At CHECC, We're Down But Not Out!

May 25, 2023 Francis Menton  @ Manhattan Contrarian 

Today, the Court of Appeals for the DC Circuit issued its Judgment in the case of Concerned Household Electricity Consumers Council, et al. v. EPA. I am one of the lawyers for CHECC in this matter, where the Petitioners seek to have the court order EPA to reconsider its ridiculous 2009 Endangerment Finding (EF) that CO2 and other “greenhouse gases” constitute a “danger” to human health and welfare. To no one’s surprise, the court dismissed our Petition. The sole ground for the dismissal was what they call “standing.” The court did not reach or discuss the merits of the Petition, namely whether data and evidence accumulated since the 2009 EF had rendered the Finding definitively false and in need of reconsideration.

Also today, the Supreme Court decided the case of Sackett v. EPA. The Sackett case involved a different EPA rule, called the Waters of the United States rule. Thus the two cases may seem to be unrelated. But in fact they are closely related in the most important way, which is that both involve wild overreach by EPA, followed by cynical gaming by EPA of court procedural rules in order to avoid ever being held to account for the overreach. In Sackett, EPA finally got its comeuppance today, after almost 20 years of litigation. The Sackett decision increases our confidence that EPA will ultimately also be held to account for the EF and the many destructive rules flowing from it; but exactly how and when that will occur remain to be seen.

As discussed in my prior post of April 14, the oral argument held that day in CHECC v. EPA dealt almost entirely with the issue of standing. EPA focused their argument on seeking dismissal on this procedural ground, thus hoping (successfully, as it turned out) to avoid the merits. They contended that the Endangerment Finding was not itself a rule that affected anyone financially, and that there wasn’t even a pending, let alone final, rule seeking to limit greenhouse gas emissions from the electric power sector. They also contended that the 2009 Endangerment Finding that we were challenging related to the transportation sector (“mobile sources”) rather than the electricity sector (“stationary sources”).

Talk about cynical. The 2009 EF that we challenged in fact contained the only thing passing for the scientific basis of the Obama-era rule, called the Clean Power Plan, that sought to abolish fossil-fuel generated electricity. The CPP was rescinded by the Trump administration, and then ultimately declared an invalid overreach by the Supreme Court in West Virginia v. EPA on June 30, 2022. As CHECC v. EPA was getting briefed and argued between late 2022 and April 2023, it was common knowledge that Biden’s EPA had in the works a new and even more onerous rule restricting power plant emissions. That rule was only announced on May 8, and officially appeared in the Federal Register on May 23 — just two days ago. In the newly-published proposed rule relating to stationary sources, EPA acknowledges the 2009 EF as the source of the supposed scientific basis for the rule (at page 33,249):

In the 2009 Endangerment Findings, the Administrator found under section 202(a) of the CAA that elevated atmospheric concentrations of six key well-mixed GHGs—carbon dioxide (CO2), methane (CH4), nitrous oxide (N2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)—“may reasonably be anticipated to endanger the public health and welfare of current and future generations” (74 FR 66523; December 15, 2009) . . . .

Meanwhile, from today’s DC Circuit opinion:

CHECC draws no connection between the Endangerment Finding (which compels the regulation of motor vehicle emissions under § 202(a) of the Clean Air Act) and the price of residential electricity.

And thus, if you can even follow the convoluted logic here, EPA, with the support of the DC Circuit, has made it such that no consumer of electricity can challenge a rule seeking to eliminate the large majority of all reliable sources of electricity, and to impose on consumers what will almost certainly be hundreds of billions of dollars of additional costs.

We plan to fight on, likely through the en banc DC Circuit and the Supreme Court. Maybe we will see success at one of those levels, and maybe not. Undoubtedly, when the new power plant rule becomes final — later this year or maybe in 2024 — there will be multiple challenges to that on grounds similar to the ones that were ultimately successful in West Virginia v. EPA. Those challenges will likely reach the Supreme Court some time around 2027 or 2028. The question is, will there be anything left of our reliable electricity-generation sector by that time?

In the Sackett matter, the Sacketts began to work on building a house back in 2004. Within a few months, EPA issued an order to the Sacketts demanding that they stop work and restore the property, on the ground that wetness on the property was part of “waters of the United States” that EPA regulated. When the Sacketts attempted to bring a court action to determine that EPA’s order was overreach, EPA contended that the Sacketts had no ability to sue until going through a full administrative process — and incurring fines for non-compliance of some $40,000 per day. The Sacketts took that case to the Supreme Court, which ruled in 2012 that the Sacketts had the right to sue. So they went back to the District Court, where, after 7 additional years of proceedings, the court ruled against the Sacketts in 2019 and determined that the wetness on the Sackett property was part of the “waters of the United States.” The Ninth Circuit affirmed in 2021. And the Supreme Court reversed today.

