The June 29 U.S. Supreme Court decision in the case of Michigan et al. V. Environmental Protection Agency et al. restores some common sense to the Environmental Protection Agency’s (EPA) extreme practices.
The Clean Air Act directs the Environmental Protection Agency to regulate emissions of hazardous air pollutants from certain stationary sources (such as refineries and factories). The Agency may regulate power plants under this program only if it concludes that “regulation is appropriate and necessary” after studying hazards to public health posed by power-plant emissions.
In response to protests over its promulgating an extremely costly regulation designed to control the emission of mercury and other pollutants, the EPA found power-plant regulation “appropriate” because the plants’ emissions pose risks to public health and the environment and because controls capable of reducing these emissions were available. It found regulation “necessary” because the imposition of other Clean Air Act requirements did not eliminate those risks. The Agency refused to consider cost when making its decision. It estimated, however, that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year.
The U.S. Supreme Court found that the EPA interpreted the hazardous air pollution statute unreasonably when it deemed cost irrelevant to the decision to regulate power plants.
The 5-4 majority opinion (written by Justice Anton Scalia, and joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito) of the Court ruled that the “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants. ‘Appropriate and necessary’ is a capacious phrase. Read naturally against the backdrop of established administrative law, this phrase plainly encompasses cost. It is not rational, never mind “appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
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The Court noted that “the possibility of considering cost at a later stage, when deciding how much to regulate power plants, does not establish its irrelevance at [an earlier] stage. And although the Clean Air Act makes cost irrelevant to the initial decision to regulate sources other than power plants, the whole point of having a separate provision for power plants was to treat power plants differently. EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”
Twenty-one states had challenged the EPA’s action.
The decision may just be the start of the EPA’s troubles. Accusations of extremist and intrusive policies that run roughshod over individual and business rights have gained traction lately after revelations from Fox News that a “prominent left-wing group helped formulate Environmental Protection Agency talking points designed to sell a controversial regulatory scheme to skeptical journalists, internal emails show.”
Last September, several members of Congress wrote to the EPA requesting information about allegations that the agency was “colluding” with an extremist organization, the National Resources Defense Council, to engage in policy making outside of the normal process of government.