CHECC Has Petitioned the DC Circuit for Rehearing as To Its Standing to Challenge the Endangerment Finding


Francis Menton

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.

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July 13, 2023 10:37 pm

Net Zero is an inflation fighter. It eliminates high paid jobs in manufacturing and those with low paid jobs can hardly afford the energy to heat and cool their home or fuel a motor vehicle. Hence demand is suppressed and pressure comes off prices. It works. Workers have less money and no disposable income after living costs so are experiencing an ever reducing standard of living.

Australia’s productivity commission cannot work out why productivity is falling. They fail to understand that if people get paid to build useless stuff like wind and solar farms that use more energy to build than they can produce over their operating life, the economy has to be going backward. It does not matter how many jobs are added to erecting wind and solar farms they can never be more productive than the few people operating an existing power station. Ten times a negative number is still a negative number a million times a negative number is a large negative number. Ever economy chasing NetZero is going backward.

George Daddis
Reply to  RickWill
July 14, 2023 4:48 pm

A good example of the “Broken Window” fallacy.

July 13, 2023 10:45 pm

The courts have become ‘kangaroo courts’ for the whims of the left.

Reply to  PCman999
July 15, 2023 11:29 pm

And not only in Australia.

July 13, 2023 11:33 pm

Remember, People who want to lower your standard of living are not your friends.

July 14, 2023 12:09 am

Should also consider making a case based on the deaths caused to those who can no longer afford electricity, oil or gas for heating – could be quite considerable in depressed areas in the rust belt

William Howard
Reply to  gaz
July 14, 2023 6:48 am

in Germany the WSJ reports that electricity is now considered a luxury & is not affordable by many Germans – that is the model the leftists want for the US

July 14, 2023 12:11 am

Wind power…

Met Office issues two yellow warnings as Britons brace for ‘unusual’ winds
Heavy gusts of wind can impact public transport, damage trees and make driving conditions difficult – The Independent

Unusual wind? A curry?

Joseph Zorzin
Reply to  strativarius
July 14, 2023 4:52 am

will it be too windy for the wind mills?

Reply to  strativarius
July 14, 2023 5:26 am

How do we distinguish between the usual type of wind and the unusual?

Reply to  DavsS
July 14, 2023 5:37 am

The same way we determine the difference in electrons from renewables and other sources. 😉

Reply to  DavsS
July 15, 2023 11:31 pm

Politicians vs Anything Else.

Philip Mulholland
July 14, 2023 12:27 am

It would be absolutely wonderful if someone could demonstrate with measured data and mathematical proof precisely how variations in atmospheric thermal radiant opacity caused by industrial additions to the presence in the Earth’s atmosphere of 420 ppm by volume of the non-condensing polyatomic molecular gas named carbon dioxide actually result in a global temperature rise of sufficient magnitude to produce climatic changes in the planetary tropospheric air mass-motion circulation system.

Richard Page
Reply to  Philip Mulholland
July 14, 2023 2:55 am

No it wouldn’t it would be A Lie.

Philip Mulholland
Reply to  Richard Page
July 14, 2023 3:19 am

Do you mean an honest lie?
Trump specialises in those.

Ill Tempered Klavier
Reply to  Philip Mulholland
July 14, 2023 1:37 pm

Since “Trump Lied” is normally the lie, That’s a canard.

Reply to  Ill Tempered Klavier
July 15, 2023 11:33 pm


Joseph Zorzin
Reply to  Philip Mulholland
July 14, 2023 4:55 am

“…. of sufficient magnitude to produce climatic changes in the planetary tropospheric air mass-motion circulation system sufficiently threatening to force us to spend hundreds of trillions in the next few decades to save the Earth“.

Fixed it! 🙂

Reply to  Philip Mulholland
July 14, 2023 6:06 am

Philip Muholland.

How about, instead, proving that CO2 has no global warming effect?

I have a recent article “Definitive proof that CO2 does not cause global warming”

Worth a read

Reply to  Philip Mulholland
July 14, 2023 10:53 am

Industrial activity, and cars and SUVs, and aircraft are only responsible for a small part of the 420 ppm. Don’t buy into the CAGW misrepresentation.

