Key Climate Finding on Greenhouse Gases Gets New Look on Appeal

Judges on the D.C. Circuit will hear oral arguments Friday on whether the EPA has to reconsider a foundational scientific finding that supports climate change regulations—although attorneys say that the challenge is unlikely to succeed.

At issue in the case is the Environmental Protection Agency’s refusal to reopen its 2009 endangerment finding, which says that certain greenhouse gases endanger the public health and welfare of current and future generations. Petitions to reconsider it were denied under the Obama, Trump, and Biden administrations.

Courts have rejected similar lawsuits for the past 10 years. But the latest challenge may present the opportunity to be heard before the US Supreme Court, as a majority of the justices have proved more open to challenges to agency actions.

The EPA is now up against an appeal to revive a lawsuit from the Concerned Household Electricity Consumer’s Council, which says that the agency’s denial of its petition was arbitrary and capricious. The endangerment finding is based on faulty science and little evidence, and constitutes government overreach, the group said.

A win for the association wouldn’t mean that the endangerment finding is at risk, but the court could order the EPA to take another look at the document—though many legal scholars agree that the move would be unlikely.

“That would be a colossal waste of everyone’s time given that the science is as rock solid as a diamond,” Michael Gerrard, a law professor at Columbia, told Bloomberg Law. “No court in the world has cast doubt on the underlying, basic science of human-caused climate change. It’s difficult to imagine they would succeed.”

Past, Present Challenges

More than 100 lawsuits have challenged the endangerment finding or other matters pursuant to it. The US District Court for the District of Columbia rejected the challenges in 2012, saying that there was “an ocean of evidence” that greenhouse gases cause dangerous climate change.

“The scientific studies since then constitute three oceans of evidence,” Gerrard said.

The US Supreme Court has also rebuffed several efforts to take another look at the endangerment finding, which has been the foundational science behind emissions standards for motor vehicles, fossil-fuel-fired power plants, and the oil and gas industry.

The group claimed in its petition that climate policy is a greater threat to human health and welfare than climate change, citing increases in energy costs and fertilizer prices, economic devastation, and food shortages. They say that the EPA relied on a host of faulty and unreliable models which overshadow new research that finds warming in this century will be modest.

“We are opposed to consensus opinion,” Greg Wrightstone, executive director of the CO2 Coalition, said. “Consensus is not science. They are trying to silence any science or facts that go against the consensus, but there are a lot of science and facts that dispute this claim of catastrophic warming.”

The CO2 Coalition filed an amicus brief on behalf of Concerned Household Electricity Consumer’s Council. Attorneys for the council declined to comment.

The EPA said that the group’s alleged injuries are speculative, and even if it did have standing, scientific evidence continues to support the 2009 finding.

“Saying this case is a ‘long shot’ would be generous,” Sean Donahue, an attorney representing intervening Environmental Defense Fund, told Bloomberg Law. “They are pushing against a huge and growing body of evidence and they are among the few folks who don’t believe it.”

Looking to SCOTUS?

Karen Sokol, a law professor at Loyola University New Orleans College of Law, said that the group is likely bringing the challenge now because the current Supreme Court majority has made it clear that its doors are open to challenges to agency actions.

In June, the Supreme Court ruled in West Virginia v. EPA, that the agency didn’t have authority under the Clean Air Act to regulate on a broad, sectorwide basis. The ruling pointed to the major questions doctrine, which presumes that Congress intends to make major policy decisions itself instead of leaving the decisions to agencies.

“West Virginia v. EPA has hobbled the agency’s ability to proceed in the same way they have in the past,” Sokol said. “It arrogates a tremendous amount of power to the court to determine a major policy question.”

If SCOTUS were to grant review of the group’s challenge, it could use the major questions doctrine to find that the court defined air pollutants too broadly under the Clean Air Act in Massachusetts v. EPA —and rule that the agency doesn’t have authority under the CAA to regulate it.

“The majority has demonstrated it doesn’t have a lot of respect for precedent or integrity of reasoning,” Sokol said. “There’s been rapid development of the major policy questions doctrine. I think this petition has been filed in the hopes that the Supreme Court will take it further than it already has.”

The case is Concerned Household Elec. Consumer’s Council v. EPA, D.C. Cir., No. 22-01139, 4/14/23.