The Return of Sue and Settle

by Chris Horner.

Today, Energy Policy Advocates filed a motion for leave to file a brief as amicus curiae in State of New York vs Environmental Protection Agency in the DC Circuit. This is the challenge to EPA’s ozone rule maintaining the current standards, filed by progressive state attorneys general and New York City the day before the Biden EPA took the reins. 

You may recall a 2009 Obama EPA memo, obtained for CEI in the “Richard Windsor” FOIA litigation, laying out the intended reframing of the climate campaign — the “shift from making this about the polar caps [to] about our neighbor with respiratory illness…”, acknowledged by the Obama EPA as necessary due to “climate change in the abstract [being] an increasingly – and consistently – unpersuasive argument to make.” This suit is a continuation of that.

Today’s amicus brief builds on and provides the documentary support for a filing by 6 states (TX, joined by AR, LA, MO, MS, MT) which last week sought to intervene citing similar concerns: that the administration seems to be preparing to invoke a “climate crisis” to replace the just-adopted Rule, and that “The intervenor States cannot trust that the federal government will serve as adequate representatives of their interests—or that it will provide an adequate defense of the 2020 rule—going forward.” 

The records excerpted and linked to in today’s brief suggest that fewer truer words have been written in this context than those.  The brief shows that the AGs and the Biden Administration’s Acting Assistant Administrator with responsibility for the Rule consulted on using a replacement, secondary ozone NAAQS — before this Rule was even proposed — as a backdoor to impose a CO2/GHG national standard. This was so radical — as the brief also points out — that Obama’s EPA administrator and green groups at the time worked hard to dispute that they would seek a climate NAAQS. 
My, how things have changed, as the cited emails, privilege logs and other documents (e..g, “ClimateNAAQS.ppt”) attest.

Further, the brief points to records revealing an ulterior motive, a stated silver lining in the event the Petitioners lose: to obtain a declaration that EPA regulations do not displace *all* GHG regulation, in hopes of circumventing that defense employed by energy companies sued in the epidemic of “climate nuisance” litigation.

Energy Policy Advocates suggests to the Court that these factors warrant a hard look at what is sure to soon be sue-and-settle, Step 1

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February 23, 2021 3:29 am

This was a very difficult article to follow.

Edward Hanley
Reply to  Derg
February 23, 2021 4:03 am

No kidding. But try reading the amicus brief. This is probably important stuff, but those who are writing about it aren’t reaching their audience very well.

Juan Slayton
Reply to  Derg
February 23, 2021 4:41 am

Most anything is difficult to follow at 3:29 in the morning. Hopefully it will be clearer with daylight… : > )

February 23, 2021 4:53 am

It isn’t only in the USA that the government is using the need to reduce pollution as a way of forcing its climate policy on everybody. According to this article, China is about to do the same.

“In 2013, Chen Jiping, a former Chinese Communist Party (CCP) official, remarked that pollution had displaced land disputes as the leading cause of social unrest. Soon after, the National People’s Congress reinforced environmental regulation with the Environmental Protection Law and, in 2015, President Xi announced specific commitments within the framework of the Paris Climate Agreement. Mr. Xi’s recent comments on decarbonisation further codify the central government’s resolve in addressing the climate issue.”

This comes in an article which lauds The Chinese Communist Party’s announced aim of decarbonising the Chinese economy.

“At the 2020 United Nations General Assembly, Chinese President Xi Jinping caught the world’s attention when he stated that his country would target peak carbon emissions in 2030 and seek to achieve carbon neutrality by 2060.”

Janus Henderson are an investment company. They invest other people’s money in what they think are going to get the best returns. Maybe they’re one of those organisations that rely on models rather than observational evidence.

This comment in the article is also significant:

“Reaching carbon neutrality will not be easy. It will require an overhaul of China’s energy mix and a fundamental shift in the composition of its economy. Yet, it is possible given China’s top-down decision making and its centralized political system.”

We all know what greenies think about the relative merits of capitalism compared to state control but it is worrying when a capitalist organisation sees the “benefits” of state control.

There is also graph which purports to show that since 2017 there are more “renewable jobs’’ in China than jobs in coal mining. Maybe it’s all those bus drivers, waste collectors and used-merchandise store employees.”

Joel O'Bryan
Reply to  Alba
February 23, 2021 6:31 am

Anyone who thinks China’s dictatorial communist leadership will allow western Libtards to dictate to them any true reforms that also bring to them destructive energy policies that slow their aims of global economic dominance and regional military superiority is a fool of the highest order.
Did I just identify John Kerry?

Reply to  Alba
February 23, 2021 9:09 am

Agree w/Joel — the Chinese statements are meant for western governments, not China. Poster is just naive?

Reply to  Alba
February 23, 2021 9:17 am

where the flying hell do they think the CFC’s etc have been coming from? China of course

how did China come to own the entire world and the whole PC campaign

Last edited 1 year ago by Latitude
Rory Forbes
Reply to  Alba
February 23, 2021 10:49 am

Anyone who believes a thing the Chinese say (especially Xi) is a fool. They have no intention of doing thing to “de-carbonize”. They know bloody well there’s no science supporting the attack on CO2. Our planet is perfectly healthy and what little warming there has been is beneficial.

