Petition for Writ of Certiorari — Concerned Household Electricity Consumers Council, et al., Petitioners v. Environmental Protection Agency
Supreme Court briefOct 17, 2023
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------CONCERNED HOUSEHOLD ELECTRICITY
CONSUMERS COUNCIL AND
FAIR ENERGY FOUNDATION,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------HARRY W. MACDOUGALD
CALDWELL, CARLSON,
ELLIOTT & DELOACH LLP
Two Ravinia Drive,
Suite 1600
Atlanta, Georgia 30346
(404) 843-1956
hmacdougald@ccedlaw.com
FRANCIS MENTON
Counsel of Record
LAW OFFICE OF
FRANCIS MENTON
85 Broad Street, 18th Floor
New York, New York 10004
(212) 627-1796
fmenton@
manhattancontrarian.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Can the “injury in fact” element of standing, as to
a consumer group challenging a federal agency action,
be established by an evidentiary showing that the policies mandated by that agency action have resulted in
large increases in consumer prices in the places where
they have been implemented?
ii
PARTIES TO THIS PROCEEDING
Petitioners: Concerned Household Electricity Consumers Council, an unincorporated association of the
following individuals: Joseph D’Aleo, Clement Dwyer,
Jr., Scott Univer, Robin Weaver, and James P. Wallace
III.
FAIR Energy Foundation, a 501(c)(3) non-profit
that is not owned by and has no interest in any other
entity.
Respondent: United States Environmental Protection Agency.
Intervenors below: American Lung Association,
American Public Health Association, Appalachian
Mountain Club, Clean Air Council, Clean Wisconsin,
Environmental Defense Fund, National Parks Conservation Association, Natural Resources Council of
Maine.
RULE 29.6 STATEMENT
The Concerned Household Electricity Consumers
Council (CHECC) has no parent company or publicly
held company with a 10% or greater ownership interest in it.
The Fair Energy Foundation (FAIR) has no parent
company or publicly held company with a 10% or
greater ownership interest in it.
iii
RELATED PROCEEDINGS
United States Court of Appeals for the District of
Columbia Circuit:
Concerned Household Electricity Consumers Council, et al. v. EPA, Case No. 221139, Per Curiam Judgment dated May 25,
2023 (unpublished, reproduced in the Appendix at pages 1-8).
Concerned Household Electricity Consumers Council, et al. v. EPA, Case No. 221139, Denial of Petition for Rehearing En
Banc, July 20, 2023. (App. 96-97).
United States Environmental Protection Agency:
Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act; Final Action on Petitions, 87 Fed. Reg. 25,412 (April 29, 2022)
and Decision Document. (App. 9-95).
Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 66,496
(December 15, 2009).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
PARTIES TO THIS PROCEEDING ....................
ii
RULE 29.6 STATEMENT ....................................
ii
RELATED PROCEEDINGS ................................
iii
TABLE OF CONTENTS ......................................
iv
TABLE OF AUTHORITIES .................................
vi
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL PROVISION INVOLVED ....
2
INTRODUCTION ................................................
2
STATEMENT OF THE CASE..............................
7
REASONS FOR GRANTING THE PETITION .....
13
I.
The Court should grant certiorari to make
the requirements of standing consistent
and rational as between consumer groups
and self-styled environmental groups in
cases challenging federal regulations and
actions ........................................................ 14
A. As currently applied, the test for
standing
to
challenge
agency
regulations and actions is completely
disparate as between environmental
plaintiffs seeking additional regulation
and consumer plaintiffs seeking less
regulation ............................................ 15
v
TABLE OF CONTENTS – Continued
Page
1. For the present Petitioners, the
D.C. Circuit held that definitive
and admissible evidence linking
policies of fossil fuel suppression
with higher consumer electricity
prices somehow constituted “no
evidence” of injury in fact ............... 17
2. For favored categories of plaintiffs,
such as environmental plaintiffs, the
lower courts regularly grant standing
based on rank speculation about
inchoate, non-monetary harms.......... 24
B. The test for standing to challenge
agency regulations and actions should
be neutral as between environmental
plaintiffs seeking more regulation and
consumer groups seeking less ............. 29
II.
It is imperative that the rules of standing
not be manipulated to insulate from
judicial scrutiny the one regulation that is
both the single most economically
significant, and also the single most
scientifically flawed, of all the regulations
on the federal books ................................... 30
CONCLUSION..................................................... 34
vi
TABLE OF CONTENTS – Continued
Page
APPENDIX
United States Court of Appeals for the District
of Columbia Circuit, Judgment, May 25,
2023 .................................................................. App. 1
Environmental Protection Agency, Denial of
Petitions, April 29, 2022................................... App. 9
United States Court of Appeals for the District
of Columbia Circuit, Order Denying Rehearing, May 25, 2023 ........................................... App. 96
Seventh Supplement to Petition for Reconsideration ................................................................ App. 98
Excerpts of Brief of Petitioners, United States
Court of Appeals for the District of Columbia
Circuit ........................................................... App. 135
vii
TABLE OF AUTHORITIES
Page
CASES
Alon Refining Krotz Springs v. EPA, 936 F.3d
628 (D.C. Cir. 2019) ...................................................9
Ciba-Geigy Corp. v. EPA, 46 F.3d 1208 (D.C. Cir.
1995) ........................................................................10
Defenders of Wildlife v. Secretary, Department of
the Interior, 354 F.Supp. 2d 1156 (D.Or. 2005) .......28
Ecological Rights Foundation v. Pacific Lumber,
230 F.3d 1141 (9th Cir. 2000) ............................ 27, 28
Group Against Smog & Pollution, Inc. v. EPA,
665 F.2d 1284 (D.C. Cir. 1981) ................................10
Kelsey Cascadia Rose Juliana v. United States,
947 F.3d 1159 (9th Cir. 2020) ..................................25
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) ........................................................... 11, 15, 16
Massachusetts v. EPA, 549 U.S. 497 (2007) ... 9, 13, 27, 33
Natural Resources Defense Council v. Wheeler,
955 F.3d 68 (2020) ...................................................24
Natural Resources Defense Council, Inc. v.
