a mitigated finding of no significant impact. Because of the leverage held
by agencies in the NEPA process, both of these consequences will be extremely
difficult, if not impossible, to redress through project specific litigation. The
decision to prepare an environmental impact statement is generally not a final
agency action, meaning that project proponents have few avenues to seek judicial
redress. See generally Lakes and Parks Alliance of Minneapolis v. Fed. Transit
Admin., 928 F.3d 759 (8th Cir. 2019) (rejecting a challenge asserting a violation of
NEPA in part because it was filed before the issuance of a record of decision at the
end of the NEPA process); see also Noe v. Metro. Atlanta Rapid Transit Auth., 644
F.2d 434 (5th Cir. 1981) (holding that NEPA itself does not give rise to a private
right of action). If they abandon the project, there is no live issue to review. If
they “voluntarily” scale back the project or accede to agency mitigation demands,
there is again no adverse decision on the record to challenge.
23
Previously, the Court has held that petitioners may challenge broad
mandates, even when the mandates themselves are advisory, if they have an
inherently coercive effect on private conduct. See Assoc. of Am. R.Rs., 575 U.S. at
59 (Alito, J., concurring) (noting that a broad mandate may be considered
regulatory where they “inherently have a ‘coercive effect’. . . on private conduct,
stating “[b]ecause obedience to the metrics and standards materially reduces the
risk of liability, railroads face powerful incentives to obey . . . [t]hat is regulatory
power.” (citations omitted)); Bennett v. Spear, 520 U.S. 154, 169-70 (1997)
(holding that petitioners had standing to challenge a biological opinion that would
have a “virtually determinative effect” on an agency action, even though “the
action agency [was] technically free to disregard the Biological Opinion and
proceed with its proposed action.”). That is what is happening with the IWG
estimates. In theory, agencies are free to use them and ultimately discount them in
their decision making processes. In practice, they will have a coercive effect,
particularly in NEPA reviews, pushing project proponents to scale back, mitigate,
or abandon their projects for reasons that are unrelated to the core mission of the
action agency.
The decision to make this sort of far-reaching determination that will have
significant economic and political consequences rests properly with the legislature,
not the executive.
24
CONCLUSION
The fundamental question in this case is not “how should the nation respond
to concerns about climate change?” It is “who decides?” Under our constitutional
structure, legislative power is vested in Congress, not the President. Decisions of
vast social, economic, and political consequences are properly made by the
representatives of the people in Congress, not by the whims of the current occupant
of the White House.
The decision to utilize a lower discount rate and examine global, rather than
domestic, effects of greenhouse gas emissions is a decision of vast economic and
political consequences, effectively reorienting much of the federal regulatory and
permitting process around climate change concerns. As such, this is a decision that
should properly be made by Congress, not the President. The District Court should
be affirmed.
25
Dated: June 23, 2022 Respectfully submitted,
/s/Gary M. Lawkowski
Gary M. Lawkowski
VA Bar No. 82329
D.C. Bar No. 1781747
DHILLON LAW GROUP, INC.
2121 Eisenhower Avenue, Suite 402
Alexandria, Virginia 22314
Telephone: 703-965-0330
Facsimile: 415-520-6593
GLawkowski@Dhillonlaw.com
Counsel of Record for Amici Curiae
26
RULE 32(g)(1) COMPLIANCE

Consistent with Rule 32(g), I certify that the foregoing brief contains 5,794
words, in compliance with Federal Rule of Appellate Procedure 29(a)(4)(G), and
that this brief complies with the type style requirements of Rule 32(a)(6), because
it has been prepared in Microsoft Word using Times New Roman Font, 14-point
font.
Dated: June 23, 2022
By: /s/Gary M. Lawkowski

Gary M. Lawkowski
27
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed a brief of amici curie Citizens
United and Citizens United Foundation in Support of the Plaintiff-Appellees
Louisiana, et al. Seeking Affirmance with the Clerk of the Court for the United
States Court of Appeals for the Fifth Circuit using the CM/ECF system, which will
send a notification of such filing to all counsel of record in this action.
Dated: June 23, 2022
By: /s/Gary M. Lawkowski

Gary M. Lawkowski
28

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CU/CUF Amicus Brief - Louisiana v. Biden (Biden Climate Executive Order)

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Case: 22-30087 Document: 00516368322 Page: 1 Date Filed: 06/23/2022

CASE NO. 22-30087

IN THE UNITED STATES COURT OF APPEALS

THE STATE OF LOUISIANA, BY AND THROUGH ITS ATTORNEY

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT

TRANSPORTATION; JENNIFER GRANHOLM, SECRETARY, U.S.