AGW has been de facto, population control, nothing more.

Beta Blocker
February 23, 2021 6:20 am

On or before Earth Day, April 22nd 2021, the Biden Administration is expected to announce its carbon emission reduction targets for the year 2030. Climate activists are pushing for reductions in the range of from 50 to 70 percent of America’s year 2005 carbon emissions.   

If climate change is indeed the existential threat to our existence Joe Biden and John Kerry claim that it is, then they are morally obligated to act in accordance with their claims and to quickly reduce America’s carbon emissions just as far and as fast as current law allows them to do. 

Building enough wind, solar, and nuclear to replace even half of our carbon energy resources by 2030 is completely impossible. The only practical means of quickly achieving the emission reductions climate activists say are necessary is to impose a series of drastic energy conservation measures on the American public.  

The fact remains that the Executive Branch has all the authority it needs to quickly reduce America’s carbon emissions on a highly aggressive fast-track schedule. What remains to be seen is whether or not President Biden and his climate czar John Kerry will use that authority.

More important, under current law, President Biden and the Executive Branch can do it unilaterally without another new word of legislation being passed by the Congress.

Every action listed under the following five-point GHG reduction program — the Supply Side Carbon Emission Control Plan (SSCECP) — has a past historical precedent in the application of environmental regulations and in the area of national security law as it would apply to a declared national emergency.

The SSCECP imposes an artificial shortage of fossil fuels on the American economy while greatly increasing the price of all forms of energy for all energy consumers. In addition, the SSCECP establishes a system of carbon pollution fines which is the functional equivalent of a legislated tax on carbon.

The plan eliminates price competition from the energy marketplace by suspending the application of anti-trust laws to private sector energy corporations and by enlisting those corporations as the government’s paid agents in imposing a hard-target schedule for reducing America’s consumption of fossil fuel energy.

In the space of a decade, the SSCECP transforms America from an energy rich nation into an energy poor nation relative to the energy cornucopia we enjoy today. This is a feature of the plan, not a bug.

These are the five points of the plan:

I: Establish the Legal Basis for Regulating All of America’s Carbon Emissions (2007-2020, Complete)

I-a: File and win lawsuits to allow regulation of carbon dioxide and other carbon GHG’s as pollutants under the Clean Air Act. (2007)
I-b: Publish a CAA Section 202 Endangerment Finding as a prototype test case for regulation of carbon GHG’s. (2009)
I-c: Successfully defend the CAA Section 202 Endangerment Finding in the courts. (2010-2012)
I-d: Establish a recent precedent, the COVID-19 pandemic, for taking strong government action in response to a declared national emergency. (2020)

II: Expand and Extend Regulation of all Carbon Emissions (2021)

II-a: Issue an Executive Order declaring a carbon pollution emergency.
I-bI: Assign a joint task force comprised of all cabinet level departments, plus the National Security Agency, to manage the carbon pollution emergency.
II-c: Create a joint interagency control board to manage a phased systematic reduction in the production and distribution of all carbon fuels.
II-d: Place this control board under the direct supervision of the president and his national security staff.
II-e: Research and publish a US Treasury policy plan for redirecting energy market financial investments as needed to support the government’s GHG reduction goals.
II-f: Issue an Executive Order suspending the application of anti-trust regulations in the energy marketplace.
II-g: Defend the president’s emergency actions as needed in response to specific lawsuits filed in the courts. 

III: Establish an Expanded Carbon Emission Regulation Program (2021-2022)

III-a: Publish a Clean Air Act Section 108 Endangerment Finding which complements 2009’s Section 202 finding.
III-b: Declare carbon emissions as Hazardous Air Pollutants (HAPs) under CAA Section 112.
III-c: Establish a National Ambient Air Quality Standard (NAAQS) for carbon pollution.
III-d: Use the NAAQS for carbon pollution as America’s tie-in to international climate change agreements.
III-e: Defend the Section 108 Endangerment Finding, the NAAQS, and the Section 112 HAP Declaration in the courts.
III-f: Publish a regulatory framework for carbon pollution under Clean Air Act sections 108, 111, 112, 202, and other CAA sections as applicable.
III-g: Establish cooperative agreements with the states to enforce the EPA’s anti-carbon regulations.
III-h: Establish a system of carbon pollution fines which is the functional equivalent of a legislated tax on carbon.
III-i: Establish the legal basis for sharing the revenues collected from these carbon pollution fines among the federal and state governments.
III-j: Defend the comprehensive system of carbon pollution regulations in the courts.

IV: Establish a Carbon Fuel Rationing Program (2021-2022)

IV-a: Research and publish a system for government-enforced carbon fuel rationing.
IV-b: Establish a time-phased, hard-target schedule for reducing the production and distribution of all carbon fuels.
IV-c: Establish cooperative agreements with the states to enforce the government’s system of carbon fuel rationing.
IV-d: Establish production control agreements with private sector fossil fuel producers and distributors.
IV-e: Establish a guaranteed profit schedule for the carbon fuels industry in return for production & distribution cutbacks.
IV-f: Defend the government’s system of carbon fuel rationing in the courts.

