Supreme Court Rejects Obama's Drive To Cut Power Plant Emissions / Scalia

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The Supreme Court threw out (http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf) an Environmental Protection Agency regulation limiting mercury and other toxic emissions from power plants on Monday, undermining the Obama administration's drive to cut pollution from electricity generators.

The case looked at the EPA's regulation of mercury and other emissions from power plants under the Clean Air Act, which Republicans have attacked as a "war on coal" and an example of presidential overreach.

The EPA interpreted the law "unreasonably" when it failed to consider the costs of compliance with the new regulations, the court ruled 5-4 in an opinion written by Justice Antonin Scalia.

"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," concluded the majority.

The EPA finalized rules (http://www.epa.gov/mats/powerplants.html) limiting the release of mercury, heavy metals and acid gases from power plants in December 2011. While many newer power plants have technology to curb those hazardous releases, the rules target plants that still do not capture those emissions. The rules affect about 600 U.S. power plants, the majority of which are fueled by coal.

Industry groups challenged the rule, arguing that the EPA failed to take into account the cost of compliance, which they put at $9.6 billion (http://www.wsj.com/articles/supreme-court-appears-divided-on-epa-rules-to-limit-mercury-emissions-1427305800).

The EPA argued (http://www.huffingtonpost.com/2014/11/25/supreme-court-epa-mercury_n_6220428.html) that the health benefits from cutting emissions would at least triple the compliance costs (http://www.cadc.uscourts.gov/internet/opinions.nsf/284AC47088C07D0985257CBB004F0795/%24file/12-1100-1488346.pdf).

The question before the court hinged on the interpretation of a line in the Clean Air Act (https://www.law.cornell.edu/uscode/text/42/7412) stating that the EPA "shall regulate" emissions from electric utilities if the agency finds that "such regulation is appropriate and necessary."

The court assessed (http://www.supremecourt.gov/qp/14-00046qp.pdf) whether the EPA's interpretation of the word "appropriate" had to include the costs of compliance.

"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," wrote Scalia in the majority opinion.

The mercury rule is one of several major regulations from President Barack Obama's EPA limiting emissions from power plants, specifically units that are coal-powered. The agency is finishing rules limiting greenhouse gas emissions from both new and existing power plants as well, with the final rules expected within weeks.

A federal appeals court upheld the regulations (http://www.washingtonpost.com/national/health-science/federal-appeals-court-says-epa-can-force-power-plants-to-cut-mercury-emissions/2014/04/15/a41a0066-c4c7-11e3-b195-dd0c1174052c_story.html) in 2014. The Supreme Court heard oral arguments in March.


http://www.huffingtonpost.com/2015/06/22/supreme-court-mercury-rule_n_7640722.html?ir=Politics&utm_campaign=062915&utm_medium=email&utm_source=Alert-politics&utm_content=FullStory&ncid=newsltushpmg00000003


SCOTUS5 reducing costs (protecting profits) to Corporate-American at the broader EXTERNAL costs to the health of Human-Americans and the environment. BigCorp/VRWC MISSION ACCOMPLISHED by VRWC JINOs

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As usual, the VRWC SCOTUS5 dissents, esp, Scalia are risible, inflammatory, pandering to VRWC/BigCorp.

the left-wing dissents always articulate, reasoned, respectable

Justice Kagan Is Not Happy About The Supreme Court’s Ruling On Mercury Pollution


To Justice Elena Kagan, who wrote the Court’s dissent, that reasoning failed to acknowledge all the other times the EPA took cost into consideration throughout the regulatory process.

As Kagan wrote (http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf):

That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking. I agree with the majority — let there be no doubt about this — that EPA’s power plant regulation would be unreasonable if ‘[t]he Agency gave cost no thought at all.’ … But that is just not what happened here. Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial ‘appropriate and necessary’ finding, EPA knew it would do exactly that — knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters.


