At CHECC, We’re Down But Not Out!


Francis Menton

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 The CPP was rescinded by the Trump administration, and then ultimately declared an invalid overreach by the Supreme Court in West Virginia v. EPA on June 30, 2022.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.

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William Howard
May 27, 2023 6:28 pm

Keep fighting – the USSC will ultimately rule in your favor – besides a huge overstep how in any sane world is something that is needed to sustain life considered a pollutant

Ben Vorlich
Reply to  William Howard
May 28, 2023 2:31 am

One of the great conundrums of the modern western world

Tom Halla
May 27, 2023 6:43 pm

Ultimately, the issue is absolute or qualified immunity. As most bureaucrats are not subject to damage suits under the Civil Rights Act of 1871, the enforcement act for the 14th Amendment, by judicial fiat, they have no consequences for gross violations of civil rights.
Neither the Warren or Burger courts were known for Constitutional scholarship, so eliminating that doctrine would be possible. It is, though, like the old joke about why sharks do not eat lawyers.

Reply to  Tom Halla
May 28, 2023 4:28 am

This is not a matter of suing individual employees of an agency as you suggest, this is a matter of suing an agency to overturn a policy on the basis that their action is not in accordance with law.

Tom Halla
Reply to  Duane
May 28, 2023 4:33 am

I would disagree. A real person or persons made the decision to screw over the Sacketts, and drag the case out over 19 years. They will suffer no consequences.

Reply to  Tom Halla
May 28, 2023 8:59 am

They can, and should be, included in the suits. It teaches them that there are consiquence to their actions. At a min they have to spend their own money for a lawyer. The individuals that I have seen named/included (and incurred cost) had eased up on their lying ways as they moved down the road.

You can always drop them in the future … but if your intent is to fix things, you need to include the main colluders (are you still out there Joe?)

May 27, 2023 6:45 pm

Unfortunately with almost all the search engines and Chatgpt favoring the CAGW warming views we have a long road a ho

May 27, 2023 8:28 pm

The question is, will there be anything left of our reliable electricity-generation sector by that time?

There is something interesting happening in Phoenix. There is a huge influx of escapees from California and the utilities are being stressed. There is a reasonable prospect of power blackouts during hot summer evenings.

Although Arizona has a lot of gas generation, some nuclear and hydro, its utilities are currently investing in solar farms that are not much value during evening peaks.

It would be a strange turn of events if Phoenix starts rolling blackouts before Los Angeles. People fleeing woke get caught in a squeeze they created.

So in answer to the question, rolling blackouts will put pressure on to source reliable power generation. Just that it may not be in the wokest of States.

Sydney, Australia and Phoenix, Arizona will be places to keep an eye on in July. One warm, one cold but both hostage to weather dependent electricity supply.

Reply to  RickWill
May 27, 2023 8:49 pm

This will be interesting to watch. In the late summer, a rolling blackout could be deadly on a wide scale, when it cools to near 90 by morning and starts heating up again.

Ben Vorlich
Reply to  RickWill
May 28, 2023 3:08 am

The UK electricity data for the last few weeks has been interesting. We’ve had low wind for a couple of weeks apart from briefly 22nd May. Rather than turn on the gas the National Grid has been importing using the interconnectors Mailnly France, Belgium and Norway although Holland has joined in today so 26% of our electricity is being imported currently. Wind+Solar 34.7%. Gridwatch data

A couple of weeks ago there was, with great fanfare from the BBC, a report that wind exceeded gas in the first quarter. I have a complaint in to the BBC to ask if they verified if the grid meant all gas Combined Cycle and Open Cycle, and was coal’s contribution ignored. Currently appealed after first rejection “It’s what the National Grid said”

I’m assuming that Germany is reaching peak solar about 40-45GW, they’re barely getting 1GW from wind so they have a bit to spare at the moment. This past week Germany has a surplus from about 11:00 to 16:00. The rest of the time they are importing upto 13GW at peak import.

