Could Federal courts roll back climate regulatory overreach?

By Collister Johnson July 18th, 2023 72 Comments @ CFACT

The US Court of Appeals for the District of Columbia has recently decided two cases which indicate that federal district courts are prepared to roll back the relentless onslaught of regulatory overreach advanced by the Biden Administration.

For years, meaningful judicial oversight of the regulatory deep state bureaucracy has been stymied by a legal doctrine known as “Chevron Deference”, named after the 1984 Supreme Court case,

Chevron v. National Resources Defense Council, which held that courts should defer to bureaucratic “expertise” when deciding cases where the underlying law and facts are ambiguous.

In American Public Gas Association v. US Department of Energy, decided July 7, 2023, the District Court specifically rejected Chevron Deference in a case involving DOE’s regulation of the commercial gas boiler market, and ruled that the DOE failed to provide “clear and convincing” evidentiary support for a rule that would have upended that market in the name of energy efficiency.

Similarly, in Maine Lobstermen’s Association v. National Marine Fisheries Service, decided June 16, 2023, the same court specifically declined to adopt “aggressive Chevron deference” and ruled that NMFS misapplied the Endangered Species Act when it passed a rule which would have effectively shuttered the lobster fishing industry in the name of saving the endangered North Atlantic Right Whale.

Both decisions required the Court to dig deep into the weeds of the market mechanics underlying two private sector markets – lobster fishing and commercial gas boiler manufacturing – in order to conclude that the bureaucrats of DOE and NMFS did not interpret facts properly in applying the underlying law. The intricacies and details of these markets are not commonly known and required detailed investigation. In the case of gas boilers, the Court was not afraid to devote pages of its opinion to the intricacies of “Monte Carlo simulation and the probability distributions” of DOE’s market demand models. Similarly, in the lobstermen case, the Court took pains to research the history of the Right Whale as a species and undertake a detailed investigation into its relationship to the NMFS rule regarding lobster fishing equipment, which would purportedly reduce Right Whale deaths.

This rejection of Chevron Deference will be critically important in upcoming cases where the plaintiffs will be seeking to have the courts employ the Endangered Species Act to halt offshore wind development. The ESA requires the government to “ensure” that the leasing of offshore federal waters is “not likely to jeopardize the continued existence” of a protected species – in this case the critically endangered North Atlantic Right Whale.

The huge Virginia offshore wind project is a case in point. In the Draft Environmental Impact Statement for that project, NOAA has admitted that “it is not possible to predict with certainty the potential long term behavioral effects on marine mammals of the project-related pile-driving or other activities [vessel movements, vessel noise, high resolution geophysical surveys, geotechnical drilling, dredging activity, and operational noise]”. “The exact level and extent of impacts on the North Atlantic Right Whale is impossible to predict with certainty”. In other words, the answer of NMFS to the question of whether the Virginia offshore wind project will jeopardize the continued existence of the Right Whale as a species is:

We don’t know.

Based on the Lobstermen’s >and American Public Gas Association cases, that defense, while forthright and accurate, would be met by the DC Circuit (and other federal courts which follow its lead) with a resounding rejection. The “we don’t know” defense not only fails to meet the “clear and convincing” standard, it doesn’t come close to meeting the “not likely” to jeopardize standard.

So from a legal standpoint, a case brought in the DC circuit by a plaintiff against NMFS, based on the ESA, challenging the Virginia (or other East Coast) wind projects would have these two powerful precedents to rely on, and the government would be burdened with an admission that it lacks critical facts to support any decision approving the project.

There is ample room for hope that the federal courts will at least slow down, if not halt, the insane rush to destabilize the US electricity grid in the name of resolving “climate change”.

Author  

 

  Collister Johnson Johnson has spent the last four decades working in the public and private sectors in Virginia, primarily in the fields of project finance and maritime transportation. He began his career in public service as Chairman of the Board of the Virginia Port Authority. He was appointed by President George W. Bush, and confirmed by the Senate, as a member of the Overseas Private Investment Corporation, and most recently, as Administrator of the St. Lawrence Seaway Development Corporation. In that capacity, he became knowledgeable in the field of climate and its impact on the Great Lakes. He currently serves on CFACT's Board of Advisors. Johnson holds a B.A. degree from Yale University, and a J.D. from the University of Virginia.

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