Comment Filed In Support Of EPA's Repeal Of The 2009 Endangerment Finding

 September 17, 2025 Francis Menton @ Manhattan Contrarian

Yesterday, along with two excellent colleagues, I submitted a Comment to EPA on the subject of the proposed and pending repeal of the so-called Endangerment Finding of 2009. The Endangerment Finding (EF) is the absurd regulatory action by which the Obama-era EPA purported to find that the trace gas carbon dioxide (CO2) constitutes a “danger” to human health and welfare as it accumulates in the atmosphere from the current level of about 0.04%, to perhaps 0.05% or maybe even (the horror!) 0.06% by some time later this century. 

The EF is then the basis for all the subsequent regulatory initiatives by the Obama and Biden administrations to regulate and suppress the production and use of hydrocarbon fuels. These initiatives have included things like rules to force the closure of all coal and natural gas power plants by some time in the 2030s; mileage rules for automobiles that would ratchet up over time until no gasoline-powered car could comply (also by some time in the 2030s); restrictions on oil and gas leases on federal lands; blocking the construction of pipelines; and even regulations that have made it so that dishwashers and washing machines don’t work very well any more.

Here is a link to our Comment.

Some background for those who have not been following closely, or maybe who have lost track of the status of this long-running saga: The EF was always absurd, but as long as Obama was in office it was pointless to try to get his EPA to reconsider it. However, after Trump first got elected in 2016, I got together with a group of friends and colleagues to see if we could encourage, or maybe even force, the new Trump administration to get rid of this very destructive regulation. On January 20, 2017 — Inauguration Day of the Trump 45 administration — we filed a Petition for Reconsideration of the EF. The Petition was based on scientific research that had come out during the time after the 2009 EF, and that undermined what was already the slim basis for the finding of endangerment.

But then, sadly, the first Trump administration did not make this issue one of its priorities. In the period from 2017 to 2020, we filed seven Supplements to our initial Petition, each time using citations to new information or research further undermining the basis for the EF in an effort to get EPA’s attention. But the first Trump administration never undertook the effort to repeal it.

Then Biden came into office, and issued a final rejection of our Petition for Reconsideration in 2022. We proceeded to appeal that rejection to the D.C. Circuit. Actually, we had no illusions that a Biden EPA would undo the EF, even if ordered to reconsider it by the D.C. Circuit or Supreme Court. However, we did think that by keeping the issue alive during the four Biden years, we could increase the chance that a new Republican administration in 2025 (whether Trump or someone else) would undertake the task, either on its own initiative or by compulsion from a court.

As it happened, we lost in the D.C. Circuit in 2023, and then got a final rejection in our certiorari petition by the Supreme Court in 2024. But then Trump got re-elected. Apparently, he had been paying attention to this issue during his four years out of office, perhaps in part as a result of our efforts. Promptly upon taking office for his second term, Trump issued an Executive Order directing the new EPA administrator to look into this issue. In July 2025, EPA Administrator Lee Zeldin initiated the formal process of repealing the EF. The EPA document initiating the reconsideration specifically stated that the Biden administration rejection of our Petition had been reversed! The comment period on the proposed repeal is currently open through September 22.

Our Comment focuses on two aspects of the supposed scientific basis for the EF that are just completely wrong, and without which the EF cannot stand. The first is the reliance of the EF on supposed evidence of what is called the “Global Average Surface Temperature” (GAST) records allegedly showing strong warming from the late 19th century to the early 21st; and the second is supposed evidence of increasing severe weather events, allegedly arising from warming derived from increased CO2 in the atmosphere.

Unfortunately for the EF, the GAST records are useless for any policy purpose, because they have been substantially created not by actual observations but by infilling (aka fabrication) by bureaucrats. From our Petition, pages 5-6:

The scientific basis for the 2009 GHG Endangerment Finding has been shown to have been built on quicksand because the Global Average Surface Temperature data have been, and continue to be, totally fabricated because, for a very significant portion of the planet and a substantial portion of the time periods in question, there was no surface temperature data whatsoever. This fabrication was done to support for global warming claims and was carried out by all three entities providing GAST data measurement, NOAA, NASA and the UK’s Hadley CRU. . . . 

For example, the Southern Hemisphere is 80.9% ocean, and prior to the year 2000 there was virtually no credible monthly ocean surface temperature data whatsoever for this massive area. This fact alone means that until 2000, the surface temperature record had virtually no data whatsoever for over 40% (50%*0.809) of the planet. But the situation is even worse than that because for much of the quoted surface temperature record since about 1850, there are virtually no credible monthly surface temperature data outside of North America and Europe.

Lots more detail on this issue is available in the Comment.

As bad or worse was EPA’s reliance in making the EF on claims of supposedly increasing and worsening severe weather events. Overwhelming amounts of research, ongoing since the 2009 EF, show these claims to be completely false. Our Comment contains multiple quotes from EPA’s EF documenting their reliance on worsening severe weather as a critical source of the claimed “endangerment” from atmospheric CO2. From our Comment, page 11, quoting the text of EPA’s EF:

“The evidence concerning how human-induced climate change may alter extreme weather events also clearly supports a finding of endangerment” [74 Fed. Reg.] at 66497:3. An entire subheading of the Endangerment Finding, Section IV(B)(1)(c), is devoted to explaining that the “Effects on Extreme Weather Events” “Endanger Public Health.” Id. at 66525:2. There is simply no question but that EPA grounded the 2009 Endangerment Findings in part on the claim that GHG emissions cause increased frequency and severity of extreme weather events.

The Comment then at pages 12-14 cites the latest research and data on every sort of extreme weather event — heat waves, tornadoes, hurricanes, droughts, floods, wild fires, snowfall, and so forth. The supposedly worsening trends in every case are missing from the data. You would think that the Biden EPA would have been embarrassed by this as the data continued to accumulate, but these people are beyond embarrassment.

I encourage readers to read the entire Comment, which is 20 pages long, for much more detail. Even at that, we did not by any means try to cover the whole range of arguments for rescinding the EF, but only a subset of the most important pieces of scientific data and logic that invalidate it.