Thomas, 845 F.2d 1088 (D.C. Cir. 1988) .................10
Oljato Chapter of the Navajo Tribe v. Train, 515
F.2d 654 (D.C. Cir. 1975) .........................................10
PPG Indus., Inc. v. Costle, 659 F.2d 1239 (D.C.
Cir. 1981) .................................................................10
Scenic Hudson Preservation Conference v.
Federal Power Commission, 354 F.2d 608 (2d
Cir. 1965) .................................................................28
viii
TABLE OF AUTHORITIES – Continued
Page
Utility Air Regulatory Group v. EPA, 573 U.S.
302 (2014) ................................................................13
West Virginia v. EPA, 597 U.S. ___, 142 S.Ct.
2587 (2022) .............................................. 4, 11, 12, 13
CONSTITUTIONAL PROVISIONS
Article III, Section 2, Clause 1 ............................... 2, 14
STATUTES
28 U.S.C. § 1254 ............................................................1
RULES
D.C. Circuit Rule 28(a)(7) ...........................................18
Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 66,496
(Dec. 15, 2009) ...........................................................7
Endangerment and Cause or Contribute Findings
for Greenhouse Gases Under Section 202(a) of
the Clean Air Act; Final Action on Petitions,
87 Fed. Reg. 25,412 (Apr. 29, 2022) ...................... 1, 9
Federal Rule of Evidence 201 .....................................23
Federal Rule of Evidence 201(b)(2) ............................23
Federal Rule of Evidence 803(8)(A)(ii) .......................23
ix
TABLE OF AUTHORITIES – Continued
Page
Greenhouse Gas Standards and Guidelines for
Fossil Fuel-Fired Power Plants, 88 Fed. Reg.
33,240 (May 23, 2023) .............................................12
Multi-Pollutant Emissions Standards for Light
and Medium-Duty Vehicles, 88 Fed. Reg. 29,184
(May 5, 2023) ...........................................................12
TREATISES
RESTATEMENT THIRD OF TORTS, § 47 Negligent
Conduct Directly Inflicting Emotional Harm
on Another ...............................................................26
1
OPINIONS BELOW
The opinion of the Court of Appeals for the D.C.
Circuit in Concerned Household Electricity Consumers
Council, et al. v. EPA (Case No. 22-1139, Per Curiam
Judgment dated May 25, 2023), is unpublished, and is
reproduced in the Appendix at pages 1-8.
The D.C. Circuit’s denial of Petitioners’ Petition for
Rehearing En Banc is reproduced at App. 96-97.
The final action of the Environmental Protection
Agency denying Petitioners’ Petition for Reconsideration of its Greenhouse Gas Endangerment Finding is
reported at Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section 202(a)
of the Clean Air Act; Final Action on Petitions, 87 Fed.
Reg. 25,412 (April 29, 2022); a linked “Decision Document” is reproduced at App. 9-95.
---------------------------------♦---------------------------------
JURISDICTION
The Judgment of the D.C. Circuit was entered on
May 25, 2023. The Petition for Rehearing En Banc was
denied on July 20, 2023. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
2
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Article III, Section 2,
Clause 1:
“The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their Authority . . . [and] to Controversies to
which the United States shall be a Party. . . .”
---------------------------------♦---------------------------------
INTRODUCTION
In this case the D.C. Circuit ducked the merits of
the single most significant challenge to a regulation
currently pending in the federal court system. The
means employed by the Court of Appeals to avoid the
merits was to impose a test for standing that is inconsistent with the standards applied for more favored
categories of plaintiffs throughout the federal courts,
including in the D.C. Circuit itself. The court’s decision,
if allowed to stand, effectively makes the regulation in
question – which is likely the most economically significant regulation in the entire body of federal regulations – immune from court scrutiny of any kind.
The requirement to demonstrate “standing” is
constitutionally required and is understandably fundamental to the granting of access to a plaintiff in
the federal court system. However, the lower courts
have manipulated the doctrine of standing in such a
way that favored categories of plaintiffs, like
3
environmental plaintiffs seeking increased government regulation, get automatic standing based on even
the most speculative assertions of future environmental conditions, such as that droughts or sea levels may
increase; while at the same time less favored groups,
including consumer groups like Petitioners here who
are seeking court review that could reduce overreaching government regulation, are denied standing despite showings of concrete monetary harm based on
widely recognized and indisputably accurate government statistical data.
The present case takes the manipulation of the
standing doctrine by the lower courts to a whole new
level. This case concerns an Environmental Protection
Agency (“EPA”) regulation called the Greenhouse Gas
Endangerment Finding (the “Endangerment Finding”), that is likely the most economically consequential regulation of all the thousands that have been
issued by federal agencies. The Endangerment Finding
is driving and will continue to drive massive additional
costs to consumers – at least in the hundreds of billions
of dollars in the aggregate, and tens of thousands of
dollars per capita – and Petitioners proved that contention by submitting evidence in the Court of Appeals
consisting of definitive and uncontestable statistical
data from government and other agencies. The Court
of Appeals held this clear evidence to constitute “no
evidence,” and summarily denied the Petitioners
standing.
This Court should grant certiorari in the present
matter to level the playing field by making clear that
4
showings of monetary harm based on definitive statistical data are a valid method to meet the standing test.
In West Virginia v. EPA, 597 U.S. ___, 142 S.Ct.
2587 (2022), this Court held that when “history and
the breadth of the authority that [an agency] has asserted,” and the “economic and political significance” of
that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority,
then the agency must point to “clear congressional authorization” for the authority it claims. On that basis,
this Court invalidated a massive attempted transformation of the electricity-generation sector of the economy known as the Clean Power Plan, which had been
issued by EPA in 2015.
Yet immediately following issuance of the West
Virginia decision, EPA, together with other federal
agencies as well, got to work on even more massive and
transformative regulatory initiatives, to replace and
far exceed in economic impact the invalidated Clean
Power Plan. The new initiatives have even less claim
for clear authorization in congressionally-passed statutes. In 2023, and only as examples, proposed regulations have emerged from EPA that would completely
upend the vehicle-manufacturing and electricity-generating sectors. The supposed point behind these extraordinary regulatory initiatives is to reduce and
ultimately eliminate the use of hydrocarbon (or “fossil”) fuels, which currently provide approximately 80%
of the energy used in our modern economy.
