Amicus Brief Filed In Utility Air Regulatory Group v. EPA

Several weeks ago I was honored to be asked to help write an amicus brief for the Supreme Court in UARG v. EPA on behalf of a group of scientists and economists and in support of the cert petitions of Southeastern Legal Foundation and a group of states led by Texas.  The petitioners ask the Court to vacate an EPA rulemaking in which EPA found that because it had determined that CO2 is a "dangerous pollutant," now it must institute a permitting regime for so-called "stationary sources" that emit CO2, which include things like power plants and factories.  The rulemaking is part of the Obama administration and EPA campaign to restrict and reduce all carbon-based energy and, it seems, to eliminate coal from the economy entirely.  EPA claims to find a basis for its rulemaking in Clean Air Act amendments dating from 1977, although nobody had previously thought that these provisions had anything to do with this subject matter, and even though there have been many unsuccessful attempts in Congress in the intervening time to pass legislation restricting carbon-based fuels.

We filed the brief last night, and it is publicly available today.  It's not up yet online at the Supreme Court or the ABA site, but can be found at ICECAP here.  I'll update this post with a better link when I find one.

Meanwhile, you might enjoy a few quotes.  From the introduction:

Unlike other “pollutants” subject to the CAA, CO2 is not some incidental impurity or imperfection in the processes of civilization, but rather is fundamental to all processes of life and equally fundamental to the large majority of energy generation that drives our and the global economy. The emission of CO2 from stationary sources occurs in the processes by which the large majority of our electricity is generated; in the heating, cooling and lighting of our homes, offices, schools, hospitals and stores; in our use of computers and the internet; in the production and preparation of food; and in nearly everything else we do. Under the guise of a technical statutory interpretation, the EPA now asserts it has discovered a central role for itself to control and dictate all aspects of our lives under an over 30-year-old statutory provision never previously thought remotely to cover this subject matter.

While the merits briefs of the petitioners took on technical arguments of administrative law and statutory construction, our amicus brief also addresses the fake "science" by which EPA has claimed to find that CO2 -- the gas that gives rise to all life -- is a "dangerous pollutant":

The entire hypothesis on which EPA has purported to find that CO2 emissions supposedly “endanger” human health and safety has been falsified by real world evidence.  As the most important example, EPA asserts as its central “line of evidence” for CO2 “endangerment” that CO2 will warm the surface temperature of the earth through a mechanism by which rising CO2 concentrations in the troposphere in the tropics block heat transfer into outer space.  See 74 Fed. Reg. at 66518 (Dec. 15 2009).  If this theory were right, there would necessarily be an observable “hot spot” in the tropical upper troposphere.  But this tropical “hot spot” has been proven not to exist.

And finally, we addressed the most shocking aspect of EPA's carbon-restriction program, which is the intent to impoverish the people, and particularly poor people, by increasing the price and limiting the availability of cheap carbon-based energy:

If EPA succeeds in limiting the availability of hydrocarbon based energy and raising its price, it is not the rich who will be priced out of purchasing the energy they need.  It is the poor.  Cheap carbon-based energy from stationary sources means that relatively low income people in this country can afford, for example, to heat, cool and light their homes, cook meals, use the internet, talk on cell phones, buy products like automobiles made of inexpensive steel and other metals.  If the lowest cost energy available is unwisely restricted, all Americans will suffer greatly, but the poorest the first and the most.

This rulemaking by the EPA is a massive power grab that deserves far more attention and push back than it has gotten so far.  But maybe our brief will mark at least one small step forward in countering the global warming hysteria.

My clients are too numerous to list here (the full list is in the brief) but include the likes of Joe D"Aleo (of the excellent web site),  Craig Idso (who has done excellent work on the benefits of CO2 in the atmosphere and runs the website), Harrison Schmitt (the former astronaut and Senator), George Wolff (former chair of EPA's clean air scientific advisory committee), and economist James Wallace.

So far I have seen links to our brief at,, and  Many thanks for those.  I'm sure there will be more.