Undoubtedly EPA will get some thousands of comments from various grifters and fake “scientists” living off government handouts, arguing for retaining the EF. If you happen to review any of those, see if they have any answer to the these two main points that we made. I don’t think that any good answer exists.

Many thanks to my colleagues Harry MacDougald and Jim Wallace, who did the main work in drafting this Comment. They were kind enough to let me participate.

EPA Finally Proposes To Rescind The Endangerment Finding

July 29, 2025/ Francis Menton @ Manhattan Contrarian

It’s been a long time coming. But today the EPA, through its Administrator Lee Zeldin, finally began the formal process of rescinding the so-called “Endangerment Finding” (EF). The EF is the 2009 regulatory action by which the Obama-era EPA purported to determine that CO2 and other greenhouse gases constitute a “danger to human health and welfare.” That Finding then formed the basis for all subsequent federal greenhouse gas regulations, including efforts of Obama and Biden regulators to force the closure of all power plants running on coal and natural gas, and to mandate increased vehicle mileage to levels that no internal combustion engine could meet.

EPA initiated the rescission process today by means of an announcement in a speech by Zeldin, who appeared at an event in Indianapolis, and also through this document, titled “Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards.” The document looks to be about a couple of hundred pages long, although it’s hard to know exactly, because the pages aren’t numbered.

Long time readers here will know that I have been an active participant in efforts, beginning when President Trump first took office in 2017, to get the EF rescinded. Immediately after Trump’s inauguration in January 2017, co-counsel Harry MacDougald and I filed a Petition to EPA, on behalf of the Concerned Household Electricity Consumers Council (CHECC), seeking the rescission. Here is a post I wrote in April 2017, describing the initiation of the petition process, and also linking to our Petition. But during Trump’s first term, despite the critical importance of the EF in supporting all of the burdensome “climate” regulations, EPA never undertook the rescission process. We continued to press the point, filing some seven supplements to our Petition during the four years of Trump’s first term. For example, here is a post from July 2017 announcing the first of the Supplements to our Petition, based on new research at the time.

Ultimately our Petition was denied in 2022 by the Biden EPA. We then appealed that denial to the DC Circuit, where our appeal was denied in 2023, and to the U.S. Supreme Court, where certiorari was denied in 2024.

Well, the proposal in today’s document will reverse the denial of our Petition. I can’t give you a page cite, but this quote is from the page of the EPA document that contains footnote 15:

If finalized, this action would also rescind denial[] of petitions for reconsideration of the Endangerment Finding in 2022 . . . entitled “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Action on Petitions,” 87 FR 25412 (Apr. 29, 2022). . . .

Vindication!

As to the grounds for the prospective rescission, EPA appears ready to take on both the legal and scientific bases of the EF. As to the legal analysis, the following quote comes from the page preceding footnote 42:

Section IV.A of this preamble describes our primary proposal to rescind the Endangerment Finding by concluding that CAA section 202(a) does not authorize the EPA to prescribe standards for GHG emissions based on global climate change concerns or to issue standalone findings that do not apply the statutory standard for regulation as a cohesive whole. If finalized, this proposal would require rescinding the Endangerment Finding and resulting regulations because we lacked statutory authority to issue them in the first instance. . . . 

Next, we propose that the Nation’s response to global climate change concerns generally, and specifically whether that response should include regulating GHG emissions from new motor vehicles and engines, is an economically and politically significant issue that triggers the major questions doctrine under UARG and West Virginia, and that Congress did not clearly authorize the EPA to decide it by empowering the Administrator to “prescribe … standards” under CAA section 202(a). Throughout this section, we propose that the Endangerment Finding relied on various forms of Chevron deference to depart from the best reading of the statute and exceeded the EPA’s authority in several fundamental respects, any one of which would independently require rescission to conform to the best reading of the law.

On the subject of “climate science,” the following quote comes from the document’s pre-amble:

[T]he Administrator has serious concerns that many of the scientific underpinnings of the Endangerment Finding are materially weaker than previously believed and contradicted by empirical data, peer-reviewed studies, and scientific developments since 2009.

Then, on the page with footnote 87 there begins a lengthy section titled “Climate Science Discussion.” The gist of this entire section is that the alarmists have not proved their claims. There are lengthy paragraphs reviewing data on all the major “extreme weather” claims, and citing work showing no increasing or accelerating trends in things like hurricanes, tornadoes, wildfires, sea level and the like. Here is a paragraph that reiterates a theme of our Petition, namely that the amount of human caused global warming cannot be separated from what may be caused by natural factors:

The Administrator is also troubled by the Endangerment Finding’s seemingly inconsistent treatment of the nature and extent of the role human action with respect to climate change. The Endangerment Finding attributes the entirety of adverse impacts from climate change to increased GHG concentrations, and it attributes virtually the entirety of increased GHG concentrations to anthropogenic emissions from all sources. 

But the causal role of anthropogenic emissions is not the exclusive source of these phenomena, and any projections and conclusions bearing on the issue should be appropriately discounted to reflect additional factors. Moreover, recent data and analyses suggest that attributing adverse impacts from climate change to anthropogenic emissions in a reliable manner is more difficult than previously believed and demand additional analysis of the role of natural factors and other anthropogenic factors such as urbanization and localized population growth (2025 CWG Draft Report at 14-22, 82-92).

The process here will likely take until around the end of this year for EPA to formally enact the rescission. And then the legal battles begin — first to the DC Circuit, and then to the Supreme Court. The big question: Can the administration get this process to the Supreme Court in time to avoid a reversal of this whole regulatory effort by a Democratic administration that could be elected in 2028? I would think that if the Supremes have upheld this effort of Trump’s EPA before January 2029, it will be very difficult for a subsequent administration to reverse. On the other hand, if the status as of January 2029 is that the DC Circuit has struck down EPA’s rescission and the matter is pending in the Supreme Court, it would be much easier to attempt a reversal. But the ongoing failure of “net zero” energy transition plans in places like New York, California, Germany and the UK may make reversal a dead letter anyway.