BRIEF OF CITIZENS UNITED AND CITIZENS UNITED FOUNDATION

GARY M. LAWKOWSKI DANIEL H. JORJANI

Counsel for Amici Curiae

STATEMENT OF INTEREST ................................................................................. 1

I. The Legislative Power of the United States is Vested in

a. Constitutional Principles of Separation of Powers

b. The Constitution Prohibits the Executive from Exercising

i. The Scope of Actions Impacted by Executive

ii. The Economic and Political Impact of Executive

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

Fed. R. App. P. 26.1(a) ..............................................................................................1

Citizens United and Citizens United Foundation are dedicated to restoring

government to the people through a commitment to limited government,

United Foundation regularly participate as litigants (e.g., Citizens United v. Fed.

Citizens United Foundation, and the Presidential Coalition as Amici Curiae in

1086, 21-1087, 2022 WL 1432037 (U.S. May 2, 2022)).

Citizens United is a nonprofit social welfare organization exempt from

Citizens United Foundation is a nonprofit educational and legal organization

proper construction of state and federal constitutions, as well as statutes related to

Congress of the United States . . . ” U.S. Const. art. I, § 1. Accordingly, at

minimum “[w]e expect Congress to speak clearly when authorizing an agency to

Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

Defendant-Appellant would have this Court believe that consideration of the

President’s discretion to consider the costs and benefits of regulatory actions, no

reaching effects on hundreds, if not thousands, of regulatory actions. The result is

to place an outcome determinative weight on the scale in matters as large as

significant regulatory actions and as small as project-specific environmental

https://bit.ly/3rk2hZC. How a social cost of carbon, or other greenhouse gases, is

calculated, and how the resulting number is used, embodies a number of

be organized. The resulting decision of whether and how to make these

considerations mandatory in all facets of environmental and regulatory review is a

Accordingly, the ruling of the district court should be affirmed.

I. The Legislative Power of the United States is Vested in Congress, Not

The Framers of the Constitution, in their wisdom, vested the legislative

closest to the people, thereby ensuring democratic accountability.

a. Constitutional Principles of Separation of Powers Arose Out of

concurring in judgment) (citing M. Vile, Constitutionalism and the Separation of

Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetundinibus Angliae 33

separate.” Id. (quoting W. Gwyn, The Meaning of the Separation of Powers 35

Philip Hamburger, Is Administrative Law Unlawful? 33 (2014) (“Hamburger”).

could not engage in “extralegal modes of legislation” outside of Parliament. Id. at

However, alongside this common law approach arose a theory of civilian

sixteenth and early seventeenth centuries, [monarchs] candidly claimed a

prerogative to legislate through their proclamations.” Id. at 33. In this context, in

575 U.S. at 71 (Thomas, J., concurring in judgment) (citing Hamburger at 37-38).

enacted by parliament,’ it ‘made by one act a total subversion of the English

constitution.” Dep’t of Transp., 575 U.S. at 71 (Thomas, J., concurring in

Caesar to the Revolution in 1688 266 (1983)).

As a result, while monarchs occasionally tried to make legislative rules, they

revenue without the participation of Parliament.” Perez v. Mortgage

offence by his proclamation, which was not an offence before, without

Judicial Duty 202 (2008)).

Blackstone “defined a tyrannical government as one in which ‘the right both of

American R.Rs., 575 U.S. at 73 (Thomas, J., concurring in judgment) (quoting 1

of Parliament “would assemble to do the business of legislation, but then . . .

(Thomas, J., concurring) (citing W. Gwyn, The Meaning of Separation of Powers