To Utah Attorney General Sean Reyes:
You’ve added Utah to a lawsuit opposing President Joe Biden’s executive order directing executive agencies to review and (“as appropriate and consistent with applicable law”) potentially revise the executive branch’s current “estimates of the monetized damages associated with incremental increases in greenhouse gas emissions.”
The backdrop, as you’re aware, is as follows:
· In 1981, President Ronald Reagan signed Executive Order 12291, which required executive agencies to quantify the costs and benefits of major regulations.
· In 2008, the U.S. Court of Appeals for the Ninth Circuit directed an executive agency (the Department of Transportation) to monetize the value of reducing carbon emissions.
· In 2009, a collaborative group formed among agencies in the Obama administration developed a working estimate of the social cost of carbon.
· In 2018, the Trump administration’s Environmental Protection Agency reviewed and revised (downward) the executive branch’s estimate of the social cost of carbon.
· In 2021, following the precedent of the Trump administration, the Biden administration is reviewing and, based on that review, may potentially revise the existing estimate.
So, why are we suing the Biden administration? In your words:
Estimating the ‘social cost’ of greenhouse gases is a speculative legislative policy decision that should be left to Congress. President Biden’s executive order creating a working group to estimate global social costs – and using those estimates to justify regulatory action – violates the Constitution because Congress did not delegate this authority to the working group.
The State of Utah wants reasonable clean air and environmental policies that protect Utah and the air we breathe, not executive orders that bypass Congress and subject businesses and whole industries to onerous restrictions arbitrarily based on subjectivity and not science.
Under this order, nearly any activity imaginable could be regulated, restricted or even shut down based on very amorphous and undefinable standards. It’s a recipe for economic disaster without the benefit of any sustainable and responsible policy.
In brief, you’re claiming that executive agencies reviewing and revising the social cost of greenhouse gases are violating the Constitution.
This claim gives rise to at least a few questions that I’d love to hear you answer:
When President Reagan required executive agencies to estimate the costs of major regulations, was he asking members of his administration to violate the Constitution?
When the Ninth Circuit directed the Department of Transportation to estimate the cost of carbon, was a U.S. appeals court directing a federal agency to violate the Constitution?
When the Trump administration reviewed and revised the social cost of greenhouse gases (two and a half years ago), was President Trump violating the Constitution?
You’re also claiming that Utahns want “reasonable” environmental regulations, not environmental regulations that are “arbitrarily” based on “subjectivity and not science” or, in other words, “very amorphous and undefinable standards.”
Here’s a thought experiment for you:
Identify a “reasonable” environmental regulation (actual or hypothetical).
What is your assessment of this regulation’s reasonableness based on?
Is your assessment based on your estimate that the costs to Utahns from not regulating the activity in question outweigh the benefits to Utahns from not regulating it?
Assuming that’s the case (not “Believe me, [it’s reasonable]” or “I know [reasonableness] when I see it”), have you quantified your estimate that, in this case, the costs of not implementing your “reasonable” environmental regulation outweigh the benefits of not implementing it?
Assuming that’s the case (given that leaving your estimate unquantified would render it arbitrary, subjective, non-scientific, amorphous and undefinable), will you reconsider dragging us into a lawsuit against the Biden administration for taking the same reasonable approach?
Brad Barth
Brad Barth is a resident of Salt Lake City and a graduate of the University of Utah.