5
The entire basis for this ongoing regulatory avalanche is the “Endangerment Finding.” The Endangerment Finding is a regulation originally issued by EPA
in 2009. The Endangerment Finding is the single most
economically-significant regulation currently on the
federal books. It claims to determine that CO2 and
other “greenhouse gases” constitute a “danger to human health and welfare.” On that basis the administrative state, led by EPA, asserts the ability to order
the transformation of about 80% of all use of energy by
the American people. These regulatory initiatives will
impose costs on the American economy and on consumers and citizens far in excess of anything ever before
undertaken by the regulatory state, at the minimum
in the hundreds of billions of dollars, and more likely
far into in the trillions to tens of trillions. The increased costs will necessarily ultimately fall on consumers of electricity even if they are not directly
regulated because the regulated entities will have no
choice but to either pass the costs on to consumers or
go out of business.
Petitioners in this matter are consumers of electricity, who are right in the crosshairs of EPA’s regulatory onslaught. Petitioners have been seeking since
2017 to bring to bear new scientific research and evidence that clearly invalidate the Endangerment Finding. On that basis, they seek to have the courts order
EPA to reconsider, and ultimately rescind, the Endangerment Finding.
Petitioners’ efforts ran into a wall in the D.C. Circuit, which on May 25, 2023 issued its Judgment
6
dismissing Petitioners’ request that EPA be ordered to
reconsider the Endangerment Finding. (App. 1-8). The
stated basis for the decision of the Court of Appeals is
that the Petitioners lack standing to bring their claims,
and in particular, that Petitioners failed to prove an
“injury in fact” and “causal connection” to the conduct
at issue. (App. 4).
The Court of Appeals’ decision as to standing is
completely inconsistent with the rules for standing
applied to other, more favored groups seeking to challenge federal actions or regulations. In particular, environmental groups regularly are found to have shown
the “injury in fact” and “causal connection” elements of
standing by means of claimed fears and anxieties
about hypothetical and inchoate environmental degradation projected to happen at unspecified times far in
the future. Here, Petitioners presented definitive data,
most issued by the government itself, proving the uncontestable association of increased consumer electricity prices with policies of fossil fuel suppression in
jurisdictions that have pursued such policies. These
data are admissible in evidence under the Federal
Rules of Evidence. But the Court of Appeals held that
Petitioners lack standing because they are not directly
the subject of the regulation in question and had provided “no evidence” of injury. (App. 4).
It is in the nature of the Endangerment Finding
that no person or entity is “directly” subject to the regulation in the sense in which the D.C. Circuit uses that
term. The Endangerment Finding itself is only the
foundation for the oncoming regulatory avalanche. But
7
it is also the necessary basis of all the current and
forthcoming energy and greenhouse gas regulations,
and for that reason is the single most economically significant regulation on the books. If Petitioners cannot
challenge it for the reason set forth by the Court of Appeals, then nobody can. And then we will have to wait
multiple years for challenges to the new vehicle and
power plant and other rules to reach this court, while
meanwhile consumer electricity prices multiply by a
factor of three or five or ten, and the entire domestic
vehicle-manufacturing sector gets put out of business.
In a purportedly constitutional republic, the law of
standing cannot be so twisted as to shield from judicial
scrutiny the foundation of an agency’s self-issued writ
of boundless regulatory authority.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
On December 15, 2009, EPA published in the Federal Register a lengthy set of “findings” with the title
“Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean
Air Act,” 74 Fed. Reg. 66,496, et seq. (the “Endangerment Finding”). The Endangerment Finding purported
to determine that carbon dioxide (“CO2”) and other socalled “greenhouse gases” constitute a “danger to human health and welfare.” The Endangerment Finding
laid out its claimed scientific basis in the form of what
it called three “lines of evidence.”
8
The Endangerment Finding then became the essential basis for a barrage of regulatory initiatives,
both from EPA and other agencies, seeking a sweeping
transformation of the entire U.S. economy, in large part
through the suppression of the use of the predominant
form of energy, namely hydrocarbon (or “fossil”) fuels.
These regulatory initiatives in most cases proceeded
without support, or with only the most tenuous support, from statutes passed by Congress. Among many
such initiatives entirely dependent on the Endangerment Finding, the most significant was the “Clean
Power Plan,” 80 Fed. Reg. 64,661 (October 23, 2015),
which sought to mandate a transformation of the electricity-generation sector of the economy.
In the years following adoption of the Endangerment Finding, it became abundantly clear that the
claimed scientific basis for the Finding was completely
lacking, that EPA’s claimed three “lines of evidence” in
support of the Finding had been falsified by empirical
data, and that the Finding was in fact based on pseudoscience.
On January 20, 2017, Petitioner Concerned
Household Electricity Consumers Council (“CHECC”)
filed a Petition with EPA seeking reconsideration of
the Endangerment Finding based on scientific research and evidence that had emerged since the Finding was adopted. CHECC is a group of consumers, all
of whom purchase electricity. In its initial Petition for
Reconsideration, CHECC proved its standing and that
of its members via an evidentiary showing, based on
public records, of the definitively-established link
9
between government fossil fuel suppression measures
and increased electricity prices to consumers.
Throughout the period 2017 through 2021,
CHECC filed some seven Supplements to its Petition,
each bringing to EPA’s attention additional scientific
research and evidence demonstrating the invalidity
of its purported Endangerment Finding. Petitioner
Fair Energy Foundation (“FAIR”) filed a separate Petition for Reconsideration of the Endangerment Finding
in May, 2019, which asserted the same or similar scientific objections, and further asserted that Massachusetts v. EPA, 549 U.S. 497 (2007), should be
reconsidered in light of the Major Questions Doctrine,
a test it would surely fail.
EPA issued a final denial of the two Petitions for
Reconsideration on April 29, 2022. Endangerment and
Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act; Final Action
on Petitions, 87 Fed. Reg. 25,412, and linked “Decision
Document.” (App. 9-95).
On June 27, 2022, CHECC and FAIR filed timely
Petitions for Review of the agency action with the D.C.
Circuit. The Court of Appeals had jurisdiction to review EPA’s Denial of the Petitions because (1) the two
petitions each sought a rulemaking and were denied.