I want to offer my thanks and gratitude to the small band of independent thinkers who have fought this lonely battle all these years, in the face of the billions of dollars at the hands of the climate industrial juggernaut. For particular mention: the members of CHECC (including its moving force, James Wallace); my co-counsel Harry MacDougald; the few think tanks that have taken on this issue, including the Competitive Enterprise Institute (who filed a Petition for rescission of the EF along with ours) and the Heartland Institute; the CO2 Coalition, including its Chair Will Happer and Executive Director Greg Wrightstone; CFACT; the Global Warming Policy Foundation (I serve on its Board); and Anthony Watts and Charles Rotter at Watts Up With That. I’m sure that there are a few that I have forgotten. Congratulations to all!

Reexamining the Obama Era Endangerment Finding

By Paul Driessen

The supposed climate cataclysm consensus is disintegrating under growing pressure from reality. Green energy subsidies, regulations and mandates are crumbling. Greenpeace has been hit with a $667-million judgment for conspiracy, defamation, trespass, and fostering arson and property destruction. 

The supposed climate cataclysm consensus is disintegrating under growing pressure from reality. Green energy subsidies, regulations and mandates are crumbling. Greenpeace has been hit with a $667-million judgment for conspiracy, defamation, trespass, and fostering arson and property destruction. 

Last year’s “Buy a Tesla – save the planet” placards have been exchanged for “mostly peaceful” protests based on “Torch a Tesla – save our democracy” and infernos of toxic pollution and “carbon” emissions. 

Even higher anxiety is battering climate activists from the Lee Zeldin Environmental Protection Agency’s review of EPA’s 2009 “Endangerment Finding” (EF) – the foundation and justification for restrictive Obama and Biden Era standards and regulations on permissible electricity generation, automobiles, furnaces, home appliances and much more. 

Humans and animals exhale carbon dioxide when they breathe, combustion processes also emit CO2, and during photosynthesis plants absorb CO2 and emit oxygen. More atmospheric CO2 helps plants grow better, faster and with less water. Nearly all life on Earth depends on this process. It’s basic science. 

That’s why the Clean Air Act doesn’t include carbon dioxide in its list of dangerous pollutants, along with carbon monoxide, lead, nitrogen dioxide, ground-level ozone, particulates and sulfur dioxide. 

But fossil-fuel-hating activists blame CO2 for the alleged “climate crisis” – and in Massachusetts v. EPA the US Supreme Court said EPA could regulate CO2 emissions if the agency found that they “cause or contribute” to “air pollution” that may be “reasonably anticipated” to “endanger public health or welfare.” 

The Obama EPA quickly determined that they did and issued an Endangerment Finding that gave the agency effective control over America’s energy, transportation, industries, furnaces and stoves– indeed, over almost every facet of our lives and living standards – to help “fundamentally transform” the nation. 

In formulating its decision, EPA did no research of its own, relied heavily on GIGO computer models and outdated technical studies, dismissed the clear benefits of rising atmospheric CO2 levels, and ignored studies that didn’t support its decision. EPA even told one of its own experts (who had offered evidence and analyses contradicting official claims) that “the administration has decided to move forward [on implementing the EF] and your comments do not help the legal or policy case for this decision.” 

That alone is a compelling reason for reversing the Endangerment Finding. But other realities also argue convincingly that EPA’s 2009 action should be nullified. 

First, Massachusetts v. EPA has been sidelined, rendered irrelevant or effectively reversed. 

West Virginia v. EPA (2022) ruled that federal agencies may not violate the “major questions doctrine,” which holds that, in the absence of clear congressional direction or authorization, agencies may not make decisions or issue regulations “of vast economic and political significance.” 

The Obama EPA had no clear congressional language or authorization to declare that carbon dioxide is a pollutant that would likely “endanger public health or welfare.” The Supreme Court’s minimal guidance in Massachusetts underscores the absence of congressional intent or direction. The process EPA used in rendering its predetermined finding demonstrates how little actual science played a role. And the enormous significance and impact of the EF decision and subsequent regulations can hardly be disputed. 

Similarly, the SCOTUS 2024 ruling in Loper Bright v. Raimondo overturned the court’s 1984 decision in Chevron v. NRDC and ended judicial deference to government agencies (the “Chevron doctrine”). Bureaucrats may no longer devise “reasonable interpretations” of unclear statutory language if those interpretations would significantly expand regulatory powers or inflate private sector costs. 

These two decisions mean EPA had no authority to convert plant-fertilizing, life-giving carbon dioxide into a dangerous, health-threatening pollutant. 

Second, reams of post-2009 studies and analyses show that CO2 is hugely beneficial to forests, grasslands and croplands – and that CO2 and other greenhouse gases (GHGs) have not replaced the powerful, complex, interconnected natural forces that have always driven global warming, climate change, ice ages, Little Ice Ages, and extreme weather events. EPA ignored this in 2009. 

Others demonstrate that there is no climate crisis, nothing unprecedented in today’s climate and weather, and nothing modern industrialized societies cannot cope with far more easily than our ancestors did.  

(See Climate Change Reconsidered II, CO2 Coalition studies, NOAA hurricane history, US tornado records, and studies the Trump EPA will undoubtedly consult during its EF reconsideration.)  

Third, our energy, jobs, living standards, health, welfare, national security and much more depend on fossil fuels – for energy and for pharmaceuticals, plastics and thousands of other essential products that are manufactured using petrochemical feedstocks. 

Fourth, China, India and other rapidly developing nations also depend on fossil fuels – and in fact are increasing their coal and petroleum use every year – to build their industries and economies and improve their people’s health and living standards. They are not about stop doing so to appease those who insist the world faces a climate crisis. That means even eliminating coal, oil, gas and petrochemical use in the United States would have no effect on global GHG emissions. 

Finally, the primary threats to human and planetary health and welfare come not from using fossil fuels – but from eliminating them, trying to switch to “clean, green, renewable” energy, and no longer having vital petrochemical products. 

