Giant coal trains near North Antelope Rochelle Mine, Wyoming. Photo: KimonBerlin/flickr CC BY-SA 2.0

Bull Mountains Victory and the “Social Cost of Carbon”

9th Circuit revives challenge to Montana coal-mine expansion but won’t mandate analysis using “social cost of carbon”

Some rare good news came down from the 9th Circuit Court of Appeals recently. In a 2-1 decision, the court rejected an Environmental Assessment (EA) that would have green lighted expansion to the Bull Mountains underground coal mine near Roundup, Montana.

The court majority held that the EA provided no scientific reasoning to support its conclusion that the expansion would have no significant impact on greenhouse gas emissions. A Trump appointee on the 3-judge panel dissented on grounds that courts “are ill-equipped to step into highly politicized scientific debates like this.”

As a result of the 9th Circuit decision, four environmental groups — 350 Montana, Montana Environmental Information Center, Sierra Club, and WildEarth Guardians — will be allowed to continue their lawsuit challenging the environmental review in Montana federal court. The district court judge who initially dismissed the major claims in their lawsuit will decide whether to pause the project or let it continue while the lawsuit is in progress.

The Trump Administration’s Office of System Management (OSM) had claimed the expansion would have “no significant impact” on global emissions.  In rejecting the claim, the court stated, “The 2018 EA fails to articulate any science-based criteria for significance in support of its finding.”

The facts of the case were undisputed. With the proposed expansion, “the Mine [including mining, shipping, and burning the coal overseas] is anticipated to generate more GHGs annually than the largest single point source of GHG emissions in the United States.” The government just didn’t believe this to be “significant.”

In its remedy the 9th Circuit remanded the matter to the Montana federal district court to determine whether to vacate the mine plan, merely remand to OSM, or something in between.

As the world’s top climate scientists have been explaining for decades, every ton of GHG emissions is “significant.” In a rational system, there would be no talk of further fossil fuel development, and certainly not of coal. In the bureaucratic regulatory processes of the capitalist state, at least strictly enforced numerical guidelines and specific GHG metrics would be useful in determining whether proposed fossil fuel projects are lawful.

But that is not how the system works. Capital fights ferociously against standards, much less outright bans. Once risk of harm is given numerical form based on science, all emissions become unacceptable. A de-facto limit to growth would be imposed, calling into question the very imperative of Capital. At present, the legal system forces fossil fuel resisters to fight the fossil fuel industry in whack-a-mole fashion, project by project, ruling by ruling.

Social Cost of Carbon

Not everything in the Ninth Circuit decision was to the liking of the environmental groups. The court refused to require the government to include a “social cost of carbon” analysis in any further environmental review of the mine expansion. The social cost of carbon (SCC) is “an estimate of the economic costs, or damages, of emitting one additional ton of carbon dioxide into the atmosphere.”

This again goes to the reliance on metrics, with the court arguing that: “prescribing a specific metric for the agency to use on remand is not our role…. We are not persuaded by plaintiff’s argument that Interior was required to use the SCC, but Interior must use some methodology that satisfies [the National Environmental Protection Act] and the [Administrative Procedures Act].”

Perhaps the environmental groups’ lawyers were simply doing what they must in arguing for the social cost of carbon metric, but our movement should be vigilant in recognizing that this concept is a double-edged sword at best.

Whatever value SCC may have in environmental litigation, I have long argued against use of the SCC as a market mechanism for emission reduction is fundamentally flawed. Study after study has attempted to come up with a logical, viable “methodology” for determining such a cost. What price should we put on the loss of an entire species? How about the loss of coral reefs and kelp forests? Can you put a dollar amount on mass starvation, migration and social upheaval? Perhaps you want to assign the cost of all this to the well-being of future generations?

It is my belief this neoliberal SCC approach has a number of fatal flaws, both in terms of actually reducing greenhouse gasses or helping build a movement for the needed structural change. History demonstrates that from Kyoto till our present precarious moment, using markets to slow emissions has been an abysmal failure. But more importantly, relying on pricing and taxes is an insidious subversion of democracy, understood as rule by the people. It signals capitulation to market ideology and the very set of logics which brought us to the brink of ecological catastrophe. It is the waving of a white flag to the dictatorship of market rationality. And as the Green Vest rebellion in France demonstrated so clearly, the people will resist being forced to pay for the crimes of Fossil Capital.