Alon Refining Krotz Springs v. EPA, 936 F.3d 628, 642
(D.C. Cir. 2019) (“In particular, the [Supreme] Court
noted that section 7607(b)(1) ‘expressly permits review’ of EPA’s ‘rejection of [a] rulemaking petition.’
[Massachusetts v. EPA, 549 U.S. 497] at 520, 528.”); and
10
(2) denial was a final agency action subject to review
under Oljato Chapter of the Navajo Tribe v. Train, 515
F.2d 654 (D.C. Cir. 1975); PPG Indus., Inc. v. Costle, 659
F.2d 1239, 1250 (D.C. Cir. 1981); Group Against Smog
& Pollution, Inc. v. EPA, 665 F.2d 1284, 1290 (D.C. Cir.
1981); Natural Resources Defense Council, Inc. v.
Thomas, 845 F.2d 1088 (D.C. Cir. 1988); and Ciba-Geigy
Corp. v. EPA, 46 F.3d 1208, 1210 (D.C. Cir. 1995).
On the issue of their standing, in their briefing to
the D.C. Circuit, CHECC and FAIR made an evidentiary presentation as to the definitively-established
link between government policies suppressing the use
of hydrocarbon fuels in electricity generation and rapidly increasing price of electricity to consumers. (App.
135-141). The presentation as to standing in the brief
to the Court of Appeals was based on the same approach used in the original 2017 Petition for Reconsideration, but also incorporating updated government
data from the intervening years up to 2022.
The D.C. Circuit held oral argument on the
CHECC/FAIR appeal on April 14, 2023. On May 25,
2023 the court issued a Per Curiam Judgment dismissing the appeals of CHECC and FAIR. The sole ground
for the dismissal was a determination that CHECC
and FAIR lacked standing to pursue their claims. The
court held, “Petitioners fail to meet their burden to
establish standing because they provide no evidence
that they or any of their members have been injured
by the Endangerment Finding. . . . CHECC’s brief
does not identify a single regulation based on the
11
Endangerment Finding that has affected its members.” (App. 4, 6).
Of the three parts of the standing test set out in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992),
the Court of Appeals focused only on the first part of
the test, namely whether Petitioners had sufficiently
shown an “injury in fact.” The court thereby seemingly
determined that widely available and unquestionably
accurate data as to the association of fossil fuel suppression and higher electricity prices – including official U.S. federal and state government data specifically
admissible under the Federal Rules of Evidence –
somehow constitute “no evidence” when it comes to
establishing consumer standing to challenge a federal
regulatory action. The court also disingenuously
feigned unawareness of the impending regulatory onslaught against hydrocarbon fuels, particularly as
used for electricity generation, that everyone knew the
Biden administration was getting ready to unleash under the banner of the Endangerment Finding.
On June 30, 2022 – three days after the present
case had been initiated in the D.C. Circuit – this Court
decided West Virginia v. EPA, 597 U.S. ___, 142 S.Ct.
2587 (2022). West Virginia held that the transformation of the electricity sector of the U.S. economy embodied in EPA’s Clean Power Plan was invalid under
this Court’s Major Questions Doctrine. However, West
Virginia left the Endangerment Finding in place. As a
consequence, EPA immediately began planning a renewed assault on the energy economy and on electricity consumers, in an end run against West Virginia v.
12
EPA. The renewed assault is entirely based on the
pseudoscientific Endangerment Finding that remained in place. As of the time of briefing and argument in the present case in the D.C. Circuit in the fall
of 2022 to April 2023, the exact nature of the renewed
regulatory assault had not emerged.
On May 5, 2023 – almost immediately after the
April 14, 2023 oral argument in this case – EPA issued
a new proposed Rule as to consumer vehicles, titled
Multi-Pollutant Emissions Standards for Light and
Medium-Duty Vehicles, 88 Fed. Reg. 29,184 (May 5,
2023) (the “Vehicle Rule”). Then, on May 23, EPA issued another proposed rule titled Greenhouse Gas
Standards and Guidelines for Fossil Fuel-Fired Power
Plants, 88 Fed. Reg. 33,240 (May 23, 2023) (the “Power
Plant Rule”). The Vehicle Rule, upon taking effect, will
effectively ban all consumer vehicles other than electric ones; and the Power Plant Rule will effectively
render illegal all use of hydrocarbon fuels in the generation of electricity by some point in the 2030s. The
Power Plant Rule is an even more sweeping effort to
transform the electricity generation sector of the economy than was the Clean Power Plan invalidated by
this Court under the Major Questions Doctrine in West
Virginia v. EPA little more than one year ago. This is
EPA thumbing its nose at this Court, with the pseudoscientific Endangerment Finding as its sole basis since
all subsequent Endangerment Findings are explicitly
premised on the original. It is a novelistic irony that so
far two of EPA’s major regulatory assaults on fossil
fuels, the Tailoring Rule and the Clean Power Plan,
13
were invalidated on major question grounds,1 while
the root of EPA’s regulatory authority over greenhouse
gas emissions, Massachusetts v. EPA’s interpretation of
“air pollutant” to include greenhouse gases, is itself
fundamentally irreconcilable with the Major Questions Doctrine.
Even though the current regulatory onslaught
against consumers and the economy is entirely based
on the Endangerment Finding, under the D.C. Circuit’s
ruling, no consumer has shown or can show standing
to challenge this Finding. Prospective parties other
than consumers have no financial incentive to do so.
Given the extraordinary magnitude of the consequences of the regulation in question, this matter urgently calls for this Court’s review.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
The Court should hear this case for the following
reasons:
1.
The rules of standing articulated by the Court of
Appeals in this case are inconsistent with the
rules applied to more favored groups challenging
government actions or regulations in courts
throughout the country, and indeed in the D.C. Circuit itself.
1
See Utility Air Regulatory Group v. EPA, 573 U.S. 302
(2014) and West Virginia v. EPA, 597 U.S. ___, 142 S.Ct. 2587
(2022).
14
2.