As Britain and Germany have shown, switching to intermittent, weather-dependent wind and solar energy with backup power raises electricity prices to 3-4 times what average Americans currently pay. Industries cannot compete internationally, millions lose their jobs, living expenses soar, and families cannot afford to heat their homes in winter or cool them in summertime. 

Thousands die unnecessarily every year from heatstroke, hypothermia, and diseases they would survive if they weren’t so hot, cold or malnourished. 

In poor countries, millions die annually from indoor pollution from wood and dung fires, from spoiled food due to lack of refrigeration, from contaminated drinking water due to the absence of sanitation and treated water, and from diseases that would be cured in modern healthcare systems. 

The common factor in all these deaths is the absence of reliable, affordable energy, largely imposed by climate-focused bureaucrats who finance only wind and solar projects in poor nations. 

Wind and solar power, electric vehicle and grid-backup batteries, and associated transmission lines require metals and minerals mining and processing on unprecedented scales, power-generation facilities blanketing millions of acres of croplands and wildlife habitats, and the disposal of gigantic equipment that breaks or wears out quickly and cannot be recycled. 

Reliance on wind, solar and battery power also means blackouts amid heatwaves and cold spells, cars stalled in snowstorms and hurricane evacuations – and thus still more deaths. 

A slightly warmer planet with more atmospheric CO2 would be greatly beneficial for plants, wildlife and humanity. A colder planet with less carbon dioxide would significantly reduce arable croplands, growing seasons, wildlife habitats and our ability to feed humanity. 

EPA’s 2009 Endangerment Finding ignored virtually all these realities. EPA Administrator Lee Zeldin’s reexamination of that decision must not repeat that mistake. 

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books and articles on energy, climate change, economic development and human rights.

The Process Of Rescinding The Endangerment Finding Has Begun

February 26, 2025/ Francis Menton @ Manhattan Contrarian

As discussed in a couple of recent posts here and here, the so-called Endangerment Finding (EF) was an EPA regulatory action early in the Obama Administration (December 2009) that now provides the foundation for all government efforts to restrict and suppress the use of hydrocarbons in our economy. In one of his first day Executive Orders (“Unleashing American Energy”), President Trump directed the incoming EPA Administrator to submit, within 30 days, “recommendations to the Director of OMB on the legality and continuing applicability of the Administrator’s findings.” Lee Zeldin was then confirmed and sworn in as EPA Administrator on January 29; but the 30th day after the EO, February 19, passed without any public news about a recommendation on the EF.

Today there is news. Apparently The Washington Post was the first outlet to break the story; but that piece is behind their paywall, so I won’t link to it. Fortunately, multiple outlets not behind paywall promptly posted slightly rewritten versions of the WaPo story. Here is a version from Politico, and here is a version from the Associated Press as it appeared in the Atlanta Journal-Constitution.

To no one’s surprise, the news is that Zeldin has recommended reconsideration of the EF. Apparently the recommendation was made a few days ago in a private memorandum. Here is the AP/AJC version:

In a potential landmark action, the head of the Environmental Protection Agency has privately urged the Trump administration to reconsider a scientific finding that has long been the central basis for U.S. action against climate change. In a report to the White House, EPA Administrator Lee Zeldin called for a rewrite of the agency's finding that determined planet-warming greenhouse gases endanger public health and welfare.

If this was a private memorandum, how did the story turn up in The Washington Post and other outlets? The answer is, of course, anonymous leaks. The AP/AJC article says there were “four people who were briefed on the matter but spoke to The Associated Press on condition of anonymity.” No surprise there — I would expect that 90% or more of the holdover staff at EPA are hostile to the new administration and happy to do whatever they can to undermine it. But note this from a little further down in the same story:

Trump, at a Cabinet meeting Wednesday, said Zeldin told him he is moving to eliminate about 65% of the EPA's workforce. “A lot of people that weren’t doing their job, they were just obstructionist," Trump said.

Trump’s EPA Administrators should have done that in his first four year term. But it’s never too late.

Perhaps most notable about the news stories is the haughty and dismissive reaction of the usual suspects on the left. For example, Politico gets quotes from David Doniger of the Natural Resources Defense Council and Vickie Patton of the Environmental Defense Fund:

“This decision ignores science and the law,” David Doniger, senior strategist and attorney for climate and energy at the Natural Resources Defense Council, said in a statement. “Abdicating EPA’s clear legal duty to curb climate-changing pollution only makes sense if you consider who would benefit: the oil, coal, and gas magnates who handed the president millions of dollars in campaign contributions.” . . . Vickie Patton, the Environmental Defense Fund’s general counsel, said any move to undo the finding “would be reckless, unlawful, and ignore EPA’s fundamental responsibility to protect Americans from destructive climate pollution. We will vigorously oppose it.”

Clearly, the environmental groups and Democrat-led states will do everything they can to oppose the roll-back of the EF; and they have essentially infinite funds to litigate. So will the rescission be a difficult thing to do, and/or likely to fail in court? Much of the discussion in the two linked pieces, and in others I have read, dwells on the heavy lift necessary to undo a regulation that has gone through the “notice and comment” rule-making process. For example, a Bloomberg piece here (behind paywall) presents rescission of the EF as an enormous challenge:

It could take years for the EPA to go through a required rulemaking process to unwind the endangerment finding, and even then, it might not survive inevitable legal challenges.

They’re trying to scare the administration off, but I don’t think they are right, or that it will work. First, the idea that the rule-making process will “take years” is ridiculous. Yes, it is a cumbersome process. But the Obama people took office on January 20, 2009, went through the full rule-making process, and published the EF in final form on December 15, 2009 — less than 11 months later. I don’t know any reason why the Trump people can’t meet the same schedule, or even improve on it by a few months.

Second, the scientific papers to use to support the rescission are all easily at hand. A couple of junior people with access to the internet and Google can easily come up with several hundred papers published since 2009 and supporting the no-danger position. As I laid out in my January 26 post, most important are papers showing no increasing trends in severe weather events (hurricanes, tornadoes, droughts, floods, wildfires, etc.). There are very many of these.