When first deciding to regulate mercury pollution from power plants, Kagan noted that the EPA made its decision based on the fact “that power plants’ emissions pose a serious health problem, that solutions to the problem are available, and that the problem will remain unless action is taken.”

Kagan said the EPA didn’t consider costs in the first stage of the regulatory process because it knew that it would have a chance to consider costs later on.

“[T]he Agency, when making its ‘appropriate and necessary’ finding, did not decline to consider costs as part of the regulatory process,” she wrote. “Rather, it declined to consider costs at a single stage of that process, knowing that they would come in later on.”

Later in the dissent, Kagan argued that it would be impossible for an agency to anticipate all the consequences of a particular regulation during the regulation’s very first stages:

Suppose you were in charge of designing a regulatory process. The subject matter — an industry’s emissions of hazardous material — was highly complex, involving multivarious factors demanding years of study. Would you necessarily try to do everything at once? Or might you try to break down this lengthy and complicated process into discrete stages? And might you consider different factors, in different ways, at each of those junctures?

I think you might.


Moreover, Kagan argued, the EPA made a decision to regulate mercury emissions from power plants before it designed those emission standards, making it impossible to calculate potential costs associated with standards that hadn’t even been created yet.

“Simply put,” Kagan wrote, “calculating costs before starting to write a regulation would put the cart before the horse.”

In the majority opinion, Scalia compared the EPA to a potential car owner looking to purchase a Ferrari without thinking about the costs of the car. It was a metaphor that Kagan didn’t love:

The comparison is witty but wholly inapt. To begin with, emissions limits are not a luxury good: They are a safety measure, designed to curtail the significant health and environmental harms caused by power plants spewing hazardous pollutants. And more: EPA knows from past experience and expertise alike that it will have the opportunity to purchase that good in a cost effective way. A better analogy might be to a car owner who decides without first checking prices that it is “appropriate and necessary” to replace her worn-out brake-pads, aware from prior experience that she has ample time to comparison shop and bring that purchase within her budget.


When deciding to regulate mercury pollution from power plants, Kagan contined, the EPA did not ignore the question of cost. Instead, it chose to wait until it had a better idea of what the emission regulations would be to consider the cost that those regulations would incur.

“The majority arrives at a different conclusion only by disregarding most of EPA’s regulatory process,” Kagan wrote. “It insists that EPA must consider costs — when EPA did just that, over and over and over again.”

The majority’s decision, Kagan concluded, ignored the latitude given to the EPA by Congress about how to best account for costs and benefits when designing emissions regulations.

“And the result,” she wrote, “is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.”

http://thinkprogress.org/climate/2015/06/29/3675111/scotus-epa-kagan-dissent/

For the BigCorp/VRWC/SCOTUS5, #ProfitsTrumpHumanLives

[Slutter McGee]

"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,"

Only somebody completely ignorant of any understanding of economics (progressive liberals) could find fault with this statement.

Slutter McGee

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Only somebody completely ignorant of any understanding of economics (progressive liberals) could find fault with this statement. Slutter McGee Boutons' second post did more to speak to your point. The article paraphrased Justice Kagan as saying "the EPA didn’t consider costs in the first stage of the regulatory process because it knew that it would have a chance to consider costs later on." Kagan is later directly quoted stating: "I agree with the majority — let there be no doubt about this — that EPA’s power plant regulation would be unreasonable if ‘[t]he Agency gave cost no thought at all.’ … But that is just not what happened here. Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial ‘appropriate and necessary’ finding, EPA knew it would do exactly that — knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters."

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Only somebody completely ignorant of any understanding of economics (progressive liberals) could find fault with this statement.

Slutter McGee

Only some shit-for-brains BigCorp-fellating rightwingnut would ignore the EXTERNAL costs that BigCoal and BigCoalBurningElectric don't figure, haven't EVER figured, into their pricing.

Taxpayers have to pay for environmental remediation of BigCoal sites when a BigCoal goes bust, and pay for SuperFund-type cleanups of toxic coal ash.

