Final Brief Submitted In CHECC v. EPA

February 11, 2023 Francis Menton @ Manhattan Contrarian

The briefing is now complete in Concerned Household Electricity Consumers Council v. EPA. That is the case, currently pending in the U.S. Court of Appeals for the D.C. Circuit, where a small and brave band of electricity consumers, CHECC, challenges the “science” behind EPA’s 2009 finding that CO2 and other “greenhouse gases” constitute a danger to human health and welfare. I am one of the attorneys for CHECC.

Our final Reply Brief was filed originally on Tuesday February 7, and then re-filed in corrected form the next day. (The reason for “correction” is too trivial to go into here. The clerks in the D.C. Circuit take great pleasure in devising trivial reasons to require lawyers to file “corrected” briefs.). Here is a link to the brief. It probably requires a subscription to access. Over the next few days we will probably come up with a way to provide a public access link to the full set of briefs in the case.

In the case, we ask the court to compel EPA to go back and re-assess the “science” of greenhouse gas “endangerment.” The briefing process gave EPA the chance to put its best foot forward as to the scientific basis underlying the finding of endangerment. What is truly remarkable is the extent to which EPA, not to mention the entire government-backed scientific establishment, completely lack any real scientific basis for the claim of great “danger.” The briefing has made that embarrassingly clear.

Equally remarkable is that the job of challenging EPA’s pseudoscientific smokescreen is left to a small handful of individuals working completely pro bono. The fear of being labeled a “science denier” by leftist groupthinkers is apparently strong enough to force almost everyone who should know better off the field of battle. However, we are grateful to the CO2 Coalition for its support in the form of an excellent amicus brief. The CO2 Coalition is the principal group of real scientists willing to continue to speak out about the fake science behind the climate change scare. The CO2 Coalition’s amicus brief was mainly the work of Professors William Happer of Princeton and Richard Lindzen of MIT.

I won’t try to go into great detail about the arguments in the brief, but here are two of the main ones:

The Made-up Surface Temperature Record

EPA relies on so-called “surface temperature” data, dating back to the late 1800s, which show substantial atmospheric warming over that period. The data derive from a network of ground-based thermometers. There are many, many problems with these data, mostly relating to the undeniable fact that the people who are responsible for compiling and maintaining the data massage, manipulate and in-fill information for various purposes, leading to an overall record that is thoroughly corrupted and unfit for any policy purpose. My thirty-part series “The Greatest Scientific Fraud Of All Time” addresses the processes by which the massaging and manipulating leads to reductions in earlier-reported temperatures to enhance the apparent warming trend in the record.

But for purposes of this case, we focused on an aspect of the surface temperature record that is even clearer and less ambiguous: there is virtually no reported data as to surface temperature from the Southern Hemisphere oceans from before the year 2000. The Southern Hemisphere oceans are approximately 40% of the earth’s surface, and the period before 2000 is more than 80% of the surface temperature record. All the data for that vast proportion of the record has been fabricated by the people who are promoting the climate change scare. That fact leaves a gaping hole in EPA’s rationale for the Endangerment Finding. In its Brief, EPA simply tried to avoid the subject. From the Reply Brief, page 14:

EPA says the argument presents nothing new, and that it previously rejected similar arguments, and that the D.C. Circuit affirmed in Coal. for Responsible Regul., Inc. v. E.P.A, 684 F.3d 102 (D.C. Cir. 2012). But EPA has not shown where in the Endangerment Finding documents the lack of data from the Southern hemisphere oceans was addressed.

The Failure Of Real World Data To Validate The Models On Which EPA Relies

You might think that using real world data to validate hypotheses is the essence of science. But in the field of climate science, and particularly of government-backed climate science, when the data don’t support the model the response is a barrage of excuses and evasions.

Besides the failure of temperatures to rise at nearly the rate models have predicted, there is an even more definitive and embarrassing model failure, which is the absence of the predicted “tropical hot spot.” The “hot spot” was fundamental to EPA’s claimed understanding of the mechanisms of world climate that formed one of the bases of the Endangerment Finding. At pages 15-19 of the Reply Brief we beat EPA over the head with the fact that the “hot spot” can’t be found.

In EPA’s Brief, it responded as to the “hot spot” not by showing that it existed, but rather by claiming that they never said it was important. From the Reply Brief, page 18:

EPA’s contention at p. 48 of its brief, and p. 21 of the Denial that the model- observation mismatch on the Tropical Hot Spot is not important is inconsistent with its previous position on this topic. The Technical Support Document for the 2009 Endangerment Finding at p. 50 says that if the Hot Spot were missing it would be “an important inconsistency.” Now that it is proven to be missing, even by the IPCC, EPA says it is an unimportant inconsistency. EPA’s double-talk does not meet the requirement of rational decision making.

There is plenty more in the Reply Brief for your reading pleasure, should you have the time. The betting line is that the D.C. Circuit will fall for EPA’s hocus pocus, but you never know when rationality might prevail.