Lacking any convincing evidence of increases in severe weather, the enviros are left with only a claim that gradual warming over the course of the next century will be some kind of big problem. But EPA can respond that the costs and risks of a forced energy transition to an untested system pose far, far greater dangers to human health and welfare: blackouts in the dead of winter when all heat is mandated to be electric; massive fires at huge grid scale battery installations used to back up wind and solar electricity; toxic gases from such fires imperiling large urban populations; leaks and explosions impacting hydrogen infrastructure; electric cars and buses running out of charge on freezing cold days and stranding the occupants; and so on and on. How about the risk of large numbers of people losing access to electricity or to home heat or to automobile transportation because they can’t afford the cost?

The point of all these things is that they are not a question of the “science” of global warming. They are a question of making a judgment call trading off one set of dangers and risks against another. No amount of appeals to the authority of “scientists” preaching global warming alarm can even address the question of the risks from the forced adoption of the unproven new energy technologies.

So get to work, EPA! I want to see the EF gone by Thanksgiving. Then we’ll have something to really be thankful for.

How To Rescind The Endangerment Finding In A Way That Will Stick

January 26, 2025/ Francis Menton @ Manhattan Contrarian

As discussed in my previous post, one of President Trump’s first-day Executive Orders — the one entitled “Unleashing American Energy” — directed a reconsideration of EPA’s so-called “Endangerment Finding” (EF) of 2009. The EF is the EPA regulatory action where it claimed to determine that CO2 and other “greenhouse gases” qualify as “pollutants” under the Clean Air Act because they are a “danger to public health and welfare.” President Trump’s January 20 EO directs that EPA, within 30 days, submit “recommendations to the Director of OMB on the legality and continuing applicability of the Administrator’s findings.”

Since the EF is the foundation underlying all the Biden-era regulations restricting and suppressing fossil fuels, you can be sure that any attempt to eliminate it will be met with a full-bore litigation attack from the forces of the crazy left. Can the EF really be rescinded in a way that will stand up to these attacks?

Absolutely, it can. Let me address a few of the issues.

Massachusetts v. EPA

This is the Supreme Court’s 2007 decision that held that EPA was required to make a determination as to the status of CO2 and other greenhouse gases as “pollutants” under the Clean Air Act. Here is a link to the Supreme Court’s opinion. Some commenters have suggested that Mass v. EPA must be reversed before the EF can be undone.

I disagree. I’m not saying that Mass v. EPA is a model of clarity, and there is some language in it that would suggest the opposite. However, I think that the language at the very end of Justice Stevens’s majority opinion is the holding:

We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPAís actions in the event that it makes such a finding. . . . We hold only that EPA must ground its reasons for action or inaction in the statute.

Thus Mass v. EPA did not determine that CO2 was a “pollutant” as defined in Section 202 of the Clean Air Act, but only directed EPA to determine whether it was or was not. Thus a new well-reasoned determination by EPA that CO2 and the other GHGs are not pollutants would not violate that case.

West Virginia v. EPA

The other important Supreme Court decision bearing on the EF is West Virginia v. EPA, the 2022 decision where the Supreme Court held that EPA’s Clean Power Plan was beyond its regulatory authority under the Clean Air Act. The basis for the Court’s decision was what it called the Major Questions Doctrine, by which it held that a “transformative expansion” of EPA’s regulatory power would require a clear direction from Congress, which had not been given.

In 2024, despite West Virginia v. EPA, and without any further clear direction from Congress, EPA went ahead and finalized two gigantic new regulations to restrict use of fossil fuels, one regarding power plants and the other regarding automobiles. They essentially decided to dare the Supreme Court to try to stop them (much like Biden with his repeated efforts to forgive student loans).

West Virginia v. EPA did not explicitly overrule Massachusetts v. EPA, but the two are fundamentally in tension. The big difference is that the Court that decided Massachusetts v. EPA has since been largely transformed in personnel. Of the nine justices on the Court in 2007, only three remain — Roberts, Thomas and Alito — and all of them dissented in Mass v. EPA. The five justices in the majority plus Scalia have been replaced by three conservatives (Gorsuch, Kavanaugh and Barrett) and three liberals.

On today’s Court, I think it highly likely that a majority will uphold a well-reasoned rescission of the EF, and will not think it necessary to overrule Mass v. EPA.

Substance of the rescinding determination

Three main points need to be made in an EPA regulatory action rescinding the EF: (1) Empirical evidence accumulated since the original EF invalidates the finding and makes it impossible to conclude that CO2 and other GHGs constitute a “danger” as required by the statute; (2) due to huge increases since 2009 in CO2 and other GHG emissions outside the U.S. and thus outside the ability of EPA to regulate, no regulations promulgated by EPA could have any meaningful impact on the overall atmospheric concentrations of the gases, and (3) efforts by EPA to control the climate by restricting CO2 and other GHGs, by contrast, would almost certainly have drastic adverse effects on public health and welfare by, for example, destabilizing the electrical grid and causing blackouts, driving up the cost of electricity or mobility, bringing about massive battery fires and explosions, and lots of other such things.

Only the first of these three points deals with the “science” of whether GHGs do or do not cause any significant global warming. Most important is that this argument needs to be written carefully to not take on more than needs to be taken on. To rescind the EF, EPA does not need to contend that GHGs will not or cannot cause any global warming. Rather, they can put the burden of proof on the other side to show that GHGs emitted under EPA’s regulatory jurisdiction will inevitably cause dangerous warming. EPA need only conclude that there is no sufficient proof of that.

Framed in that way, this is not a complicated or difficult task. There are hundreds of scientific papers in the peer reviewed literature since 2009 accumulating empirical evidence that the dangers predicted 15 years ago have not happened. For example:

• There have been no upward trends in hurricanes, droughts, floods, tornadoes, wild fires, or other dangerous weather events.
• Sea level has not risen beyond the slow rate of rise over the prior century.
• Sea ice has not declined as predicted. The Greenland and Antarctic ice sheets have not meaningfully changed.

