CHECC Has Petitioned The DC Circuit For Rehearing As To Its Standing To Challenge The Endangerment Finding

July 12, 2023 Francis Menton @ Manhattan Contrarian

Here in my retirement, my remaining law practice consists almost entirely of working on one case in the DC Circuit Court of Appeals, going by the caption Concerned Household Electricity Consumers Council v. EPA. From time to time when there is a development in the case, I will report on it in a post here.

My most recent update on the case was on May 25, when the DC Circuit issued a decision throwing us out on the ground of “standing.” When a case challenges a regulation issued by a government agency, the “standing” doctrine requires that a party bringing the case show some kind of concrete injury from the challenged regulation, which here is EPA’s 2009 determination that CO2 emissions into the atmosphere constitute a “danger to human health and welfare.” 

Our showing was that the Endangerment Finding forces an onslaught of federal regulations suppressing consumption of fossil fuels; and that policies suppressing fossil fuels have been demonstrated in every jurisdiction that has tried them to lead to large increases in electricity prices. But the court in its wisdom ruled that the plaintiff electricity consumers were not “directly regulated by the challenged rule,” and that we had “fail[ed] to provide any evidence of injury.”

I titled my May 25 post, in the aftermath of that decision, as “At CHECC We’re Down But Not Out!” And indeed we have now bounced back! On Monday we filed a Petition for Rehearing En Banc, the term “en banc” meaning that the hearing we seek would be by the full court of eleven active judges rather than just the panel of three that initially heard the case.

The court only takes up a tiny handful of these “en banc” requests in any given year. And thus you might say that our odds are long. But then, this may be one of the most economically significant cases ever to come before this court, involving an attempted regulatory transformation of the entire energy economy of the country.

So we have taken this occasion to point out some of the absurdities of the doctrine of “standing” as it has developed over the years. I have written before (for example, in this post from April 14 on the occasion of the oral argument in our case) that the “standing” doctrine starts out as a reasonable idea that “keeps the courts out of a good deal of mischief.” 

But the problem is that, as various cases have come before the courts, many judges have bent over backwards to find standing for politically-favored categories of plaintiffs, while at the same time the standing doctrine has been used as an easy way to get rid of cases brought by politically-disfavored categories of plaintiffs without having to do the difficult work of grappling with the merits. You won’t be surprised to find out that the politically-favored category includes those claiming to be harmed by environmental degradation of any sort, no matter how speculative or inchoate such alleged environmental degradation may be. Usually the entities asserting standing from some sort of environmental degradation turn out to be richly-funded environmental activist groups, like the Natural Resources Defense Council, Environmental Defense Fund, Greenpeace, or the like. 

Meanwhile, when the plaintiff is a consumer group asserting that some regulation will drive up costs to consumers, somehow the law of standing finds that the impact of the regulation on consumer costs is insufficiently clear or immediate. And thus somehow the result of standing doctrine in the courts is a one-way ratchet where environmental groups seeking more regulation often get favorable rulings, while consumers seeking less regulation get thrown out.

In our current Petition for Rehearing En Banc, we use a couple of particularly extreme recent precedents to illustrate this point. One is from the DC Circuit itself from 2020, captioned Natural Resources Defense Council v. Wheeler. This decision was written by the current Chief Judge of the court, Sri Srinivasan. You might remember him as having been a leading contender for the 2022 Supreme Court nomination, before President Biden announced that he would only consider a black woman for the slot. Anyway, the case involved a demand by NRDC that EPA engage in further regulation of gases called hydrofluorocarbons, or HFCs, on grounds that they are “greenhouse gases” like CO2. NRDC sought standing on the ground that one of its members owned a piece of coastal real estate that was allegedly “threatened” by global warming. From our brief:

There was no assertion that any of the harm had actually yet occurred, nor when it would occur, nor how it could be redressed by a court order that would have the same power over sea level as the commands of King Canute, but without the humility. In the real world, no evidence has ever established any link between GHG emissions and any supposed enhanced “threats” to coastal property, and all attempts to show that such emissions have led to accelerating sea level rise or increased hurricane activity have failed. No matter. The Court held as follows:

Petitioners then have adequately linked the 2018 Rule to an injury-in-fact: the 2018 Rule will lead to an increase in HFC emissions, which will in turn lead to an increase in climate change, which will threaten petitioners’ coastal property.

When you are an environmental plaintiff like NRDC, it’s that easy.

Another case we pointed to is the famous Kelsey Cascadia Rose Juliana v. United States, currently pending in the District of Oregon after a couple of trips to the Ninth Circuit and one to the Supreme Court. This is the case where a small group of juvenile plaintiffs seeks to have the court order the federal government to ban all use of fossil fuels on the basis of a claimed constitutional right to a stable climate. In that case the courts have struggled with an aspect of standing doctrine called “redressability” (that is, whether a court has the ability to order a remedy like the one requested), but not with the question of whether the plaintiffs have alleged sufficiently concrete harm to themselves to justify their presence in court. From our brief:

The Ninth Circuit in 2020 held plaintiffs alleged sufficient “injury in fact” and “traceability” elements (while rejecting redressability) based on allegations that:

Kelsey spends time along the Oregon coast in places like Yachats and Florence and enjoys playing on the beach, tidepooling, and observing unique marine animals. . . . The current and projected drought and lack of snow caused by Defendants are already harming all of the places Kelsey enjoys visiting, as well as her drinking water, and her food sources—including wild salmon. . . . Defendants have caused psychological and emotional harm to Kelsey as a result of her fear of a changing climate, her knowledge of the impacts that will occur in her lifetime, and her knowledge that Defendants are continuing to cause harms that threaten her life and wellbeing.

Contrasted to Kelsey Cascadia Rose’s “psychological and emotional harm . . . as a result of . . . fear of a changing climate,” we made a presentation of massively increasing consumer electricity rates in every state that has engaged in systematic fossil fuel suppression. The core of the presentation is this chart, with data from the U.S. Energy Information Agency (part of the Department of Energy) as of April 2023:

With the exception of Alaska and Hawaii (where high rates are driven by geographical remoteness and physical difficulty of providing service), all of the highest cost states are the ones with fossil fuel suppression programs, whether California or the RGGI states of the Northeast. Many of these fossil fuel suppression states have average consumer rates that are double or more the national average consumer electricity costs.

I think that our Petition makes for some entertaining reading, and I recommend the whole thing to you. (Full disclosure: I drafted most of it, although I had some significant help from my excellent co-counsel, Harry Macdougald.). With hundreds of billions of dollars of increased electricity costs at stake from regulations that have no chance of any significant effect on the climate, you would think that the court would pay some attention. But we are not counting on that.