The issue of standing – Watt with it?


Franz Menton

This morning in Washington, the DC Circuit Court of Appeals held hearings in the Concerned Household Electricity Consumers Council v. EPA case. Such is the case as a hard-line group of citizen petitioners (CHECC) challenges the EPA’s 2009 finding that CO2 and other “greenhouse gases” pose a “hazard” to human health and the planet due to their potential to warm the atmosphere represent well-being. This finding, known as the Endangerment Finding or EF, is the underlying basis for the state-level regulatory assault on the fossil fuel and energy industries currently being waged by the Biden administration.

I attended today’s hearing in my capacity as one of CHECC’s counsel (although my distinguished co-counsel, Harry MacDougald, delivered the hearing). I have had previous posts summarizing the briefing in the case, including this post at the time of filing the Opening Brief in October 2022 and this post in February 2023 after filing the Closing Reply Brief.

My previous contributions to this case have focused on what we attorneys like to call the “merits,” which here means has the EPA articulated a valid scientific basis for its alleged “finding” of human vulnerability to increased atmospheric CO2? On this issue, the EPA’s position is pathetically weak. With mass hysteria gripping essentially all of our major institutions with fear that “climate change” will end the world, one would think that our governmental overlords would at least have a well-rehearsed and coherent history of how that is supposed to happen. But they don’t. The stated basis for the EF is a combination of a temperature series, with nearly half the data produced and populated by computer algorithms, together with model predictions of atmospheric temperature patterns never found in the empirical data when they were collected. Unfortunately, almost nothing in the oral hearing was devoted to these issues.

A little less than all of the argument was more devoted to another topic that we lawyers call “standing.” Since the non-lawyer readership may not be familiar with this subject, I will provide some background information.

Article III of the US Constitution gives the federal court system what it calls “judicial authority” and defines the scope of that authority in Section 2 in relation to what it calls “cases” and “controversies.” These terms have long been interpreted to mean that someone who may qualify to start a federal proceeding must have some sort of genuine interest in the matter. Unlike many European countries, our courts do not consider requests from mere citizen advocates who wish to advance a political cause by obtaining a favorable advisory court decision. The courts use the term “standing” to refer to the requisite personal involvement in the matter required to qualify to bring a claim.

As a starting point, the reputation requirement is frankly a good idea and saves our courts from quite a bit of mischief. However, drawing the line between those who are entitled to benefits and those who are not is proving to be quite difficult, particularly when it comes to challenging regulatory initiatives by the administrative state. The DC Circuit has issued lengthy opinion after length on the issue – some of them 100 pages long – and the Supreme Court has also intervened on numerous occasions. Opinions are confusing and not entirely consistent. Furthermore, the spate of verbiage in the cases provides a convenient smokescreen to cover up the reality of what has happened, which is that the cases as they currently stand give leftist interest groups an advantage in gaining reputation and limited proponents a disadvantage Government trying to challenge federal agency overreach.

As an example that is very relevant to our case, it is well known that any person or environmental advocacy organization can acquire a power to challenge environmental legislation simply by asserting an interest in a clean and healthy environment. This interest is abstract, non-quantifiable and non-monetary; but the courts have said it is sufficient.

What about the interests of CHECC members? You might think (and we think) that their interests are orders of magnitude more worthy than the interests normally asserted by environmental organizations. CHECC members claim that they pay all the electricity bills and that the vulnerability detection is being used deliberately to drive up electricity bills to reduce fossil fuel use. As an example, we used then-candidate Barack Obama’s famous quote (“According to my plan…the price of electricity is bound to explode. Displacement of fossil fuels and promotion of wind and solar power have resulted in electricity prices being two to three times higher than in places that continue to rely on fossil fuels.

But despite what appears to be a very favorable contrast to the environmentalists’ situation, the claim to stand by CHECC is not overt and closed. The panel survey focused entirely on this question: How do you know that electricity prices will rise? Did you provide sufficient evidence for this?

Even as the judges pestered CHECC with these questions, a collection of environmental groups (e.g. American Lung Association, Clean Wisconsin, Appalachian Mountain Club) intervened on that very issue with no basis other than the generalized assertion of an interest in a clean and healthy Environment. Note that these organizations were not just “Amici” or “Friends of the Court”. Rather, they claimed status as parties to the case by “intervening,” people with enough of a stake for their voice to be rightly heard, but on no basis other than concern that temperatures might rise a few degrees in a few years. No one has bothered to raise an objection, as the case law states that this claim is sufficient to confer standing. Needless to say, all of these groups are in favor of keeping the hazard notice and proceeding with a transformation of the energy industry through the power of regulations enacted by unelected bureaucrats.

Meanwhile, EPA’s power conversion imposes its inevitable costs on electricity consumers that will likely amount to at least hundreds of billions of dollars, if not trillions — undoubtedly the costliest regulatory initiative of all time — and the DC circuit appears to be struggling to be an electricity consumer has a sufficient stake in the matter to convey standing. You literally can’t invent this stuff.

It will likely be several weeks, if not months, before we receive the court’s decision.

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