All of which is a long way round to say the UK Grid is working very hard to make sure renewables out perform gas in the numbers game as the source of imported electrons is hidden. We’ve done very little exporting since the end of February and are competing with Germany to import other people’s spare when they’ve no solar or wind.

Is that giving UK consumers cheap reliable electricity?

Reply to  Ben Vorlich
May 28, 2023 5:35 am

In the new electricity tariff that comes in on July 1, the unit rate has gone down but yet again the standing charge will increase. Yes, you still pay less overall but the standing charge is steadily rising but when grid management costs have risen from £200m pre-windmills, to £2bn last year it is no surprise and I expect it to rise again next time round in September. This really hits pre-payment users – many of them installed illegally – who are running up a charge even when they can’t afford any electricity and find when they can, the standing charge is deducted first.

Tombstone Gabby
Reply to  RickWill
May 28, 2023 5:18 pm

G’Day Rick,

“… Phoenix, Arizona will be places to keep an eye on in July.”

For Phoenix outages, check:

B Zipperer
May 27, 2023 8:33 pm

Too bad about the Endangerment Finding. I recall the late Pat Michaels wanted that EPA ruling to be tested on its scientific merits, in court during the Trump Admin, but no luck. [Trump’s EPA director was probably too busy redecorating his office…]

But god bless the Sacketts and the Pacific Legal Foundation for perservering nearly 20 yrs of legal hell. A 9-0 comeupance for the EPA! Sweet.
[Full disclosure: I have donated to the PLF]

And here in central AZ we are having another beautiful day, completely consistent with “climate change”. Lol

May 28, 2023 1:46 am

Francis Mention and colleagues,
Your skill and persistence in this matter is much applauded. Maybe I find it important because I led a similar exercise in Australia in the mid 1980s and have not seen many more elsewhere since then. Ours was about overreach of treaty powers (UN world heritage) leading to acquisition of our property on terms that were unjust.
It is disappointing that more people have not become litigants. Without people objecting, Courts will assume that the matters have low importance and will tend to find in favour of pleasing the population rather than applying law. Geoff S

Joseph Zorzin
May 28, 2023 4:33 am

the Endangerment Finding (EF) that CO2 and other “greenhouse gases” constitute is a “danger” to human health and welfare.

fixed it! 🙂

May 28, 2023 4:33 am

As long as we have a conservative majority on SCOTUS, Federal regulatory overreach is what is in danger, not public safety. Presidents come and go, but Supreme Court decisions tend to have much longer lifespans.

Joseph Zorzin
May 28, 2023 4:34 am

The sole ground for the dismissal was what they call “standing.”

Crazy- everyone has standing in this issue.

Reply to  Joseph Zorzin
May 28, 2023 9:12 am

As an effort to create a more of a monster, ‘standing’ for everyone is written to into cwa … it is one reason the bureaucrats give for needing to err on the side of screwing you over.

Joseph Zorzin
May 28, 2023 4:49 am

Regarding wetlands- certainly some wetlands should be protected but not every wet spot of ground. Here in Woke-achusetts, the state government is fanatic on this subject. Not just regarding protecting wetlands from any development- but also during logging projects. When a forester prepares a “forest cutting plan” you had better include ever wet spot bigger than your boots. On one project- the property had dozens of small wetlands which I laboriously mapped out and showed how skidding trails would avoid them. I then walked the entire area with the state’s “service forester” for the region- it’s their job to enforce forestry regulations. As we walked along we saw an old rut left from the previous logging job a few decades earlier- about the size of a bath tub- which had water in it after some heavy spring rains. She said, “Joe, why didn’t you put this wetland on the cut plan?”. You can probably imagine my reaction!

