The Briefing Begins In CHECC v. EPA

Manhattan Contrarian by Francis Menton |

In a post last week, I gave notice that battle was about to be joined with the EPA over what it claims to be the “science” behind global warming alarm. The case is called the Concerned Household Electricity Consumers Council (CHECC) v. EPA, now pending in the DC Circuit Court of Appeals. CHECC challenges EPA’s 2009 Finding that CO2 and other greenhouse gases constitute a “danger” to human health and welfare. At the outset of the Trump administration, CHECC filed a Petition for reconsideration and rescission of the Endangerment Finding. That Petition was finally denied by EPA on April 20, 2022, more than a year into the Biden administration, and the appeal followed. I am one of the attorneys for CHECC.

The opening Brief on behalf of CHECC was filed on October 14, and a week later on October 21 an amicus curiae brief was filed in support of CHECC by the CO2 Coalition, together with Professors William Happer of Princeton and Richard Lindzen of MIT. I was going to start off with a review of the CHECC brief, which I helped to prepare, but as luck would have it our CHECC brief got “bounced” by the clerks at the DC Circuit. For those of you who have never dealt with court clerks, there is a great resemblance to the DMV, or perhaps to the old Soviet bureaucracy. The alleged ground for bouncing our brief was that we had used too many acronyms — things like EPA, IPCC, GHG (greenhouse gases), GAST (global average surface temperature), and so forth. Our use of such acronyms was somehow deemed excessive, so we need to go back and make some very minor modifications before there is a completely final version of the brief. Rather than confuse things by referring to a brief that will shortly change in minor ways, I’ll start today by covering some of the highlights of the CO2 Coalition amicus brief.

First, we are extremely honored to have such distinguished and serious scientists supporting our position. For those who haven’t heard of them, Professors Happer and Lindzen are, respectively, the senior atmospheric physicists on the faculties of Princeton and MIT. Their lists of titles, awards and honors are almost endless, and occupy several pages in the brief. The CO2 Coalition is a large group of top scientists and people in related fields with specialties related in one way or another to the global warming subject matter, and whose views lean toward skepticism. Happer is the Chair of the CO2 Coalition, and Lindzen is a member.

You might think that tackling the “science” of CO2-driven atmospheric warming is just too heavy a lift to get a court interested, and maybe that’s where this court will end up. But this brief shows why the subject is not really that complicated. At page 18 the brief quotes the famous aphorism of physicist Richard Feynman, “If it disagrees with experiment, it’s wrong.” In other words, it’s just a question of finding a few, or even one, example where the theory relied on by EPA is contradicted by the data.

The brief minces no words in distinguishing real science from the government-dictated orthodoxy and consensus on which EPA relies. This is from the summary of argument:

Scientific knowledge is determined by the scientific method, through which theoretical predictions are validated or rejected by observations. If the theoretical predictions do not work, the theory is rejected. That’s real science. Scientific knowledge is not determined by government-controlled opinions, consensus, peer review, or theoretical models that do not work. Those are false science. This brief applies the scientific method to the Endangerment Findings and its supporting Technical Support Document and demonstrates both are scientifically corrupted and thus must be rescinded .. . . .

In subsequent sections the brief compares IPCC model predictions of catastrophic warming — specifically relied upon by EPA in the Endangerment Finding’s Technical Support Document — to temperature observations thus far in the real world. They include this famous chart from Congressional testimony given by John Christy back in 2017:

From the brief, commenting on the divergence of theory from observations:

We now know the IPCC theoretical climate models, an early version of which was used in the Endangerment Findings and Technical Support Document, fail the basic test of the scientific method and, thus, should not be used. Without a valid theoretical model, the IPCC’s future climate projections and scenarios have no scientific validity. For this reason alone, the Findings and Technical Support Document should be rescinded.

And the brief does not just end after demonstrating that EPA’s theoretical projections of climate catastrophe have been scientifically invalidated. Pages 30-32 are then devoted to a presentation of new work by Professor Happer and co-author William van Wijngaarden demonstrating why the capacity of CO2 and other greenhouse gases to warm the atmosphere is largely saturated at current concentrations, such that further increases in concentrations only have the potential to cause insignificant further warming. The Happer/van Wijngaarden paper is definitely technical and challenging to understand. However, in the context of this dispute, it is just an additional argument not essential to victory. The key point is that EPA’s “science” has been invalidated by evidence.

By all means read the entire brief if you have the time and inclination. We are very grateful to the CO2 Coalition and Professors Happer and Lindzen for their support.