The Endangerment Finding is the most economically significant regulation on the federal books today. It has been thoroughly undermined,
discredited and invalidated by scientific research
and data that have emerged since its issuance in
2009. It cries out for judicial scrutiny and remand
to the agency for reconsideration and rescission. It
is unconscionable for the courts to duck scrutiny
of the Endangerment Finding based on a specially-engineered approach to standing which is
applied to disqualify politically-disfavored consumer groups who challenge highly consequential
environmental regulations, while meanwhile an
entirely different approach to standing gets applied to politically-favored environmental plaintiffs seeking more regulation.
I.
The Court should grant certiorari to make
the requirements of standing consistent
and rational as between consumer groups
and self-styled environmental groups in
cases challenging federal regulations and
actions.
Standing is a fundamental requirement for access
of a party to federal court, deriving from the limitation
of federal court jurisdiction to “cases” and “controversies” found in Article III, Section 2, Clause 1 of the Constitution.
But in the context of challenges to federal agency
regulations and actions, and particularly in the environmental area, the doctrine of standing over the years
has been twisted beyond recognition. Somehow the
15
lower courts have found ways to bend over backwards
to allow claims by politically-favored parties to proceed, while much more concrete and definitive showings of injury by less politically-favored plaintiffs get
dismissed. The divide is most dramatic in the distinction between the sorts of allegations deemed sufficient
to establish standing for an individual or group alleging injury from some form of harm to the environment
(politically favored) versus the situation of the present
case, where plaintiff consumers challenge an overreaching environmental regulation for imposing massive costs on consumers (politically disfavored). As
illustrated by the present case, the latter are held to a
far more demanding, and completely inconsistent,
standard. This court should grant certiorari to rectify
that imbalance.
A. As currently applied, the test for standing to challenge agency regulations and
actions is completely disparate as between environmental plaintiffs seeking
additional regulation and consumer
plaintiffs seeking less regulation.
The test for a plaintiff to establish standing, as
articulated in the leading cases from this Court, would
appear on its face to be neutral as to the type of plaintiff bringing the claim. The classic three-part test for
standing is set forth in Lujan v. Defenders of Wildlife,
504 U.S. 555, 559 (1992):
[O]ur cases have established that the irreducible constitutional minimum of standing
16
contains three elements. First, the plaintiff
must have suffered an “injury in fact” – an invasion of a legally protected interest which is
(a) concrete and particularized, . . . and (b) actual or imminent, not “conjectural” or “hypothetical,”. . . . Second, there must be a causal
connection between the injury and the conduct complained of. . . . Third, it must be
“likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable decision.”
In the present case, only the first two parts of the
Lujan test – the requirement for an “injury in fact” and
“causal connection” – are at issue.
Certainly nothing about the words of Lujan would
suggest a stark divide in the standing test between
those who sue to seek more environmental regulation
versus those who sue to seek less. Indeed, from the
words of Lujan, one might surmise that a consumer
group alleging harm from additional economic costs
imposed by regulation would have a clearer case for establishing standing than an environmental group
claiming standing based on non-monetary and inchoate environmental harm, often far in the future. Imminent substantial monetary harm would be much more
“concrete and particularized” than inchoate environmental degradation some time far in the future. But in
practice that is not how it works. In practice, as illustrated by this case, even the clearest showing of imminent monetary harm from Endangerment Findinginduced regulation gets brushed aside, while the most
speculative projections of inchoate environmental
17
degradation where the plaintiff seeks more regulation
are always deemed sufficient.
The contrast is stark between how the D.C. Circuit
dealt with the present case to how it and the other
Courts of Appeals deal with claims brought by environmental plaintiffs seeking to have agencies impose
additional regulation allegedly to protect the environment.
1. For the present Petitioners, the D.C.
Circuit held that definitive and admissible evidence linking policies of
fossil fuel suppression with higher
consumer electricity prices somehow constituted “no evidence” of injury in fact.
In the present case, Petitioners cited real world
evidence of the clear linkage between policies of fossil
fuel suppression and higher consumer electricity
prices to prove the “injury in fact” and “causal connection” elements of standing. But the Court of Appeals
simply ignored that evidence, and stated as follows:
Petitioners fail to meet their burden to establish standing because they provide no evidence that they or any of their members have
been injured by the Endangerment Finding.
(App. 4). Further to its statement that Petitioners had
submitted “no evidence” of injury in fact, the court criticized Petitioners for not submitting affidavits of their
18
members, and then added that Petitioners had not submitted “other evidence” to establish standing:
[P]etitioners submitted no affidavits or other
evidence to establish standing, instead merely
arguing in their briefs that the Endangerment Finding has injured them or their members.
(App. 5). Continuing its theme that Petitioners’ showing of standing had somehow been deficient, the court
emphasized once again a supposed requirement of
“additional affidavits,” and ended by citing its Rule
28(a)(7), which it stated “codifie[d] this requirement in
our local rules.” Id.
It is all nonsense. Neither D.C. Circuit Rule
28(a)(7) nor any other Rule of the D.C. Circuit requires
or mentions submitting affidavits as a requirement for
establishing standing as separate items with an appellant’s brief. The relevant portions of D.C. Circuit Rule
28(a)(7) read as follows:
(7) Standing. In cases involving direct review in this court of administrative actions,
the brief of the appellant or petitioner must
set forth the basis for the claim of standing.
This section, entitled “Standing,” must follow
the summary of argument and immediately
precede the argument. When the appellant’s
or petitioner’s standing is not apparent from
the administrative record, the brief must include arguments and evidence establishing
the claim of standing.
19
The word “affidavits” does not appear. Granted, certain
D.C. Circuit case law does suggest, in dictum, that an
appellant can submit affidavits with its brief when
standing is an issue. However, nothing in the D.C. Circuit Rules or case law states that the submission of
affidavits is a requirement.
Moreover, it is anomalous, to say the least, for a
court of review to receive and evaluate without any
fixed standards the weight and credibility of original
evidence as if it were a fact-finding body. The process
is entirely ad hoc and improvisational from one case to
the next.
Nor could affidavits be a requirement to establish
standing, because in many cases – this one being an
obvious example – the harm to petitioners resulting
from the regulation at issue is not an appropriate
subject for sworn testimonial statements of the petitioners. The connection between policies of fossil fuel
suppression and increasing consumer electricity prices
is not something that a consumer can know of personal
knowledge so as to swear out an affidavit. Rather, the
connection can only be known and proved by data
compiled and published by statistical agencies as to
amounts of electricity production from fossil fuels versus renewables, and other data from statistical agencies as to consumer electricity prices in the same
locations.
