CHECC petitioned DC Circuit to rehearse its position to challenge hazard detection • Watts Up With That?
Here when I retire, my remaining career as a lawyer consists almost exclusively of working on a case at the DC Circuit Court of Appeals, according to the footnote. Concerned Appliances Consumer Council v. EPA. As the case progresses, I will post here.
Mine The most recent update on this case was on May 25thwhen DC Circuit has issued a decision throw us off the ground “standing”. When a lawsuit challenges a regulation issued by a government agency, the “stand by” doctrine requires a party bringing the case to prove some specific type of damage from the challenged regulation, which is EPA’s 2009 determination that CO2 emissions into the atmosphere constitute “dangerous to human health and welfare.” Our program is Hazard Detection that unleashes the onslaught of federal regulations that prevent the consumption of fossil fuels; and that proven fossil fuel containment policies in every jurisdiction have attempted to lead to large increases in electricity prices. But the court in its wisdom ruled that the plaintiffs’ electricity consumers were not “directly governed by the challenged rule” and that we had “failed[ed] to provide any evidence of injury.”
I titled my May 25 post, after that decision, “At CHECC, we fail but don’t come out!” And indeed now we have bounced! On Monday, we submitted a Petition for retrial of En Bancthe term “en banc” means that the hearing we expect will be held by a full court of eleven active judges instead of just the three-man panel that originally heard the case.
Courts accept only a handful of these “en banc” requests in any given year. And so you can say that our odds are long. But then it could be one of the most economically significant lawsuits ever brought before this court, involving an effort to transform regulation across the country’s energy economy as a whole.
So we take this opportunity to point out some of the absurdities of the doctrine of ‘sustainability’ as it has evolved over the years. I have written before (for example, in This post is from April 14 in the case of the oral argument in our case) that the doctrine of “stands” began as a logical idea “to keep the courts from many dangerous acts.” But the problem is, as various cases are brought before the courts, many judges stoop to find a place for the types of politically supported plaintiffs, and at the same time, the standing doctrine is used. as an easy way to get rid of lawsuits brought by politically unsupportive groups of plaintiffs without having to do the hard work of grappling with merit. You won’t be surprised to find that the politically supported category includes people who claim to have been harmed by environmental degradation in any way, regardless of the alleged environmental degradation. how speculative or ambiguous the obligation may be. Often, the entities that claim to stand up to some kind of environmental degradation turn out to be well-funded environmental activism groups, such as the Natural Resources Defense Council, the Environmental Defense Fund, Greenpeace, or similar. Whereas, when a plaintiff is a group of consumers who assert that certain regulations increase costs for consumers, the existing law somehow finds that the impact of regulation on the cost of consumer is not obvious or immediate enough. And so somehow the outcome of permanent doctrine in the courts is a one-way ratchet, where environmental groups seeking more regulation often receive favorable rulings, while consumers less specified search users were removed.
In our current En Banc Rehearsal Petition, we use a few particularly extreme recent precedents to illustrate this point. One is from DC Circuit itself from 2020, captioned Natural Resources Defense Council v. Wheeler. This decision was written by the current Chief Justice of the court, Sri Srinivasan. You may remember him as a leading contender for the 2022 Supreme Court nomination, before President Biden announced that he would consider only one black woman for the position. Either way, the case concerns the NRDC’s request that the EPA be involved in further regulating gases called hydrofluorocarbons, or HFCs, on the grounds that they are “greenhouse gases” like CO2. NRDC managed to stand on the ground one among its members own a portion of coastal real estate that is said to be “threatened” by global warming. From our summary:
There is no confirmation that any damage has actually occurred, nor when it will happen, nor how it can be remedied by a court order with jurisdiction over sea level. parity with the orders of King Canute, but without the humility. . In the real world, there is no evidence to establish any link between greenhouse gas emissions and any presumed enhanced “threat” to coastal assets and any attempt to demonstrate that emissions have led to rapid sea level rise or increased storm activity have both failed. No problem. The court organized as follows:
The petitioners then satisfactorily linked the 2018 Rule to a damaging fact: The 2018 Rule would lead to an increase in HFC emissions, which in turn would lead to an increase in climate change, this would threaten the litigants’ coastal assets.
When you’re an environmental plaintiff like the NRDC, it’s easy.
Another case we point out is the famous one Kelsey Cascadia Rose Juliana v. USA, is currently pending in the County of Oregon after several trips to the Ninth Circuit and once to the Supreme Court. This is the case of a small group of juvenile plaintiffs seeking to ask a court to order the federal government to ban all fossil fuel use on the basis of a declared constitutional right to the climate. stable. In that case, the courts were contending with an aspect of the standing doctrine known as “resistance” (i.e., whether the court has the ability to order the same remedy as the remedy). required), but not with the question of whether the claimants are specific enough. harm themselves to justify their presence in court. From our summary:
The ninth round in 2020 charged the alleged plaintiffs with the “facts of damage” and “traceable” elements (while denying the possibility of remedy) based on the allegations. oblige that:
Kelsey spends time along the Oregon coast in places like Yachats and Florence, and enjoys playing on the beach, swimming in tidal waters and observing unique marine animals. . . . Current and projected droughts and snow shortages caused by Defendant have damaged all of the places Kelsey enjoys visiting, as well as her drinking water and food sources—including wild salmon. . . . Defendants have caused Kelsey psychological and emotional harm due to her fear of climate change, she knows about the effects it will have in her life, and she knows that Defendants are continuing to cause harm. cause harm to her life and welfare.
Contrary to Kelsey Cascadia Rose’s “psychological and emotional damage. . . because . . . fear of climate change,” we covered massive increases in consumer electricity prices in every state that has engaged in systematic fossil fuel containment. At the core of the presentation is this chart, with data from the US Energy Information Administration (under the Department of Energy) as of April 2023:
With the exception of Alaska and Hawaii (where fees are high due to distance and physical difficulty in providing services), all of the states with the highest costs are those with limited programs. fossil fuels, whether the state of California or the RGGI of the Northeast. Many of these fossil fuel ban states have average consumption rates that are twice or above the national average cost of electricity.
I think our Complaint will help you to read some interesting things and I recommend the whole thing to you. (Full disclosure: I drafted most of it, although I had some considerable help from my excellent co-mentor, Harry Macdougald.). With hundreds of billions of dollars in rising electricity costs at stake from regulations that don’t have any significant effect on the climate, you’d think the courts would take notice. But we don’t take that into account.
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