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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No. _________

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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.

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