In other words, the entire logic of the D.C. Circuit
Judgment is a makeweight concocted to rationalize
getting rid of politically disfavored petitioners on a
20
technicality, without having to grapple with the merits.
This in spite of the fact that the “injury in fact” to the
Petitioners will easily be in the tens of thousands of
dollars each.
Meanwhile, Petitioners of course did submit exactly the sorts of evidence most pertinent to proving
injury in fact and causation, namely evidence from
statistical agencies showing production of electricity
by generation source and consumer electricity prices
for jurisdictions that have adopted policies of fossil fuel
suppression. This showing appears at pages 30-34 of
Petitioners’ Opening Brief in the D.C. Circuit. (App.
135-141).
Although such data exist for many jurisdictions
around the world, due to space limitations in the brief,
Petitioners focused on two particular jurisdictions,
California and Germany. California is the state among
U.S. states, that has proceeded the farthest in building
wind and solar facilities and suppressing fossil fuels.
In Europe, among the large countries, Germany is the
one that has proceeded farthest with the same policies.
(Denmark has proceeded even farther than Germany,
but it is a small country, and definitive data for Denmark in the English language are harder to find.)
In their D.C. Circuit brief as to California, and as
to percentage of electricity generation from wind and
solar, Petitioners obtained then-most recent 2020 data
from the California Department of Energy. For average
consumer electricity prices for California and the rest
of the U.S., Petitioners obtained data for the same year
21
from the Energy Information Administration (part of
the federal Department of Energy). The California
data presented showed the dramatic consequences of
California’s fossil fuel suppression. In 2020 California
got a U.S.-leading 24.36% of its electricity from wind
and solar, while its consumers paid an average price of
18.48 cents per kWh. The 18.48 cents represented an
increase from 15.62 cents per kWh just five years previously in 2015, as California ramped up its wind and
solar generation and scaled back fossil fuels. Meanwhile, the 18.48 cents average price paid by consumers
in California represented almost a 70% premium over
the average price paid by other U.S. electricity consumers, which in 2020 was 10.93 cents per kWh. (App. 136137).
The following links to official government data
sites were provided in the brief to the D.C. Circuit to
back up these figures as to California (and as to average consumer electricity prices for the entire U.S.):
California Department of Energy – https://www.energy.ca.gov/
data-reports/energy-almanac/california-electricity-data/
2021-total-system-electric-generation/2020 (last visited Oct. 3, 2023); U.S. Energy Information Administration – https://www.eia.gov/electricity/monthly/
epm_table_grapher.php?t=epmt_5_6_a (last visited
Oct. 3, 2023). (App. 136-137). If one follows that EIA
link today, one finds data for 2022 and 2023 instead of
2020 and 2021. It turns out that as California has continued its mad program of suppressing fossil fuels, its
average consumer electricity prices increased to 28.96
cents per kWh in 2022 and 31.22 cents in 2023. (The
22
same EIA chart shows the U.S. average consumer electricity price for 2023 as 16.11 cents per kWh. That
means that California’s average price is now very
nearly double the U.S. average.)
Petitioners’ D.C. Circuit Opening Brief then cited
comparable definitive data for Germany. The data as to
percent of electricity generation from renewables came
again from the U.S. EIA. The data for average German
consumer electricity prices came from a Germany-focused English-language site called Clean Energy Wire,
which in turn obtained the data from the German Association of Energy and Water Industries. The following links to these sources were provided to the Court
of Appeals: U.S. Energy Information Administration –
http://www.eia.gov/todayinenergy/detail.php?id=26372
(last visited Oct. 3, 2023); Clean Energy Wire –
https://www.cleanenergywire.org/factsheets/what-germanhouseholds-pay.2 (App. 137). The cited data showed
that Germany was obtaining more than 30% of its electricity from wind and solar sources, and that its average consumer electricity price in 2021 was 32.16 cents
per kWh. If one goes to the same Clean Energy Wire
link today, one finds that the average German consumer electricity price for the second half of 2022 was
40.07 cents per kWh – nearly two-and-a-half times the
average U.S. price.
2
That link is now dead. An updated version of this fact sheet
is available at https://www.cleanenergywire.org/factsheets/whatgerman-households-pay-electricity (last visited Oct. 3, 2023).
23
All of this definitive information most assuredly
qualifies as “evidence” of the harm to electricity consumers from suppressing fossil fuels and increasing
the percentage of electricity generation from wind and
solar. The information is evidence both in the informal
sense of being exactly what a rational person would
consider to determine if the claim of consumer harm
were true; and it is also “evidence” in the sense that it
would be admissible in evidence under the Federal
Rules of Evidence if this were a trial in a federal court.
The information is formally admissible in evidence via
judicial notice under Federal Rule of Evidence
201(b)(2):
The court may judicially notice a fact that is
not subject to reasonable dispute because it:
. . . (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
The cited data from government sources (which is
nearly all of it) is also separately admissible as “public
records” under Federal Rule of Evidence 803(8)(A)(ii):
The following are not excluded by the rule
against hearsay, regardless of whether the declarant is available as a witness: . . . (8) Public
Records. A record or statement of a public office if: . . . (A) it sets out: . . . (ii) a matter observed while under a legal duty to report. . . .
Even if it weren’t the test of Fed.R.Evid. 201, these
data on percentage of electricity generation from wind
and sun, and on consumer electricity prices, are widely
published, well-known, and not subject to reasonable
24
dispute. They are evidence in every sense of the word,
and indeed definitive evidence. Only willful blindness
could obscure that fossil fuel suppression increases the
consumer cost of electricity. Requiring individual consumer affidavits to establish what is obvious from admissible government statistics is no more than a
pretext for avoiding the merits – which are devastating
to the validity of the Endangerment Finding.
2. For favored categories of plaintiffs,
such as environmental plaintiffs, the
lower courts regularly grant standing based on rank speculation about
inchoate, non-monetary harms.