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Big polluters shouldn’t celebrate just yet: SCOTUS’s disappointing decision won’t prevent meaningful reform

The Supreme Court delivered a major blow to the EPA, but not necessarily to air pollution regulations

In a counterstrike against the EPA’s so-called (http://www.salon.com/2015/04/17/expert_demolishes_the_rights_war_on_coal_myth_the_ real_reason_the_industry_is_dying/) “War on Coal,” the Supreme Court Monday blocked the agency’s rule regulating mercury pollution from coal-fired power plants. It’s a decision that, as Justice Elena Kagan wrote in a scathing dissent, ”deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.”

Environmental groups have expressed their dismay –

“Congress decided more than two decades ago that no child should be born with brain damage or other neurological harm, simply because industrial polluters refuse to pay for pollution controls,” Sanjay Narayan, the Sierra Club’s managing attorney on mercury and air toxics, said in a statement. “But today, five justices of the Supreme Court have decided to make an exception for Big Coal — the industry responsible for the majority of mercury, arsenic, and acid gas pollution in the United States.”
– while being careful to point out that it isn’t a outright disaster:

“Given the massive pollution emitted by coal- and oil-fired power plants, and the equally massive public benefits of curtailing that pollution, we expect that EPA will be able to promptly re-instate the rule, and complete the analysis demanded by the five-judge majority,” Narayan added.

Certainly, the decision bodes poorly for the Court’s tolerance of EPA policy: the nitpicky decision, as Kagan wrote, reverse past precedent, which has given the agency leeway as to when, in the regulatory process, it takes cost into consideration. Scalia, who wrote the majority opinion, got away with comparing the EPA’s regulatory process to the hypothetical decision to buy a Ferrari — thereby equating life-saving measures with a luxury item (http://www.newrepublic.com/article/122198/antonin-scalia-compared-lifesaving-epa-regulation-ferrari).

The mercury rule, however, wasn’t the EPA’s only line of attack on the coal industry’s air pollution. The agency’s about to finalize its rule limiting carbon emission from coal-fired power plants — one that’s garnered similar attacks from the industry and coal-dependent states, which see it as a costly attack on the industry. The public health benefits, in this case, are especially significant: not only are they predicted to save thousands of lives each year (http://www.salon.com/2015/05/04/peer_reviewed_non_partisan_academic_study_finds_th at_the_epa_emisisons_rule_will_save_thousands_of_l ives/) by reducing air pollution, they’re also a big step forward in the fight to prevent dangerous climate change.

That one appears to be safe for now. “Nothing in [Monday's] decision would in any way call into question the legal legitimacy of the Clean Power Plan,” Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of NYU Law School, said in a statement.

In fact, argues Mark Drajem at Bloomberg Business (http://www.bloomberg.com/news/articles/2015-06-24/obama-may-win-by-losing-in-quirk-of-supreme-court-epa-review), the ruling could actually end uphelping the EPA to defend its carbon rule. Chalk it up to opponents who have seized on any and all opportunities (https://www.google.com/url?q=http://www.salon.com/2015/03/20/mcconnells_anti_epa_plan_convince_republicans_to_w elcome_big_government_climate_regulation/&sa=U&ei=hXyRVdG8LYGv-QHC_pmQCg&ved=0CAUQFjAA&client=internal-uds-cse&usg=AFQjCNH7IoDaJ2vgwVQolP9_tZOdELo6kQ) to attack the agency (http://thinkprogress.org/climate/2015/06/25/3673867/house-votes-weaken-epa-climate-rule/) — include one which argued that the EPA couldn’t regulate carbon if other power plant pollution was already being regulated under a different section of the Clean Air Act. Here’s Drajem:




Coal producer Peabody Energy Corp., coal-dependent states such as West Virginia, and business groups such as the U.S. Chamber of Commerce already challenged the EPA’s first-ever plan to curb carbon emissions under section 111(d) of the Clean Air Act. Those groups, represented by Harvard University legal scholar Laurence Tribe, had one main argument: The Clean Air Act prohibits regulation of power plants under 111(d) if they were first regulated under section 112.

