The Concerned Household Electricity Consumers Council Has Petitioned the Supreme Court for Certiorari

From the MANHATTAN CONTRARIAN

Francis Menton

It’s the question that I know has been on the tips of the tongues of all Manhattan Contrarian readers: Will the Concerned Household Electricity Consumers Council, after getting booted ignominiously out of the D.C. Circuit on grounds of standing, now continue its fight to overturn EPA’s CO2 Endangerment Finding by petitioning the Supreme Court for Certiorari?

The answer is YES. Our Petition for a Writ of Certiorari was filed on Wednesday, October 18, and is now available on the Supreme Court’s website.

Not that other strategies did not occur to us. An obvious alternative would have been to let it go on this round, and then start over with a new Petition to reconsider the Endangerment Finding, addressed to EPA itself, only once there is a new Republican administration in Washington that might take such a Petition seriously.

But that approach would mean giving the Endangerment Finding a complete pass for the time being. No way were we going to do that. For those unfamiliar with the subject, the Endangerment Finding, adopted by EPA back in 2009, is the biggest piece of pseudoscientific absurdity ever perpetrated on the American people. It purports to determine that CO2 — a colorless, odorless, non-toxic trace gas constituting about 0.04% of the atmosphere — constitutes a “danger” to human health and welfare. The Endangerment Finding is then the entire basis for an unprecedented regulatory tsunami unleashed by the Biden administration on the American people and economy. The world needs to see that the serious people know how crazy this is, and that we are going to keep saying so, and that we are not going away.

Right now the Biden administration is moving aggressively to eliminate all use of fossil fuels to generate electricity, via a new Power Plant Rule proposed in May 2023. The entire basis for that Rule is the Endangerment Finding. The Biden administration is also moving aggressively to ban all internal combustion personal vehicles, via another Vehicle Rule also put forward in May 2023. That one also has the Endangerment Finding as its entire basis. The same goes for a multitude of other rules and regulatory initiatives covering things like blocking pipelines, restricting drilling, subsidizing intermittent electricity generation, requiring costly corporate disclosures, and many others. In the aggregate these regulatory initiatives look to impose hundreds of billions of dollars, or even trillions of dollars, of costs on the American people. All of this has no reason for existence other than the Endangerment Finding.

The Petition for Certiorari gave us an opportunity to shine a small spotlight on some of the absurdities of the law of standing as it currently exists in the Supreme Court and in the various Courts of Appeals. Readers of my previous updates on this litigation know that the D.C. Circuit threw out our case seeking to force the EPA to reconsider the Endangerment Finding on this ground of “standing,” which requires that the petitioning party show some kind of concrete injury from the regulation in question. We thought we had satisfied that requirement by making a presentation as to the tight correlation between regulatory efforts in various jurisdictions to suppress use of fossil fuels and sharply increasing electricity prices in the same jurisdictions. The D.C. Circuit found that this showing of concrete monetary harm was insufficient.

But, as we now show in our Petition for Certiorari, the same D.C. Circuit that thinks that increasing electricity costs are insufficient to establish consumer standing decided a case called Natural Resources Defense Council v. Wheeler in 2020. In that case the NRDC sought to compel additional regulation of hydrofluorocarbons on the ground that they (like CO2) are “greenhouse gases” that cause “climate change.” A member of NRDC asserted that he owned coastal property that was therefore “threatened” by rising sea levels. From our Petition:

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 scientifically valid evidence has ever established any link between greenhouse gas 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.

But the completely speculative claim was found sufficient to establish standing, because claims of threatened future environmental degradation, no matter how speculative or slight, are politically favored.

Among the examples of favored environmental allegations held sufficient to meet the “injury” element of standing, my favorites are the standing allegation of the plaintiffs in Kelsey Cascadia Rose Juliana v. United States:

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.

In 2020 the Ninth Circuit Court of Appeals held these allegations sufficient to establish the injury element of standing. In the 2022-23 winter, the whole claim of “projected drought” got blown to bits by record snowfalls over the Western mountains; but no matter. The mere fear of such droughts is enough to establish standing if you are a favored environmental plaintiff.

It is likely that there is a good deal of sympathy for our position on today’s Supreme Court. But that does not mean that they will take this case. Perhaps more likely, they will wait until cases challenging the Power Plant Rule or the Vehicle Rule or other such rules get presented. But those will take several years to work their way up to the Court, during which time untold damage will have been done to the electric utility and automotive industries. In the end, the courts, and particularly the Supreme Court, can be an important part of the unraveling of the energy transformation sought by today’s climate cult. But likely the much more important factor in the unraveling will be the cost and unworkability of the net zero plans of the climate campaigners.