George Daddis
Reply to  Retired_Engineer_Jim
July 14, 2023 4:52 pm

Yeah, but when you take into account cow farts we meat eaters require and then the gas stoves used to cook those burgers we get into REAL numbers!

Tom in Florida
July 14, 2023 4:22 am

The current and projected drought and lack of snow “
Can we conclude that due to this last winter’s precipitation this point is now moot?

Defendants have caused psychological and emotional harm to Kelsey as a result of her fear..”
I am not a lawyer and have never played one on TV, but even I can see the folly of such a standard for establishing standing in a court.

Reply to  Tom in Florida
July 14, 2023 5:33 am

It’s those who have been indoctrinating Kelsey with hysterical climate change propaganda who have caused her  psychological and emotional harm

George Daddis
Reply to  Tom in Florida
July 14, 2023 4:58 pm

It was my recollection that James Hanson’s granddaughter was one of the children in the suit.
Clearly Grandpa was responsible for much of the “ psychological and emotional harm”.

Joseph Zorzin
July 14, 2023 4:48 am

“Many of these fossil fuel suppression states have average consumer rates that are double or more the national average consumer electricity costs.”

But… but… it feels so good to know we’re saving the planet! /sarc

Peta of Newark
July 14, 2023 5:28 am

I’m gonna drop this one in here….

It’s a nice encapsulation (an hour of your time) of all the things I’ve raved about concerning depression, nutrition, sugar/alcohol, physical health and mental derangement and their causes. Couldn’t have put it better myself. I tried plenty times tho

Watch attentively and no distractions. He doesn’t hang about and his handwriting on the whiteboard is awful, but see how many dots you can join, regarding Almost Everything going on in this world right now..

Dr Peter Osborne – What Men Need (Not What You Think)

Peta of Newark
July 14, 2023 5:39 am

Does this count as ‘endangerment’ and if so, how does Carbon Dioxide actually cause such danger…

Headline: One in 20 adults run out of food as prices soar

One More Dot to add the ones in my other comment here…..

Reply to  Peta of Newark
July 15, 2023 11:39 pm

The person is pretty stupid to invite those 19 others to eat.

Reply to  Peta of Newark
July 23, 2023 6:52 am

Soaring food prices may be caused by fear of climate change, via government mandates closing down farms and reducing fertilizer use. They are not caused by climate change itself. One or two degrees higher temperatures don’t cause crop failures.

Rick C
July 14, 2023 9:35 am

MC>> Thanks for the update. I truly hope you succeed in getting your case heard. As you said, the courts have bent over backwards to grant standing to enviro whacko’s suits. Sadly I would expect these same courts to bend over backwards, and then some, to keep challenges to ridiculous regulatory findings out of the courts. Question: if the DC Court of Appeals rejects you again can you appeal to SCOTUS? At least there the 6/3 split might work in your favor.

July 14, 2023 4:17 pm

The state rate chart would be better presented as a graph showing how rates went up in relation to specific Biden green policies, Executive Orders, and regulations. Cause and effect vs. just showing rates with no understanding of what the numbers mean. The cause and effect of rates going up driven by green policies equals harm.

George Daddis
July 14, 2023 4:44 pm

Great example of the contradictions and biases of the current US “Justice” [Judicial] System.
Any fair minded, intelligent person could have no argument with your plea.
But of course it is going nowhere. Too many of the “wrong” bulls will be gored with a ruling that could be cited as a precedent.

I liken this to the semantic slight of hand the Democrat/Progressives have used little by little over time to moved our government almost 180 degrees away from the intent of our Founders, despite rational arguments to the contrary.

As just one example: the distortion of the “General Welfare” clause to justify any act that could be considered “beneficial” to the nation. Madison pointed out to Congress that if that were his and his fellow authors’ intent, why the Hell would they have wasted time to write Articles defining Enumerated Powers? (Obviously my paraphrase)

July 14, 2023 10:07 pm

The endangerment finding has no standing as a science based document.

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