Oral Argument In CHECC v. EPA: The Issue Of Standing

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By Francis Menton

This morning the DC Circuit Court of Appeals in Washington held oral argument in the case of the Concerned Household Electricity Consumers Council v. EPA. That’s the case where a hardy band of citizen petitioners (CHECC) challenges the 2009 finding of EPA that CO2 and other “greenhouse gases” constitute a “danger” to human health and welfare by reason of their potential to warm the atmosphere. That finding, known as the Endangerment Finding or EF, is the underlying basis for the all-of-government regulatory assault on the fossil fuel industry and the energy economy currently being conducted by the Biden Administration.

I attended today’s argument in my capacity as one of the lawyers for CHECC (although my excellent co-counsel Harry MacDougald delivered the oral argument). I have had previous posts summarizing the briefing in the case, including this post at the time of the filing of the Opening Brief back in October 2022, and this one in February 2023 upon the filing of the final Reply Brief.

My previous posts on this case have focused on what we lawyers like to call the “merits,” which here means, has EPA articulated any valid scientific basis for its supposed “finding” of human endangerment from increased atmospheric CO2? On that issue, EPA’s position is pathetically weak. Given the mass hysteria gripping essentially all of our major institutions with the fear that the world is about to end from “climate change,” you would think that our government overlords would at least have a well-rehearsed and coherent story as to how that is supposed to happen. But they don’t. The stated basis for the EF is a combination of a temperature series where almost half of the data has been manufactured and infilled by computer algorithm, together with model predictions of atmospheric temperature patterns that have never been found in the empirical data as it has been collected. Unfortunately, almost none of the oral argument was devoted to these subjects.

Rather, slightly less than all of the argument was devoted to another issue that we lawyers call “standing.” Since the non-lawyers among the readership may not be familiar with this issue, I’ll provide some background.

Article III of the U.S. Constitution, in vesting what it calls the “judicial power” in the federal court system, defines the scope of that power in Section 2 in terms of what it calls “cases” and “controversies.” Those terms have long been interpreted to mean that for someone to qualify to initiate a federal litigation, he must have some kind of real stake in the matter. In contrast to many of the European countries, our courts do not entertain requests from mere citizen advocates who want to push some political cause by getting a favorable advisory court ruling. The courts use the term “standing” to refer to the required personal stake in the matter needed to qualify to bring a suit.

As a starting proposition, the requirement of standing is frankly a good idea, and keeps our courts out of quite a bit of mischief. However, the drawing of the lines between who has standing and who does not has proved to be quite difficult, most particularly in the area of challenges to the regulatory initiatives of the administrative state. The DC Circuit has issued one lengthy opinion after another on the subject — some as long as 100 pages — and the Supreme Court has also weighed in on multiple occasions. The opinions are confusing and not fully consistent. Moreover, the flood of verbiage in the cases provides a convenient smokescreen to cover the reality of what has occurred, which is that the cases as they currently exist give an advantage to left-wing advocacy groups in obtaining standing, and a disadvantage to advocates of limited government seeking to challenge federal agency overreach.

So as an example highly relevant to our case, it is well-established that any person or environmental advocacy organization can obtain standing to challenge environmental regulations by the simple assertion of interest in a clean and healthy environment. That interest is abstract, non-quantifiable, and non-monetary; but the courts have said that it is sufficient.

How about the interests of the members of CHECC? You might think (and we do think) that their interests are orders of magnitude more worthy of conferring standing than the interests typically asserted by environmental organizations. The members of CHECC assert that they all pay electric utility bills, and that the Endangerment Finding is being used in an intentional effort to drive up the cost of electricity in order to reduce the use of fossil fuels. As examples, we cited the famous quote from then-candidate Barack Obama (“Under my plan, . . . the price of electricity will necessarily skyrocket.”), as well as the experiences of places like California and Germany, where aggressive efforts to suppress fossil fuels and promote wind and solar energy have led to electricity prices two and three times higher than those in places that have continued the reliance on fossil fuels.

But despite the seemingly highly favorable contrast to the situation of the environmentalist advocates, the assertion of standing by CHECC is not open-and-shut. The questioning from the panel entirely focused on this issue: How do you know that electricity prices are going to go up? Have you offered sufficient proof of that?

Even as the judges pressed CHECC with those questions, in this very matter, a collection of environmental groups (e.g., American Lung Association, Clean Wisconsin, Appalachian Mountain Club) intervened with no more basis for standing than the generalized claim of an interest in a clean and healthy environment. Note that these organizations were not mere “amici” or “friends of the court.” Rather, by “intervening,” they claimed status as parties to the case, people with a sufficient stake that their voice is entitled to heard as of right, but on no more basis than concern that temperatures might rise by a couple of degrees a hundred years from now. Nobody bothered to try to object, because the case law supports that that claim is sufficient to confer standing. Needless to say, all of these groups are in favor of leaving the Endangerment Finding in place and proceeding with a transformation of the energy economy by the force of regulations issued by unelected bureaucrats.

Meanwhile, EPA’s energy transformation imposes its inevitable costs on consumers of electricity, likely to be at least in the hundreds of billions of dollars, if not trillions — without doubt the single most costly regulatory initiative of all time — and the DC Circuit appears to be struggling over whether any electricity consumer has a sufficient stake in the matter to convey “standing.” You literally can’t make this stuff up.

It will probably be multiple weeks if not months before we get the court’s decision.