V: Perform Ongoing GHG Reduction Monitoring & Control Activities (2023 through 2050)

V-a: Issue a further series of Executive Orders, as needed, to further define and further implement America’s carbon emissions regulatory framework.
V-b: Issue a further series of Executive Orders, as needed, to further define and further implement America’s carbon fuel rationing program.
V-c: Monitor the effectiveness of the EPA’s carbon regulation framework in reducing America’s GHG emissions.
V-d: Monitor the effectiveness of renewable energy projects in reducing America’s GHG emissions.
V-e: Monitor the effectiveness of energy conservation programs in reducing America’s GHG emissions.
V-f: Monitor the effectiveness of carbon fuel rationing programs in reducing America’s GHG emissions.
V-g: Adjust the schedule of carbon pollution fines upward if progress in reducing America’s GHG emissions lags.
V-h: Adjust the carbon fuel rationing targets upward if progress in reducing America’s GHG emissions lags.
V-i: Continue to defend the comprehensive system of carbon pollution regulations and the government-mandated energy rationing programs in the courts.
V-j: Continue to assess the need for enforcing the government’s GHG reduction programs beyond the year 2050.


The plan described above is completely legal and constitutional. Under current law, the SSCECP can be implemented unilaterally by the Executive Branch using its existing environmental protection and national security authorities. Not another word of new legislation is needed from Congress either to enable the plan legally or to fund its operation.

Nor does the plan require a separate line of funding in the federal government’s budget. The planning activities and regulation roll-out activities are easily accomplished within the existing spending authorities of the US-EPA, the US-DOE, and the US-DHS. 

A plan like the SSCECP will generate many lawsuits. But if the plan is applied with equal force against all major sources of America’s carbon emissions and with equal impact upon all affected economic sectors and demographic groups, those lawsuits will go nowhere. It is specifically designed to survive any lawsuits brought against it.

Even if the House of Representatives and the Senate were both in Republican hands in January, 2023, and passed legislation specifically forbidding the adoption of a plan like the SSCECP, a presidential veto can kill that legislation with the stroke of a pen.

So the big question remains. How far will President Biden and John Kerry go in acting upon their stated convictions? Will they, or won’t they, do all that is in their power as our Chief Executive and our climate czar to reduce America’s carbon emissions just as far and as fast as climate activists say is necessary?

Last edited 1 year ago by Beta Blocker
Joel O'Bryan
Reply to  Beta Blocker
February 23, 2021 8:44 am

What stops them is implementing such a plan would be political suicide for Democrats without a Venezuela-style rigged election balloting process.
Oh wait…

Beta Blocker
Reply to  Joel O'Bryan
February 23, 2021 9:26 am

After the 2009 Endangerment Finding had been successfully defended in the courts, the legal doors were wide open for the Obama administration to do exactly what the SSCECP does. Work on a plan similar to the SSCECP could have been started in late 2012. By 2016, the plan could have been fully implemented. But it was the threat of a severe voter backlash which prevented Obama’s people from trying it. This threat has now been removed.

February 23, 2021 6:32 am

They had me at “the states cannot trust the federal government”.

John Garrett
February 23, 2021 7:42 am

The climate lunacy has gotten to the point where a rational person has to wonder if Russia and China are funding the climate crackpots.

Gerald Machnee
Reply to  John Garrett
February 23, 2021 8:03 am

No need to wonder.

Reply to  John Garrett
February 23, 2021 9:53 am

Unnecessary. Liberal billionaires and mostly the US taxpayers (whether we want to or not) are doing an outstanding job.

Last edited 1 year ago by beng135
February 23, 2021 8:06 am

Lawfare is the cannon of the Leftist arsenal…constant bombardment upon rampart large and small…forever.

February 23, 2021 8:52 am

Progressives have no use for legislatures that fail to pass the laws that progressives want.

Mickey Reno
February 23, 2021 12:37 pm

It reads like one of the Gelbspan articles, lots of lawsuit jargon, lots of assumptions that every reader knows some long and sad litigation history as well as the prosecutors, plaintiff’s or defendant’s lawyers.

Show your article to a reasonably intelligent teenager, a high school intern, or a clerical worker, and ask them if they understand what you’re talking about. If the answer is no, then rewrite more plainly.

old engineer
Reply to  Mickey Reno
February 23, 2021 3:00 pm


If you do not understand the article, then perhaps it was not written with you as the intended audience. It assumes a lot of knowledge about the Clean Air Act, and the legal squabbles around it. For instance, you should know what an NAAQS (National Ambient Air Quality Standard) is, and the ramifications of setting one for CO2.

I don’t understand all of the article either, but the responsibility for learning what I need to know to understand the article rests with me, not with the author.

Readers of WUWT vary in their knowledge. Don’t wait to be spoon-fed. Use the article to explore the subject on your own. That’s why I find WUWT so useful. It shows me what I have to learn.

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