Reply to  Joseph Zorzin
May 28, 2023 9:23 am

I had tire ruts, from the original trail crossing the hillside property 80 years ago included. Parallel strips, 12″wide, 40 feet long …

(Most people don’t know that ‘wetland’ can exist on 15 to 25% slopes … those areas are never shown in the ‘ducks unlimited’ propaganda photos)

May 28, 2023 7:47 am

They have made the definition of wetland just as arbitrary as the definition of what is a “ woman “ . I am very familiar with this wetland subject as I have property on essentially a manmade canal. Every time we( the community assoc) wants to dredge due to silting we have a more and more difficult problem with the permitting always, always at the federal level!

Beta Blocker
May 28, 2023 9:13 am

Let’s take a closer look at the EPA’s proposed rule limiting carbon emissions from fossil-fueled power plants.

It identifies carbon capture and storage (CSS), or alternatively conversion to hydrogen combustion, as the ‘best system of emissions reduction (BSER)’ for reducing the carbon emissions from existing coal-fired and gas-fired power plants. 

Earlier in May, Rud Istvan made these remarks concerning the EPA’s proposed rule:

There are two big legal issues here that the EPA will NOT be able to overcome:

  1. There is NO commercially viable CCS, so EPA cannot mandate it per the explicit wording of the Clean Air Act itself. See my comment today to the previous post on this issue.

  2. This regulation triggers the newish SCOTUS major questions doctrine. Congress did NOT give EPA the right to reorder the electricity generation sector of the economy. And that is certainly a MAJOR question that only Congress can decide. Multi-state electricity grids are within the Congressional purview of the interstate commerce clause of Article 1 Section 8.3.

As an essential part of its plan to dismantle America’s legacy power grid, the EPA’s proposed rule is written in a way expressly designed deal with the two major issues Rud Istvan has identified in his remarks above.

The EPA’s Strategic Approach

The strategic approach the EPA is now taking to kill coal-fired and gas-fired power generation in America has two basic features.

— First, it uses a combination of carbon capture and storage, and conversion of gas-fired generation to hydrogen combustion, as lawfare ammunition in consciously and deliberately spawning years of time-consuming and expensive lawsuits.

— Second, it deflects the major questions doctrine by not identifying either wind, solar, or nuclear as being a best system for achieving carbon emission reductions. It is left to the state regulators and to the power utilities whether or not to replace coal and gas-fired generation with wind and solar.

The EPA’s new rule isn’t a rehash of the Clean Power Plan. It isn’t based on classifying carbon emissions as criteria pollutants under Sections 108 and 110 of the Clean Air Act, as has long been advocated in the environmental law community. 

Rather, the EPA’s latest approach relies on a focused application of past interpretations of Section 111 of the Clean Air Act as it has been applied in actual practice over the past fifty years. The rule is crafted in a way which consciously uses the question of CCS commercial viability and/or hydrogen combustion as a means of spawning lengthy and expensive lawsuits.

Moreover, the rule doesn’t identify the complete replacement of a fossil-fueled power plant with wind and/or solar as a form of compliance, thus avoiding the major questions doctrine as it was applied in West Virginia versus EPA. 

The EPA’s Basic Tactical Plan

Much lawfare strategic thought and pre-planning for the certainty of years of lawsuits has gone into the EPA’s new rule. The EPA’s proposal goes so far as to outline in some detail what the EPA’s legal arguments will be when the inevitable lawsuits are filed. 

The EPA’s tactical plan has these basic elements: 

— The EPA cites its legal authority to regulate carbon emissions as pollutants, as has already been established in the courts, and to set limits on how much carbon ‘pollution’ can be emitted. 

— The EPA states that based on both existing law and on past practice, it has ultimate authority under Section 111 of the Clean Air Act to determine, through its own independent research and analysis, what constitutes a Best System of Emissions Reduction (BSER) for substances it is authorized to regulate as pollutants. 

— Through its own research and analysis, EPA identifies carbon capture and storage, and the conversion of legacy gas-fired facilities to hydrogen combustion, as the best systems of emissions reduction for existing and/or for new fossil-fueled power plants.