Imagine explaining the SCC to a child: Well sweetie, unfortunately our economic system somehow failed to account for the cost of pollution, threatening the life support system we all depend on. But now some smart people believe they can calculate that cost. And by changing the price of everything we purchase, we can now fix all the problems in time to save the planet.

The first question any child would ask is: why don’t you just stop polluting? And we would have to explain that people don’t govern their own behavior, only the market, through pricing, can govern it for us. We the People don’t have the power to stop the harm, only an “invisible hand” can do that.

Or imagine this: In 1830 the abolitionists in the U.S. attempt to calculate the “social cost” of slavery. By placing a monetary value on brutality, rape and torture, building in a “future discount rate,” they then come up with a tax they can add to a bale of cotton or tobacco, thereby raising the price and dissuading people from supporting slavery. Because no one would be persuaded by a moral argument.

How Is Cost Determined?

But let’s assume The People willingly accept this dictatorship and agree that “cost/benefit” is the only viable form of reasoning or metric for decision making. Despite the history, could adopting a “social cost of carbon” actually translate into pricing that reverses global heating?

A look at the language used by those doing the analysis reveals a great deal. A good example comes from the Institute for Policy Integrity in a report meant to provide guidance to states. Having assembled research data and the results of various modelling projects, they arrived at a SCC ranging from $14.00 per ton of CO2 to $386.00. They admit that a great deal of damage cannot be quantified and is therefore “omitted” and that “uncertainty is due to the complexity of the climate system, the difficulty of placing a monetary value on environmental services, the long time horizon over which climate change occurs (not linear)” and the extent of previous emissions. They admit to a “methodological shortcut to approximate the uncertainties in low-probability but high-damage, catastrophic or irreversible outcomes.” In other words, they suggest we make crucial, even existential policy decisions based on guesswork. The analysts justify the wild variation as being better than nothing and suggest the numbers be taken as low estimates. We are to feel assured because their models use the latest algorithms and economic science.

Value and Worth

If the climate science is correct, the decisions that are made in this moment are hyper-critical. Avoiding catastrophic system failure, perhaps even societal collapse, will require not just a radical reduction in greenhouse gases but profound changes in land and water use patterns as well. So while it might be possible to determine the “social cost” of a tomato; employing a careful analysis of all the externalities, adjusting for inflation, etc., the same process can’t be applied to the vast, complex ecosystems on which all beings depend.

Deciding how to manage resources and what to do with the waste are intrinsically political decisions and are not reduceable to a quantifiable, economic “cost/benefit” analysis. For the vast majority of humans, those with the least power to affect outcomes, the “costs” — mass migration, famine, species extinction, rising sea levels, extreme heat, etc. — are unbearable and no “price” can account for them. For the very few who wield the greatest power, the “benefits” — continued economic growth, profit accumulation, privilege, and even luxury — outweigh those costs.

The question of who gets to make those decisions- economic modelers or the people most impacted- is the question of power. Will these be collective decisions reached through political process and enforced through governance, or individual behavioral choices influenced through the price mechanism?  Do we re-claim and exercise the power to manage the resources we collectively own, or do we give our power over to the market and those who have always manipulated it to their advantage? By rejecting the “social cost of carbon” and placing a ban on fossil fuel extraction we get a win/win. Win the planet and win our power back.

Dave Jones is a retired fishing guide and autodidact living in western Montana. He is the father of three amazing women and husband to a fourth. He is a founding member of the Zootown Zapatistas and is active with DSA as well as with System Change Not Climate Change.

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On Sept 19, 2023 ahead of the Climate Ambition Summit in New York City, climate activists gathered for a rally and civil disobedience outside Bank of America Tower in Midtown Manhattan as part of the March to End Fossil Fuels wave of actions resulting in multiple arrests. Activists demand Bank of America to “Defund Climate Chaos and Defend Human Rights” Photo: Erik McGregor (CC BY-NC 2.0 Deed)

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