EPA can just create lists of dozens or hundreds of such scientific papers, and perhaps add a quote of a line or two from the abstract for each.

Points (2) and (3) are actually more important to the rescission than the point about the science of atmospheric warming. Trying to replace the fossil fuel energy system with something untried and untested actually does pose many real and immediate dangers — far more real, immediate, and dangerous than anything that might result from a hypothetical warming of a degree or two a hundred years from now. 

California is only up to about 30-40% of its electricity from wind and solar, and yet has suffered multiple instances of rolling blackouts. The extent of these blackouts has been relatively small only because California has the ability to import fossil-fuel-generated power from neighboring states like Arizona and Nevada. If EPA eliminates that safety valve by banning fossil fuel power plants in all the states, the blackouts will become lengthy and catastrophic. Similarly, batteries are proposed as the backup for intermittency of wind and solar generation. 

California and New York have both begun building massive battery farms to serve this role, although neither state has yet reached nearly 1% of the battery capacity they would need to back up a predominantly wind/solar generation system. But even with that small amount of batteries, both have suffered massive and explosive fires at their battery facilities. California had such a fire just last week at the facility known as Moss Landing in Monterey County. This was the fourth large fire at the Moss Landing facility over the past few years.

I actually have a high degree of confidence that a reconsideration of the EF will be successful. Likely, that will sweep away all of the restrictions on fossil fuels that have been put in place via regulation during the Biden years. One more thing: Once CO2 and GHGs are declared to no longer by “pollutants,” all of the billions of dollars of government grants under the Inflation Reduction Act to “reduce GHG pollution” can be suspended and never spent.

UPDATE, January 27, 2025:

Some commenters raise the issue of whether something in the Inflation Reduction Act of August 2022 may have changed the playing field. I don’t think so. The summary of the reason is that the IRA does not amend Section 202 of the Clean Air Act, let alone even attempt to provide the clear direction from Congress necessary under West Virginia v. EPA to enable EPA to transform the economy by severely restricting CO2 (let alone other GHGs).

Here is the text of the IRA from the Congressional website. You need to go all the way to the end, in Sections 60101 to 60108, to find the language that people are talking about. These sections of the IRA add new sections 132, et seq., to the Clean Air Act, which new sections provide funding and grants (aggregating in the tens of billions of dollars) for various sorts of “greenhouse gas” reduction programs. The language in question appears in a definition of the term “greenhouse gas,” which is repeated word for word in each of the sections:

“GREENHOUSE GAS. — The term ‘greenhouse gas’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, per fluorocarbons, and sulfur hexafluoride.”

Thus they have, in a definition, applied the word “pollutant” to the six gases. But here’s what they did not do:

• They did not repeal or modify in any way Section 202(a)(1) of the Clean Air Act. That section does not give EPA blanket authority to regulate any and all substances that may get the label “pollutant,” but only “any air pollutant . . . which in [the Administrator’s] judgment cause [sic], or contribute [sic] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Thus, the statute remains such that there must be an endangerment finding to support regulation at least of CO2 (the other five gases have different issues).
• They did not make any legislative finding that any of the six gases, and particularly CO2, causes or may be anticipated to cause any danger to human health and welfare. (This is a much bigger deal than you might think, because all kinds of legislative findings are used to make completely false determinations that the courts then will not second-guess.)

Also, note that the IRA was a so-called “reconciliation” bill that was able to clear the Senate with only 51 votes (one of which was a tie-breaker from VP Harris) only because it was not allowed to contain anything but financial and budgetary provisions. Thus an amendment to the Clean Air Act to give EPA explicit new authority to regulate the six GHGs would clearly have been non-germane and not allowed into the statute.

Our excellent commenter Beta Blocker points to an article from the Environmental Law Reporter from 2023 titled “The Clean Air Act Amendments of 2022: Clean Air, Climate Change, and the Inflation Reduction Act,” by Greg Dotson and Dustin Maghamfar (D&M). In the article, D&M take the position that the sections of the IRA that amended the Clean Air Act “to make explicit that GHGs are air pollutants and that reducing them is a core objective of the Act.” In my opinion, that is D&M engaging in wishful thinking and attempting to create a record, not found in the statute, to try to “Trump-proof” the EF.

Note that a footnote on the first page of the article identifies Dotson and Maghamfar respectively as having been the Chief Counsels to the Senate and House Committees that developed the language of the Clean Air Act amendments included in the IRA. In other words, they are giving their partisan version of something they were trying to sneak through in the IRA which the rules of reconciliation specifically did not allow to be included.

Finally, there is no way that these definitions of the term “greenhouse gas” constitute the kind of “clear direction” from Congress for EPA to engage in “transformational change” of the economy, that would be required for EPA to suppress the use of fossil fuels in the economy.

So I say to Messrs. Dotson and Maghamfar, good try, but the odds of your sneaky gambit succeeding in saving the EF are slim to none.

The Endangerment Finding: It Looks Like Trump 2.0 Will Be Much More Fun Than Trump 1.0

January 22, 2025 Francis Menton @ Manhattan Contrarian

The first couple of days of the new Trump administration have seen the President sign a blizzard of Executive Orders. These provide more material than a humble solo blogger like myself can ever comment on comprehensively. So I’ll just have to start with one particular item that I am deeply familiar with: the EPA’s so-called Endangerment Finding of December 2009.

I have seen differing counts of the number of Trump’s first-day EOs. ABC News here counts 42. One of the most consequential has the title “Unleashing American Energy.” There is a large amount of important material in this EO. In overall summary, it directs the reversal of all of the Biden administration efforts to restrict and suppress the production and development of America’s energy resources. But one provision, I would argue, is important above all the rest. That is Section 6(f), which directs a reconsideration of the so-called Endangerment Finding (EF) of December 2009. That provision of the EO reads as follows:

(f)  Within 30 days of the date of this order, the Administrator of the EPA, in collaboration with the heads of any other relevant agencies, shall submit joint recommendations to the Director of OMB on the legality and continuing applicability of the Administrator’s findings, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” Final Rule, 74 FR 66496 (December 15, 2009).