— If a power utility can find another technical means for complying with the EPA’s emission standards without using the EPA’s choice of BESRs for an existing fossil-fuel power plant, or for a new power generation facility, it is free to to do so, as long as the legacy power plant or the proposed new facility maintains emissions compliance. 

— The EPA leaves it to the state regulatory authorities and to the power utilities to determine what specific courses of action are to be taken in response to the new EPA rule. This has the effect of shifting responsibility and accountability for legacy plant closures and for future shortfalls in electricity generation onto the state regulators and the power utilities.

The Proposed Rule as a Strong Arm Intimidation Tactic

The published proposal for the new rule is in itself an intimidation tactic intended to discourage opposition to the Net Zero transition in the courts and in state and local regulatory decision making. The proposal goes into great detail in explaining what its arguments will be when defending the new rule in the courts.

— The EPA has legal authority to regulate carbon emissions as pollutants under the Clean Air Act; it has authority to set limits on how much carbon ‘pollution’ can be emitted; and that these authorities have already been successfully defended in the courts.   

— If the claim is made in a lawsuit that carbon capture and storage, and the conversion of legacy gas-fired power plants to hydrogen, are not commercially viable as best systems for emission reduction, the EPA will argue that: 1) the EPA has ultimate authority under the Clean Air Act to research and identify what constitutes a best system for emission reduction; and 2) the EPA’s own independent research and analysis demonstrates that CCS and/or replacement with hydrogen combustion can become successful as BESR’s for legacy fossil-fueled power plants.     

— If the claim is made in a lawsuit that the new rule violates the major questions doctrine, the EPA will argue that it is not dictating the conversion of the nation’s power grid to some combination of wind, solar, energy storage, and/or nuclear. It is up to the state regulatory authorities and to the power utilities to determine what specific courses of action are to be taken in response to the new EPA rule.  

As is explained in the proposal, the courts are not likely to question the EPA’s basic authority under current law to regulate carbon emissions. Nor are the courts likely to reject the EPA’s analysis that CCS and/or conversion to hydrogen combustion can become successful as BESR’s for legacy power plants. Nor are the courts likely to invoke the major questions doctrine, because the BESR’s the EPA identifies are applicable only to legacy and proposed fossil-fuel power plants as covered under CAA Section 111.       

The ultimate effect of the new rule will be to place intense pressure on power utilities and on state regulatory authorities to eliminate gas-fired and coal-fired generation from the grid — but without dictating directly that the lost generation be replaced by some combination of wind, solar, nuclear, or by energy conservation measures which eliminate some good fraction of our historical power demand. 

The EPA Rule as Regulatory Ammunition for Anti-carbon Activists

The EPA’s strategic thought and pre-planning, as is reflected in the EPA’s proposal, is likely to be very effective in dealing with the issues Rud Istvan raises above.

What is equally as important is that the EPA’s new rule, once it is fully implemented, will be very effective in supporting anti-carbon climate activists in state and local governments as they continue to dismantle our legacy power grid in favor of the renewables.

The power utilities will continue to jump on the wind and solar bandwagon because they must bow to the wishes of state and local politicians, and because they can make a profit on every wind turbine, every solar panel, and every grid-scale battery they decide to install. 

We see this kind of dynamic going on in Virginia with Dominion Energy’s obvious intent to exploit Virginia’s clean energy legislation for its own profit.

Another example is the strong push to close New York City’s load pocket peaker plants by 2030 and to replace those plants with a combination of a) local battery storage fed by wind and solar generation; and b) energy conservation measures a.k.a. demand management a.k.a. energy rationing.

When the inevitable blackouts occur in NYC, the politicians and the utilities will tell the local residents, “It’s all your fault. You were strongly encouraged to conserve electricity, and you didn’t do it.”   

The upshot here is that within a decade, most of us here in America must learn to get by with roughly one-third less electricity than we consume today, and that buying electricity will consume a larger fraction of our incomes than it does today.

And for no measurable reduction in the rate of increase in global mean temperature.

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