Climate change skeptics argue against federal authority to limit emissions  

WASHINGTON (CN) — Climate change skeptics argued in the D.C. Circuit on Friday that the Environmental Protection Agency lacks the authority to limit greenhouse gas emissions. 

The Concerned Household Electricity Consumers Council seeks a review of the EPA's decision not to reconsider or revise its 2009 finding that elevated concentrations of six well-mixed greenhouse gases in the atmosphere may reasonably be anticipated to endanger the public health and welfare of current and future generations. 

"Evidence of the impact of warming global average temperatures and other associated climatic changes on public health and welfare has only grown stronger in the intervening years," the EPA's brief to the D.C. Circuit states, "as has the scientific basis for attributing these changes to greenhouse gas emissions from human activity."

The agency's determination, commonly called the 2009 endangerment finding, found that the concentration of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride in the atmosphere posed a health threats to humans. 

The Concerned Household Electricity Consumers Council is comprised of five individuals, including retired meteorologist Joseph D'Aleo, attorney Scott Univer and the former president of the Women's National Republican Club, Robin Weaver. 

"With our petition and supporting material, we've demonstrated that the 2009 endangerment finding is based on a house of cards," attorney Harry MacDougald of Caldwell & Watson, representing the plaintiffs, argued Friday before a three-judge panel.

MacDougald told the judges that the injury his clients suffer is from regulations established following the finding that have hiked home energy prices. They argue that the EPA needs Congress's approval and a robust scientific foundation to authorize emissions limits.

"CO2 emissions are ubiquitous to human activity and are irrefutably indispensable to the daily survival of billions of people against the hazards of nature untamed," the group's brief states. "Fossil fuels have contributed more to improving human health and welfare and the material quality of human life than any other substance in human history."

The brief further states that decarbonizing the United States is technically and economically impossible, and that "climate policy is a far greater threat to human health and welfare than human-caused climate change." 

MacDougald argued that regulations predicated by the 2009 finding have constrained the supply of fossil fuels, leading consumers to pay more for energy. 

"Most of the electricity in the United States is generated by fossil fuels," MacDougald said. "The effect is manifested through the entire scope of regulation that ultimately rests on the 2009 endangerment finding."

U.S. Circuit Judge Florence Pan, appointed by President Joe Biden, seemed frustrated with MacDougald for failing to bring direct evidence of his clients' suffering an injury at the hands of the EPA's finding. The attorney again pointed to vague allegations that energy prices rise in areas where emissions of greenhouse gases are limited. 

U.S. Circuit Judge Gregory Katsas, a Donald Trump appointee, agreed with Pan that the plaintiffs have the burden to show standing, especially considering they are not the power utility companies affected by emission limits. 

Justice Department attorney Brian Lynk, representing the EPA, relied on the lack of standing argument for why the court should rule in the government's favor. 

"The petitioners have not shown any concrete and particularized injury, in fact, traceable through the EPA act as they were required to do in their opening," Lynk said. 

U.S. Circuit Judge Karen Henderson, a George H.W. Bush appointee, also sat on the panel. The judges did not indicate when they would issue a ruling.

Lynk and MacDougald did not respond to requests for comment. 

Last year, the U.S. Supreme Court's conservative supermajority found the power to regulate carbon dioxide emissions lies with Congress, not the EPA.

Intervenors on behalf of the EPA in the D.C. Circuit case include the American Lung Association, American Public Health Association and the Clean Air Council.

Alex Bomstein, legal director for the Clean Air Council, said in a phone interview Friday that he disagreed with the notion that climate policy poses a more significant threat to life than climate change.

"The climate catastrophe that we are embarking on now is an existential risk to society as we know it," he said. "The harms have already begun." 

According to NASA, human activities have raised atmospheric carbon dioxide by 50% since the beginning of industrial times in the 1800s. The rise is more significant than what naturally happened at the end of the last Ice Age about 20,000 years ago. 

Bomstein said Americans already feel the effects of a warmer planet through extreme weather events like droughts and floods. According to NASA, the loss of sea ice, melting glaciers and ice sheets, sea level rise and more intense heat waves are some of the current effects of climate change.

Bomstein said the 2009 endangerment finding is crucial for nonprofits like the Clear Air Council that seek to combat the trajectory of climate change. 

"It is an absolute prerequisite for EPA to be able to do anything significant about climate change to have initially that acknowledgment that greenhouse gases are endangering the public," he said. 

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