This provision is of overriding importance because, as long as the Endangerment Finding remains on the books, it gives a license to the courts, and to activist left-wing judges anywhere in the federal system, to enjoin and undo all the other de-regulatory efforts of this and other energy-related EOs. However, if the EF is rescinded with a well-reasoned and well-supported basis, then all the other energy-related initiatives will have a far clearer path to success.

Background on the EF will help readers to understand its significance. Back in the early 2000s, as the climate scare was cranking up, activists got the idea of trying to get the courts to compel EPA to regulate (and suppress) fossil fuels through getting CO2 declared a “pollutant” under the Clean Air Act. A group of states, led by Massachusetts and New York, petitioned EPA to declare CO2 a “pollutant,” which would then give EPA the ability, and arguably even the obligation, to regulate CO2. Since CO2 is an inherent product of fossil fuel combustion, “regulation” of CO2 emissions could include anything up to and including banning fossil fuel combustion entirely if EPA so decided. Such a ban would outlaw 80+% of the current U.S. energy system.

Those opposing this gambit responded that the Clean Air Act was never intended to deal with CO2, which is colorless and odorless and non-toxic and is an inherent product of the large majority of energy production and consumption. But the language of the Clean Air Act, passed in 1970, was of course vague enough to give an opening. Here is the relevant language of Section 202(a)(1) of the Clean Air Act as it existed at the time the Massachusetts/New York case made it to the Supreme Court:

“The [EPA] Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare … .”

Other similar provisions gave the EPA Administrator comparable authority to regulate “pollutants” from sources other than motor vehicles.

So the statute defines “pollutant” to mean anything that, in the “judgment” of the EPA Administrator, “may reasonably be anticipated to endanger public health or welfare.” During the administration of George W. Bush, despite the states’ petition, EPA declined to make such a finding as to CO2. So Massachusetts, New York, and co-plaintiffs sued to try to compel EPA to make that finding. In 2007, that case reached the Supreme Court. Here is the Court’s Opinion, issued under the caption Massachusetts v. EPA. In summary, the Court ordered EPA to make a determination whether CO2 was or was not a “pollutant,” in the sense of constituting a “danger to public health or welfare.”

To its shame, the GW Bush people punted this determination over to the Obama administration, which then took office in 2009. The Obama people got right to work, and to no one’s surprise, issued a long regulatory document in December 2009 finding that CO2 did indeed pose a danger to human health and welfare, and thus was a “pollutant” subject to regulation under the Clean Air Act. This is the document known as the Endangerment Finding, that is referenced and cited in Trump’s EO.

The EF then gave the Obamanauts license to go wild regulating CO2. As one extreme example, the Obama people promulgated what they called the Clean Power Plan, which, by ratcheting down allowable CO2 emissions over time, would have forced the closure of essentially all fossil fuel power plants.

That is where things stood when the Trump 1.0 administration took office in January 2017. I and many others were hopeful that the new administration would roll back many of the destructive anti-energy policies of the Obama people, but at the same time we were wary that any de-regulatory initiatives would get blocked by the courts, using the EF as the basis. After all, if EPA had found CO2 to be a danger to human health and welfare, then how could it fail to take efforts to restrict emissions?

As Trump took office in 2017, it was unclear to us whether the new President or his people had any concept of the drastic significance of the EF. And thus, a group known as the Concerned Household Electricity Consumers Council (CHECC) was formed to petition EPA to rescind the EF. That entity filed a Petition to EPA on January 20, 2017 — the first day of the Trump 1.0 administration. I acted as one of the lawyers for CHECC. Fundamentally, the idea was to bring this issue to the attention of the new Trump EPA and make sure that they paid attention to it. We also presented compelling scientific evidence as to why the idea that CO2 was a “danger” was preposterous.

Somewhat to our surprise, our Petition was then completely ignored. Over the course of four years, we continually tried to get information as to what was going on (with little success), and also filed seven supplements to our Petition, each bringing to bear new scientific articles or evidence making clear that CO2 was not at all a “danger” to human health and welfare. But through the entirety of Trump 1.0, there was no action on this issue. On January 19, 2021 — that is, one day before leaving office — the Trump EPA denied our Petition with a one-paragraph summary dismissal. The incoming Biden administration then took another year and three months and came out with a much longer and more devious denial of our Petition in April 2022.

Many readers here are undoubtedly familiar with the saga of our efforts after that denial. We could have just given up, but we had the idea that if we saw this through the D.C. Circuit and the Supreme Court, we might get a decision compelling a reconsideration of the EF just in time for a new Trump administration to take office. With such a decision, the Trump people could no longer ignore this issue, and would be forced to look at it. However, our efforts were unsuccessful in both the D.C. Circuit and Supreme Court. Our petition for review to the U.S. Supreme Court was denied on December 11, 2023. For those interested, here is a link to the court dockets of the D.C. Circuit and Supreme Court for these cases.

During the months since the recent election, I have been involved in many discussions about whether a new petition process should be started to try to get the EF rescinded this time around. And now suddenly,, upon entering office, Trump 2.0 immediately is taking on the Endangerment Finding, without any new petition getting filed at all. Hallelujah! Somebody over there must finally understand the importance of this. Maybe even the Donald himself! I would like to think that our previous efforts had something to do with educating Trump and his people, although I have no way of knowing that.

The job of rescinding the EF does not have to be difficult. The EF itself is totally full of holes. All EPA has to do to make for a bullet-proof rescission is to cite some dozens of scientific papers in the fifteen years since the EF that collect evidence contradicting the hypothesis of catastrophic CO2-caused warming. Lots of very knowledgeable people stand ready to help, including the members of the CO2 Coalition, which is a collection of eminent scientists that consider the EF to be thoroughly flawed.

