Justices split: should EPA consider costs when making new rules?

power linesThe Associated Press is reporting that the U.S. Supreme Court heard arguments Wednesday in a landmark case that challenges whether the EPAunreasonably refused to consider the costs of new pollution rules” that have already forced some power plants to close, drove up electricity prices, and “threaten grid reliability.”

Twenty-one states and industry groups who are challenging the EPA said in their briefs that the EPA was wrong to not consider the costs before instituting new regulations. After the D.C. Court of Appeals ruled last April that the EPA could refuse to assess the costs of its rules, the Supreme Court agreed to hear the case. The two groups are “adamant that EPA’s interpretation of the law is wrong, and asked the Supreme Court” to settle the matter.

The EPA said that coal- and oil-fired power plants are responsible for half of the nation’s output of atmospheric mercury, as well as arsenic and carbon dioxide emissions, and that they pose a health hazard. Four of the nine Supreme Court justices were uncertain that the EPA could issue regulations aimed at reducing ‘air pollutants’ without taking costs into consideration.

The swing vote on the Court, Justice Anthony Kennedy, also asked relevant questions over what authority the Clean Air Act gives the EPA when costs aren’t taken into consideration. Kennedy said the “law appeared to give EPA the leeway to regulate pollutants based only on their harm. But, ominously for the government, he later said that once a decision to regulate is made without consideration of cost,”‘at that point the game is over.'”

At issue is the vague wording of the Clean Air Act, that has been modified since its inception in the 1970s, which “directs the EPA to regulate if doing so is ‘appropriate and necessary,’ but is ‘silent’ on whether the finding permits it to consider cost, according to an official court summary.” Kennedy indicated the word “appropriate” under the law “is a capacious term,” with room for interpretation on both sides of the issue.

With a vote this close, the new EPA regulations have a 50 percent chance of finally being “vanquished,” and critics warn that without the Court reigning in the EPA, costs to industry and consumers will continue to rise. The Obama administration, which is circumventing the Republican-controlled Congress, has been using various federal agencies to further its political agenda rather than go through the legislative process.

A notice posted by the court said the justices were tasked with answering the question: “Did EPA unreasonably refuse to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities (power plants)?”

The EPA has determined that installing equipment and filters that remove mercury and other pollutants before they enter the atmosphere is a whopping $9.6 billion per year. Over 600 power plants, located mainly in the South and Midwest, would be effected by the new regulations, with the added costs being passed on to consumers.

Justices Sonia Sotomayor and Elena Kagan asked pointed questions that the Clean Air Act did not require the EPA to consider costs. Sotomayor said the EPA is only tasked with analyzing health impacts, and that it didn’t have to “study the costs of implementing its regulation, under the law.”

“The administration said it properly took the benefits” of a cleaner environment and the reduction of respiratory ailments into account when making these rules, but critics have argued that they are not relevant to this case. Chief Justice John Roberts said “including those secondary benefits is an ‘end run’ around more stringent procedures the EPA would have to follow to try to reduce emissions of particulate matter.”


Comments (2)

  • Avatar

    Frederick Colbourne


    Over on ScotusBlog.com I read this:

    “For all of the difficulty that those two lawyers — Michigan Solicitor General Aaron D. Lindstrom and industry lawyer F. William Brownell — had with Justices Kagan and Sotomayor in particular, they got hefty support from Justice Scalia, who voiced industry’s key point that the cost of compliance far outran any monetary value of benefits to health or the environment.”

    Justice Scalia is not alone in taking a hard line on costs. Other justices will join with him for the very good reason that he recognizes that the words “health and welfare” as they appear in the Act means NET health and welfare. A middle-class family that has to pay more for electricity has less to pay for rent and food and less to save for a health crisis or for education.

    This oral questioning made me worry though. How could any of the justices believe that Congress intended to delegate to the EPA the power to regulate the energy supply of the US without regard to the cost?

    Do these justices know anything at all about economics?


  • Avatar



    Wording like “appropriate and necessary “
    according to who ? That sounds a lot like the EPA has the say and if it is contentious they check in with their boss who is apparently a guy named Obama the lone ranger .
    However considering the far reaching effects of imposing $Billions of dollars in costs to people it seems appropriate that Congress would have the right to consider the broader public interest .
    That way the EPA is not charged with the task of putting a theoretic cost to human health and lives .

    It makes no sense that the decision rest with one person ,the President .

    Perhaps that is why the Clean Air Act is so vague in the first place .

    If Congress can change the wording in the Clean Energy Act then they have the authority to interpret and weigh what is
    appropriate and necessary not the EPA .

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