You guessed it: The mercury rule is under section 112.

“If we are right about this, there is nothing they can do to make this rule lawful,” Tribe told the U.S. Court of Appeals in Washington in April. The 111(d) section was meant as a catch-all for polluting sources not regulated by other sections of the law, and so lawmakers were trying to prevent duplicative rules, critics say.


Nothing they can do, that is, except be forced to start over: a plausible situation would be for the mercury rule to be overturned, the carbon rule instated and then — because there’s nothing preventing this from happening — the mercury rule introduced again. The U.S. Court of Appeals already threw out Tribe’s challenge (http://www.nytimes.com/2015/06/10/us/coal-epa-clean-power-plan.html), but only on the basis of it being too premature.

http://www.salon.com/2015/06/29/big_polluters_shouldnt_celebrate_just_yet_scotuss_ disappointing_decision_wont_prevent_meaningful_ref orm/

400 rivers and streams were tested for methyl mercury, a compound only produced when mercury-bearing coal is burned. EVERY tested water was polluted with methyl mercury. and the fish, etc, etc, all tainted. BigCoal and BigElectric gonna pay? Hell no.

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What Everyone Is Getting Wrong About The Supreme Court’s Mercury Pollution Ruling

What the Supreme Court did do was put the regulation — which limits toxic heavy metal pollution like mercury from coal and oil-fired plants — in jeopardy. In a 5-4 decision (http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf) led by Justice Antonin Scalia, the court said the EPA acted unlawfully when it failed to consider how much the regulation would cost the power industry before deciding to craft the rule.

However, that doesn’t mean the rule is gone. In fact, it’s still in place at this very moment. Right now, power plants are still required to limit their emissions of mercury, arsenic, chromium, and other toxins. A spokesperson for the EPA confirmed this to ThinkProgress.

What the Supreme Court’s ruling does is send the current mercury rule to the D.C. Circuit court for further consideration. The D.C. Circuit could very well invalidate the rule. But it could also uphold it, if the court finds more harm than good would be done by repealing it, or if the agency can offer a reasonable explanation of why costs weren’t included early on in the administrative record.

The D.C. Circuit has often left rules in place under similar circumstances, according to Jim Pew, an attorney at Earthjustice who worked on the case.

“It’s a narrow decision, that’s a really important point,” Pew told ThinkProgress by phone on Monday. “It leaves the rule in place. It doesn’t throw it out. And it leaves EPA with a lot of discretion.”

http://thinkprogress.org/climate/2015/06/29/3675141/no-supreme-court-did-not-invalidate-mercury-rule/

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U.S. appeals court upholds bulk of Obama air pollution rule

A U.S. appeals court on Tuesday mostly upheld a major federal environmental regulation requiring some states to limit pollution that contributes to unhealthy air in neighboring states.

The U.S. Court of appeals for the District of Columbia Circuit rejected several broad challenges to the regulation. But in a partial loss for the government, the court said the U.S. Environmental Protection Agency will have to reconsider the 2014 emissions budgets it set for various states for sulfur dioxide and nitrogen oxide emissions.

The court said the rule could remain intact while the government revises the emissions budgets.

Among the challengers were coal company Peabody Energy Corp and energy company American Electric Power Company Inc.

The case was before the appeals court for a second time after an April 2014 U.S. Supreme Court decision in which the justices, on a 6-2 vote, upheld the regulation.

Writing for the majority, Justice Ruth Bader Ginsburg called the EPA rule a cost-effective way to allocate responsibility for emission reductions among upwind states, and that the EPA need not consider each state's proportionate responsibility for the emissions in question.

The appeals court had previously thrown out the rule in an August 2012 decision, prompting the Obama administration to seek high court review.

The second round of litigation was on separate challenges to the regulation.

http://www.reuters.com/article/2015/07/28/us-usa-court-airpollution-idUSKCN0Q21P020150728?feedType=RSS&feedName=domesticNews