At CHECC, We're Down But Not Out!

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 The CPP was rescinded by the Trump administration, and then ultimately declared an invalid overreach by the Supreme Court in West Virginia v. EPA on June 30, 2022.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