The economic injury asserted by Petitioners in
this matter is large and definitively-established – yet
was held insufficient. Meanwhile, for individuals or
groups that are politically favored, the law of the D.C.
Circuit and other circuits recognizes standing based
on purported harms that are undetectably small, noneconomic, inchoate, aesthetic, subjective, or even just
predicted by models that have never been validated
by real world evidence. In environmental cases courts
consistently recognize standing even when the realworld evidence definitively refutes the claim of harm
or where the harm is totally undetectable by any
means known to science.
Consider Natural Resources Defense Council v.
Wheeler, 955 F.3d 68, 76-77 (2020). That is the most recent case from the D.C. Circuit granting standing to an
25
environmental claimant asking for additional regulation. There, NRDC claimed standing to challenge an
EPA regulation based on an assertion by one member
that his coastal property was allegedly “threatened” by
climate change. There was no assertion that any of the
harm had actually yet occurred, nor when it would occur, nor how it could be redressed by a court order that
would have the same power over sea level as the commands of King Canute, but without the humility. In the
real world, no scientifically valid evidence has ever
established any link between greenhouse gas emissions and any supposed enhanced “threats” to coastal
property, and all attempts to show that such emissions
have led to accelerating sea level rise or increased hurricane activity have failed. No matter. The Court held
as follows:
Petitioners then have adequately linked the
2018 Rule to an injury-in-fact: the 2018 Rule
will lead to an increase in HFC emissions,
which will in turn lead to an increase in climate change, which will threaten petitioners’
coastal property.
Or consider Kelsey Cascadia Rose Juliana v. United
States, 947 F.3d 1159 (9th Cir. 2020). That case alleges
a constitutional right to a stable climate and asks the
court to order the U.S. government to force an end to
all fossil fuel use in this country. The Ninth Circuit in
2020 held plaintiffs had sufficiently alleged the “injury
in fact” and “traceability” elements of standing (while
rejecting redressability) based on allegations that:
26
Kelsey spends time along the Oregon coast in
places like Yachats and Florence and enjoys
playing on the beach, tidepooling, and observing unique marine animals. . . . The current
and projected drought and lack of snow
caused by Defendants are already harming all
of the places Kelsey enjoys visiting, as well as
her drinking water, and her food sources – including wild salmon. . . . Defendants have
caused psychological and emotional harm to
Kelsey as a result of her fear of a changing
climate, her knowledge of the impacts that
will occur in her lifetime, and her knowledge
that Defendants are continuing to cause
harms that threaten her life and wellbeing.
Complaint for Declaratory and Injunctive Relief, 2015
WL 4747094 (D.Or.). In tort law the impact rule keeps
such patent nonsense out of court. See RESTATEMENT
THIRD OF TORTS, § 47 Negligent Conduct Directly Inflicting Emotional Harm on Another. It is no credit to
administrative law that it accepts harms tort law has
rejected for hundreds of years.
If Petitioners in the present case were not obliged
to spend more on electricity, they would also have more
disposable income left over for “playing on the beach,
tidepooling, and observing unique marine animals.”
They might even derive a certain aesthetic or economic
satisfaction from observing lower electric bills, just as
the Juliana plaintiffs enjoy observing unique marine
animals. The causal chain to higher electricity prices
cited by Petitioners is far more direct and obvious
than the speculative and neurotic chain of fallacious
27
inferences held sufficient in NRDC v. Wheeler, Juliana
and Massachusetts v. EPA.
The linchpin of the Juliana plaintiffs’ claim of
injury is the “projected drought and lack of snow” due
to “climate disruption.” In reality, many areas in the
Pacific Northwest had well above normal snow last
winter. Many western ski resorts have just experienced
abundant if not record snow. Yet somehow even empirical falsification of the Juliana plaintiffs’ speculative
lamentations poses no problem to their assertion of injury in fact.
Many dozens of cases can be found throughout the
lower courts demonstrating the often non-economic,
conjectural, and/or aesthetic nature of a showing that
will be deemed sufficient to establish the injury in fact
element of standing when the plaintiff is an environmentalist seeking more regulation. Here are just a
handful of examples:
•
In Ecological Rights Foundation v. Pacific
Lumber, 230 F.3d 1141, 1147 (9th Cir. 2000),
defendant had a sawmill on Yager Creek,
while plaintiffs alleged they used the creek for
recreation. Plaintiffs averred that they “particularly enjoy their visits because they can
view wildlife in and around the creek,” and
claimed that they “fear that runoff from Pacific Lumber’s two facilities is damaging the
creek and its wildlife.” The District Court had
dismissed for lack of standing, but the Ninth
Circuit reversed as to several plaintiffs, holding “The ‘injury in fact’ requirement in
28
environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular
place, or animal, or plant species and that that
interest is impaired by a defendant’s conduct.”
•
Plaintiffs in Defenders of Wildlife v. Secretary,
Department of the Interior, 354 F.Supp. 2d
1156, 1159 (D.Or. 2005) challenged the proposed removal of the gray wolf from the Interior Department’s list of endangered species.
The court quoted the language of the Ninth
Circuit from Ecological Rights Foundation,
and then applied it, stating “The affidavits
submitted by the plaintiffs demonstrate that
individual members have an aesthetic or recreational interest in observing wolves.” That
was deemed sufficient to establish standing.
•
Scenic Hudson Preservation Conference v.
Federal Power Commission, 354 F.2d 608, 616
(2d Cir. 1965) is the seminal case establishing
standing for an environmental plaintiff for a
matter of pure aesthetics. Plaintiffs alleged
that the construction of a pumped storage
power facility on Storm King Mountain along
the Hudson River would impair their views.
On the issue of standing, the Second Circuit
held: “In order to insure that the Federal
Power Commission will adequately protect
the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and
conduct have exhibited a special interest in
such areas, must be held to be included in the
29
class of “aggrieved” parties under § 313(b) [of
the Federal Power Act].
Thus, the contrast between the treatment of Petitioners in the present matter and of favored environmental plaintiffs is stark. For a favored environmental
plaintiff, purely non-economic, aesthetic and recreational assertions have been held clearly sufficient to
establish standing to sue in federal court. And when it
comes to litigation involving assertions of “climate
change,” wild Chicken Little speculation as to imaginary future harm, even when definitively refuted by
subsequent events after the filing of the complaint, is
nonetheless sufficient to confer standing.
