April 16, 2023

Francis Menton at the Manhattan Contrarian, who often has well-considered things to say,  posted an intriguing and important blog this week. 

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In 2009 the EPA found that CO2 and other “greenhouse gases” endanger human health and welfare because they potentially warm the atmosphere. Many scientists have taken issue with this finding, which has provided the justification for reducing conventional energy sources, raised the cost of energy to consumers, and unrolled massive federal and state spending for manifestly unreliable alternative sources. The Biden administration has pressed this autocracy enabling finding to its bosom, using it to justify regulating everything, — including gas stoves, electric vehicles, air conditioners, home appliances — indeed, anything that makes a good life affordable and efficient.

How well-substantiated was this EPA decision which has so upended our lives and wasted trillions of taxpayer and consumer resources? Not very.

The stated basis for the EF [Endangerment Finding]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.

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CHECC v. EPA, presently in the D.C. Circuit Court of Appeals, presents an opportunity to challenge that weakly supported finding.

The question is whether the appellant CHECC has a sufficient stake in the matter to meet the initial hurdle of what is called “standing.” CHECC (Concerned Household Electricity Consumers Council) is composed of utility payers and the Court is struggling, per Menton, to determine whether they have a sufficient stake to mount a court challenge just because electricity consumers are likely to pay the burden of “without a doubt the single most costly regulatory initiative of all time.”

At the same time,

It is well-established that any person or environmental advocacy organization can obtain standing 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. 

Menton reports that despite then-president Obama’s admission that that under his plan “the price of electricity will necessarily skyrocket” and the experience of consumers in places like Germany and California, the court seems hesitant to grant standing to electric consumers at the same time it grants standing to every group that claims a high-minded but totally “abstract, non-quantifiable, and non-monetary “ interest in the matter. Indeed, in this case, the Court allowed a collection of environmental groups to intervene on the side of the EPA “with no more basis for standing than the generalized claim of an interest in a clean and healthy environment.” That is, they granted the group “standing.”

If the concept of “standing” means anything, some courts seem to have stood it on its head. The D.C. Circuit should allow CHECC which has a clear, predictable, and concrete injury at stake to pursue this challenge.