Incredibly, the Sacketts saw their case through nearly 20 years of this to achieve their victory. But their saga shows you EPA’s game plan — string things out so far as to exhaust the opposition and, in our case, force the entire reliable capacity for generating electricity out of business before the courts can intervene. We hope to achieve some success before too much destruction has occurred, but as can be seen from the DC Circuit’s decision, even at that prestigious court there is little sense yet of any kind of problem.

The Briefing Begins In CHECC v. EPA

October 22, 2022/ Francis Menton @ Manhattan Contrarian

In a post last week, I gave notice that battle was about to be joined with the EPA over what it claims to be the “science” behind global warming alarm. The case is called the Concerned Household Electricity Consumers Council (CHECC) v. EPA, now pending in the DC Circuit Court of Appeals. CHECC challenges EPA’s 2009 Finding that CO2 and other greenhouse gases constitute a “danger” to human health and welfare. At the outset of the Trump administration, CHECC filed a Petition for reconsideration and rescission of the Endangerment Finding. That Petition was finally denied by EPA on April 20, 2022, more than a year into the Biden administration, and the appeal followed. I am one of the attorneys for CHECC.

The opening Brief on behalf of CHECC was filed on October 14, and a week later on October 21 an amicus curiae brief was filed in support of CHECC by the CO2 Coalition, together with Professors William Happer of Princeton and Richard Lindzen of MIT. I was going to start off with a review of the CHECC brief, which I helped to prepare, but as luck would have it our CHECC brief got “bounced” by the clerks at the DC Circuit. 

For those of you who have never dealt with court clerks, there is a great resemblance to the DMV, or perhaps to the old Soviet bureaucracy. The alleged ground for bouncing our brief was that we had used too many acronyms — things like EPA, IPCC, GHG (greenhouse gases), GAST (global average surface temperature), and so forth. Our use of such acronyms was somehow deemed excessive, so we need to go back and make some very minor modifications before there is a completely final version of the brief. Rather than confuse things by referring to a brief that will shortly change in minor ways, I’ll start today by covering some of the highlights of the CO2 Coalition amicus brief.

First, we are extremely honored to have such distinguished and serious scientists supporting our position. For those who haven’t heard of them, Professors Happer and Lindzen are, respectively, the senior atmospheric physicists on the faculties of Princeton and MIT. Their lists of titles, awards and honors are almost endless, and occupy several pages in the brief. The CO2 Coalition is a large group of top scientists and people in related fields with specialties related in one way or another to the global warming subject matter, and whose views lean toward skepticism. Happer is the Chair of the CO2 Coalition, and Lindzen is a member.

You might think that tackling the “science” of CO2-driven atmospheric warming is just too heavy a lift to get a court interested, and maybe that’s where this court will end up. But this brief shows why the subject is not really that complicated. At page 18 the brief quotes the famous aphorism of physicist Richard Feynman, “If it disagrees with experiment, it’s wrong.” In other words, it’s just a question of finding a few, or even one, example where the theory relied on by EPA is contradicted by the data.

The brief minces no words in distinguishing real science from the government-dictated orthodoxy and consensus on which EPA relies. This is from the summary of argument:

Scientific knowledge is determined by the scientific method, through which theoretical predictions are validated or rejected by observations. If the theoretical predictions do not work, the theory is rejected. That’s real science. Scientific knowledge is not determined by government-controlled opinions, consensus, peer review, or theoretical models that do not work. Those are false science. This brief applies the scientific method to the Endangerment Findings and its supporting Technical Support Document and demonstrates both are scientifically corrupted and thus must be rescinded .. . . .

In subsequent sections the brief compares IPCC model predictions of catastrophic warming — specifically relied upon by EPA in the Endangerment Finding’s Technical Support Document — to temperature observations thus far in the real world. They include this famous chart from Congressional testimony given by John Christy back in 2017:

From the brief, commenting on the divergence of theory from observations:

We now know the IPCC theoretical climate models, an early version of which was used in the Endangerment Findings and Technical Support Document, fail the basic test of the scientific method and, thus, should not be used. Without a valid theoretical model, the IPCC’s future climate projections and scenarios have no scientific validity. For this reason alone, the Findings and Technical Support Document should be rescinded.

And the brief does not just end after demonstrating that EPA’s theoretical projections of climate catastrophe have been scientifically invalidated. Pages 30-32 are then devoted to a presentation of new work by Professor Happer and co-author William van Wijngaarden demonstrating why the capacity of CO2 and other greenhouse gases to warm the atmosphere is largely saturated at current concentrations, such that further increases in concentrations only have the potential to cause insignificant further warming. The Happer/van Wijngaarden paper is definitely technical and challenging to understand. However, in the context of this dispute, it is just an additional argument not essential to victory. The key point is that EPA’s “science” has been invalidated by evidence.

By all means read the entire brief if you have the time and inclination. We are very grateful to the CO2 Coalition and Professors Happer and Lindzen for their support.