B. The test for standing to challenge
agency regulations and actions should
be neutral as between environmental
plaintiffs seeking more regulation and
consumer groups seeking less.
It is totally unacceptable for the federal court system to be applying standing rules in cases of environmental regulation that uniformly allow access to the
courts by environmental claimants seeking more regulation, while denying access to the courts to consumer
groups seeking less regulation.
Petitioners here are not challenging existing decisions granting standing to environmental plaintiffs.
But they do seek a rule of law that would put consumer
groups asking for reduced regulation on equal footing
to obtain access to federal courts. That could be
30
accomplished in substantial part by a decision that
presentation of uncontested statistical evidence linking certain regulatory policies to higher consumer
costs is a valid method to demonstrate standing.
II.
It is imperative that the rules of standing
not be manipulated to insulate from judicial scrutiny the one regulation that is
both the single most economically significant, and also the single most scientifically
flawed, of all the regulations on the federal
books.
The Endangerment Finding that is the subject of
the present Petition is the single most economically
significant of all the regulations ever issued by the federal government. It forms the entire basis for the current all-of-government avalanche of regulations that
supposedly are going to “save the planet” by eliminating the most reliable and cost-effective energy sources
from the American way of life. This avalanche of regulations includes not just the Power Plant Rule and the
Vehicle Rule discussed earlier in this Petition, but dozens of more rules and proposed rules and administrative actions of every sort from every corner of the
bureaucracy: actions to suppress drilling for oil and
gas, actions to block pipelines from getting built, actions to end energy resource extraction on federal
lands, actions to eliminate the use of coal entirely, actions to make washing machines and dryers and dishwashers less functional, actions to forbid the purchase
of inexpensive lightbulbs, actions to require massive
31
and costly emissions disclosures from all public companies, actions to ban or restrict heating or cooking
using natural gas, hundreds of billions of dollars of taxpayer subsidies for energy sources much less cost effective than what we now have, and dozens upon
dozens upon dozens of more such costly actions from
throughout the government. All of these actions are entirely based on, and have no justification other than,
the Endangerment Finding.
To estimate the cost to Americans of the Endangerment Finding in the hundreds of billions of dollars
is to understate the matter by at least an order of magnitude, and more likely two to three orders. If forced by
the administrative state to proceed to the end, the cost
will likely be in the tens of trillions of dollars, and
maybe hundreds of trillions. And the American people
will be left far, far poorer, and our energy security and
national security will be put in grave jeopardy.
And meanwhile the Endangerment Finding on its
merits is based on quicksand. The Endangerment
Finding is the most economically significant of all federal regulations, but its supposedly sound scientific basis is easily proven to have been built on a house of
cards. The 2009 Endangerment Finding, as one of its
three lines of evidence, claimed that the Earth had
been facing record setting global average surface temperatures. However, such global average surface temperature data have been, and continue to be totally
fabricated for a very significant portion of the planet
for which there was no surface temperature data
32
whatsoever until relatively recently, all to provide support for global warming claims.
For example, the Southern Hemisphere is 80.9%
ocean and prior to the year 2000 there were no credible
monthly ocean surface data whatsoever for this massive area. This fact alone means that until 2000, the
surface temperature record had no data whatsoever
for over 40% (50%*0.809) of the planet. But it is even
worse than that because for much of the surface temperature record since about 1850, there are virtually
no credible data outside of North America and Europe.
(See App. 105-106).
EPA claimed in the Endangerment Finding that
global temperatures were setting records because of
greenhouse gas emissions.
But proof that substantial parts of the temperature data are fabricated invalidates this claim. Moreover, the invalidation of these global average surface
temperature data has been shown by the Petitioners to
invalidate each of the three lines of evidence in EPA’s
2009 Endangerment Finding, and all subsequent endangerment findings which rest on the 2009 Finding.
(See App. 107-110).
This merits argument was not even rebutted by
the EPA; it was simply ignored. Also not rebutted was
a separate merits argument proving that, in fact, all
greenhouse gases have negative social costs so that
they are all really beneficial gases requiring no climate-motivated regulation at all. (See App. 101-103).
33
Moreover, rising global temperatures, properly
measured, are readily explained by changes in solar,
volcanic and oceanic/atmospheric activity; that is,
changes in natural factors. (See App. 111-118).
Based on the invalidated EPA arguments outlined
above, the Biden Administration has mandated enormous changes in key sectors of the American economy.
Two examples: EPA’s proposed Vehicle Rule requires
67% of new vehicles be battery electric by 2032; and in
the electric power sector, its Power Plant Rule would
require alternate fuels and very costly carbon capture
and sequestration for any coal or gas-fired generation.
Moreover, there are many more examples of major energy and economic policy errors driven by EPA’s 2009
Endangerment Finding.
While the Endangerment Finding is the root of all
this regulation, the root of the Endangerment Finding
is Massachusetts v. EPA. Having set loose a regulatory
wrecking ball on the American economy through the
tiniest mousehole in administrative law – the definition of “air pollutant” in in 42 U.S.C. § 7602(g) – Massachusetts v. EPA should be overturned under the Major
Questions Doctrine.
The D.C. Circuit looked at the regulatory tsunami
driven by the Endangerment Finding and concluded
that the consumers who are the targets of the immense
and needless costs are not entitled to judicial review
because there is no injury in fact. This is an embarrassment to the American judicial system on a level with
34
Dred Scott v. Sanford. This honorable Court has the
opportunity to straighten this matter out.
---------------------------------♦---------------------------------
CONCLUSION
This Court should grant certiorari.
Respectfully submitted, this 17th day of October,
2023.
HARRY W. MACDOUGALD
CALDWELL, CARLSON,
ELLIOTT & DELOACH LLP
Two Ravinia Drive,
Suite 1600
Atlanta, Georgia 30346
(404) 843-1956
hmacdougald@ccedlaw.com
FRANCIS MENTON
Counsel of Record
LAW OFFICE OF
FRANCIS MENTON
85 Broad Street, 18th Floor
New York, New York 10004
(212) 627-1796
fmenton@
manhattancontrarian.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.