CHECC has requested a rehearing with the DC District relating to its authority to problem the Endangerment Order. • Do you agree?


Francis Menton

Here, in my retirement, my remaining legal practice consists almost entirely of working on a case before the DC Circuit Court of Appeals titled Concerned Household Electricity Consumers Council v. EPA. From time to time, when there is a development in the case, I will post about it here.

My last update on the case was on May 25th when the DC Circuit issued a decision barring us on the grounds of our standing to sue. When a case challenges a regulation issued by a government agency, “standing” doctrine requires that a party bringing the case must demonstrate specific harm from the contested regulation, which is EPA’s 2009 finding here that emissions of CO2 into the atmosphere are a “hazard to human health and well-being.” Our evidence was that the Endangerment Finding is forcing a spate of federal regulations to suppress fossil fuel use; and that has been shown in all jurisdictions where fossil fuel suppression measures have attempted to lead to sharp increases in electricity prices. But the court, in its wisdom, ruled that the plaintiff’s electricity consumers were not “directly regulated by the contested rule” and that we had “failed.”[ed] to provide evidence of injury.”

Following that decision, I titled my May 25 post, “At CHECC, we’re down, but not out!” And indeed we are now back on our feet! On Monday we filed a request for a rehearing En Banc. The term “en banc” means that the hearing we requested would take place in front of the entire court of eleven active judges, and not just the panel of three that originally heard the case.

The court only processes a small handful of these “en banc” applications each year. And so you could say that our chances are high. However, this is possibly one of the most economically significant cases ever before this court, as it seeks to reorganize the entire energy industry in the country.

Therefore, we have taken this opportunity to point out some of the absurdities of the “estate” doctrine as it has evolved over the years. I have written previously (e.g. in this April 14 post at the hearing in our case) that the “permanent” doctrine is initially a sensible idea that “keeps the courts out of a lot of mischief”. The problem, however, is that many judges have gone to great lengths when trying various cases in court to represent politically favored categories of plaintiffs, while at the same time using the standing doctrine as an easy way out of cases brought by political disadvantaged categories of claimants were filed without having to do the difficult work of addressing the merits. You won’t be surprised to find out that the politically favored category includes those who claim to be harmed by environmental degradation of any kind, no matter how speculative or immature that alleged environmental degradation may be. Usually, the organizations that stand up against any kind of environmental degradation turn out to be well-funded environmental activist groups, like the Natural Resources Defense Council, the Environmental Defense Fund, Greenpeace, or the like. If, on the other hand, the plaintiff is a consumer group who alleges that certain regulations would increase costs for consumers, the legal standing somehow concludes that the impact of the regulations on consumer costs is not sufficiently clear or immediate are. And so the result of the constant doctrine in the courts is somehow a one-way ban, with environmental groups that seek more regulation often getting favorable rulings, while consumers seeking less regulation are thrown out.

In our current petition for En Banc’s rehearing, we use some particularly extreme recent precedents to illustrate this point. One is from the DC Circuit itself in 2020 and is headlined “Natural Resources Defense Council vs. Wheeler”.. This decision was written by the current Chief Justice of the Court, Sri Srinivasan. You may recall that he was a lead candidate for the 2022 Supreme Court nomination before President Biden announced he would only consider a black woman for the post. In any event, the case was a request by the NRDC for the EPA to work to further regulate gases called hydrofluorocarbons (HFCs) on the grounds that they are “greenhouse gases” like CO2. NRDC tried to stay put One of its members owned a property on the coast that was said to be “at risk” from global warming. From our briefing:

There was no claim that the damage had actually already occurred, nor when it would occur, or how it could be remedied by a court order that would have the same power over sea level as King Canute’s orders but without the humility. In the real world, there is no evidence linking greenhouse gas emissions to a perceived increased “threat” to coastal properties, and all attempts to demonstrate that such emissions have resulted in accelerated sea level rise or increased hurricane activity have failed. Doesn’t matter. The court ruled as follows:

The petitioners then appropriately linked the 2018 rule to an actual breach: the 2018 rule will lead to an increase in HFC emissions, which in turn will lead to an increase in climate change that endangers the petitioners’ coastal property.

If you’re an environmental plaintiff like NRDC, it’s easy.

Another case that we have pointed out is the famous Kelsey Cascadia Rose Juliana v. United States case, currently pending in the District of Oregon after several trips to the Ninth Judicial Circuit and one to the Supreme Court. Such is the case when a small group of juvenile plaintiffs petition that the court order the federal government to ban all fossil fuel use on the basis of an alleged constitutional right to a stable climate. In this case, the courts had to contend with an aspect of the established doctrine called “restorability” (that is, whether a court has authority to order a remedy like the one sought), but not with the question of whether the plaintiffs were sufficient concrete allegations have harmed themselves to justify their presence in court. From our briefing:

In 2020, the Ninth Circuit ruled that plaintiffs asserted sufficient “actual injury” and “traceability” elements (while denying redress) based on allegations that:

Kelsey spends time on the Oregon Coast in places like Yachats and Florence and enjoys playing on the beach, floating tide pools and viewing unique marine life. . . . The current and projected drought and lack of snow caused by the defendants are already damaging all the places Kelsey likes to visit, as well as their drinking water and food sources – including wild salmon. . . . The defendants have caused psychological and emotional harm to Kelsey because of her fear of a changing climate, her knowledge of the impact she will have in her lifetime, and the knowledge that the defendants continue to wreak havoc on her life and well-being endanger.

Contrasted with Kelsey Cascadia Rose’s “psychological and emotional damage.” . . as a result . . . “Fear of a Changing Climate” we presented the massively increasing electricity tariffs for consumers in every state that has systematically opposed fossil fuels. At the heart of the presentation is this chart, using data from the US Energy Information Agency (part of the Department of Energy) as of April 2023:

With the exception of Alaska and Hawaii (where the high rates are due to geographic remoteness and physical difficulty in providing services), all of the states with the highest costs are those that have fossil fuel suppression programs, be it California or the RGGI -States in the Northeast. Many of these states that are suppressing fossil fuels have average consumer tariffs that are twice or more than the national average consumer electricity cost.

I think our petition makes an enjoyable read and I commend it to you all. (Full disclosure: I wrote most of this, although I had a lot of help from my excellent co-adviser, Harry Macdougald.) Given that hundreds of billions of dollars in climate change have been raised by regulations that have no appreciable impact on the climate With electricity costs at stake, one would think the court would pay some heed. But we don’t expect that.

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