I don’t mean to be overly optimistic, but I’ll make this prediction: If the EF is rescinded with a well-reasoned regulatory action, the courts will have little to no ability to stop the Trump roll-back of all the Obama/Biden restrictions on fossil fuels and energy transition. And after four years in which essentially all of those restrictions have been undone, and in which the EPA has been swept clean of climate activists, the ability of the government ever again to try to force an unwanted energy transition will be gone for good.

UPDATE, January 23:

I thought it would be appropriate to add to this post a word of thanks for those who participated in our effort from 2017 to 2023 to try to get a reconsideration of the Endangerment Finding. These people and organizations included:

(1) Jim Wallace. Jim was the lead author of several scientific papers that formed the principal basis for the challenge to the EF. The gist of these papers was that the existing empirical evidence was insufficient to conclude that greenhouse gases including CO2 had had a statistically significant impact on global temperatures, after accounting for natural factors like solar irradiation, volcanoes and ocean currents. (Note that we never argued that CO2 does not cause any warming, or that evidence disproved any relationship between CO2 and temperatures, but only that the claim that greenhouse gases including CO2 were causing dangerous warming was unproved and could not be proved with existing evidence.)

(2) Co-authors with Jim Wallace on the scientific papers included Joseph D’Aleo (of the icecap.us website), John Christy (of the University of Alabama at Huntsville), and Craig Idso (of the co2science.org) website.

(3) Jim Wallace also became one of the members of CHECC and helped round up a motley group of co-members. Joe D’Aleo also joined as a member of CHECC.

(4) Harry MacDougald (of the law firm Caldwell, Carlson, Elliott & DeLoach in Atlanta) was my co-counsel. Harry is much more knowledgeable than I about administrative law, and he is the one who made the argument in the D.C. Circuit.

(5) The Competitive Enterprise Institute and FAIR Energy Foundation also joined us as petitioners before EPA to seek reconsideration of the EF. FAIR also joined with us in the appeal process.

All of the above people and organizations participated in this effort on a pro bono basis. If we have made a small contribution to rescuing the country from the Net Zero energy transition disaster, it was well worth it.

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.

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.

EPA And The Electricity Cost Crisis

January 03, 2023 Francis Menton @ Manhattan Contrarian 

Over in Europe, the energy cost crisis, particularly as to electricity, proceeds apace. Germany, deep into its Energiewende (energy transition) that began in 2010, leads the way. Almost all coal and nuclear power plants have been closed in favor of a massive building plan for wind and solar facilities. After a decade of that, for the past couple of years, Germans have suffered consumer retail electricity prices of over 30 euro cents per kWh — close to triple average U.S. consumer rates. On November 25, a German news source called The Local (behind pay wall) quoted an energy market expert named Mirko Scholssarczyk for the proposition that “40 cents per kilowatt-hour was likely to be the new normal in 2023 and 2024, and that prices could even rise to 50 cents per kilowatt-hour after that.”  

Meanwhile, my own post from December 24 cited data from a Belgian think tank called Brueghel showing that Germany was in the process of spending some 260 billion euros, around an astonishing 7% of GDP, to subsidize consumers to keep their electricity bills from going beyond even these ridiculously high levels.

The UK, second after Germany in its rush to what they call “Net Zero,” has its own associated energy cost crisis. The basic policy prescription is the same as in Germany — massive building of wind and solar facilities and suppression of fossil fuels. Although consumer bills are capped by regulation, they went in October to a level approximately three times where they had been a year previously; and they were set to rise again in April, to some five times the previous level, although that may now be temporarily headed off by the UK’s own round of massive taxpayer handouts in the range of a hundred billion pounds or more.

Can we here in the USA learn anything from this folly before it is too late? The answer is, if it is up to our EPA, then no.

Readers may be interested in some back and forth on this topic that has recently occurred in the briefing in the case of Concerned Household Electricity Consumers Council v. EPA, pending in the Court of Appeals for the DC Circuit. 

CHECC is demanding that EPA reconsider the so-called Endangerment Finding of 2009, which is the bureaucratic edict by which those geniuses claimed to determine that CO2 and certain other “greenhouse gases” constitute a “danger” to human health and safety. The Endangerment Finding is the regulatory linchpin that underlies all U.S. government efforts to suppress fossil fuel infrastructure, whether power plants, pipelines, drilling, or anything else. You may recall that I am one of the lawyers for CHECC in this matter.

One of the things that you need to show to bring one of these cases is that the party you represent has what they call “standing.” That means that the party bringing the claim has or will suffer some concrete injury from the regulatory action in question. That’s why our client is a council consisting of electricity consumers. As we state in our Petition and in our Brief, “Each of CHECC’s members is a U.S. citizen and a member of a household that pays electricity bills.”

To demonstrate the effect on consumer electricity bills of the policy mix of wind and solar expansion plus fossil fuel suppression, we cite and describe the experience of Germany. Excerpt, from page 31 of the Brief:

In Europe, Germany began converting to renewables in 2010, and by 2015 30% of its electricity was from wind and solar. . . . The average German household’s electricity rate in 2021 was 32.16 cents per kWh, about triple the average U.S. rate. . . .

So what’s the answer to that, EPA? EPA filed its responsive Brief on December 20. From pages 20-21 of that Brief:

Petitioners’ extended discussion of electricity costs in Germany — involving a different country, market, currency, and regulatory regime — does not aid their efforts [to demonstrate standing]. . . . There is no effort to show that Petitioners or their members suffer “injury-in-fact” from electricity rates in Germany, or that any U.S. regulation (let alone the 2009 Finding or Denial) affected those rates.

That’s it. Hey, it’s a “different country”! Electricity prices in Germany don’t hurt you. Thus, says EPA, nobody has “standing” to challenge our Endangerment Finding.

I guess there’s just no way of knowing whether the hundreds of billions of dollars worth of damage being wreaked in Germany have anything to do with the forced energy transition. Anyway, it’s none of EPA’s business to try to figure that out. They are way too busy saving the planet.

Could the DC Circuit — supposedly one of our premier courts — fall for something this blindly ignorant? We shall see. Of note is that the “standing” question can be an easy way for a court to get rid of a tricky case without having to do the hard work of grappling with the merits.