EPA Loses a Battle with Court Ruling, but Not the War

The Supreme Court’s ruling that invalidates the U.S. Environmental Protection Agency’s regulations on emissions of mercury and other pollutants from power plants, released on Monday, appears at first glance to be a serious blow to the Obama administration’s efforts to reduce the environmental effects of electricity generation.

“The decision effectively puts the EPA on notice: reckless rulemaking that ignores the cost to consumers is unreasonable and won’t be tolerated,” said National Mining Association president Hal Quinn in a statement. But a closer examination reveals that it might not have the effects that Quinn and other supporters expect. 

In an opinion written by Justice Antonin Scalia, the court held that the EPA failed to consider the costs to industry before deciding to craft the rule, which limits releases of mercury, arsenic, chromium, and other poisons from power plants. The EPA has been trying to implement such a rule for more than two decades.

“EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary,” Scalia wrote.

In fact, the EPA did a cost-benefit analysis, finding that while the limits would cost the power sector $9.6 billion a year, they would provide between $37 billion and $90 billion a year in public health and economic benefits, not to mention avoiding 11,000 premature deaths each year. That calculation, though, was part of the rulemaking process; the court found that the cost of compliance should have been considered before the EPA even decided whether such a rule would be appropriate and necessary.

In other words, the court didn’t say the EPA lacks the authority to regulate toxic emissions from power plants; it said the agency didn’t factor in costs before deciding whether to do so. That opens the door for the agency to recraft the rule in order to comply with the court’s demands. What’s more, since the rule was released in 2012, many utilities have already taken steps to reduce pollution from power plants.

“This rule was issued more than three years ago, investments have been made, and most plants are already well on their way to compliance,” EPA spokeswoman Melissa Harrison said in a statement.

As for carbon emissions, Monday’s ruling concerns a provision of the Clean Air Act that is entirely separate from the one that underlies the Clean Power Plan to limit greenhouse gas pollution. And the Supreme Court has upheld the EPA’s authority to regulate climate pollution under the Clean Air Act in three previous decisions: Massachusetts v. EPA, AEP v. Connecticut, and last year’s UARG v. EPA.

In fact, some analysts believe that Monday’s ruling actually undermines separate challenges to the Clean Power Plan. Led by Harvard legal scholar Laurence Tribe, opponents of the plan have argued that, since the Clean Air Act already gives the EPA the authority to regulate certain forms of air pollution, further regulation on greenhouse gases is duplicative—and thus invalid. With the EPA’s regulation on mercury and other toxins in place, the Clean Power Plan is invalid, this argument goes; thus if that rule gets struck down, that argument loses force.

That’s a narrow, legalistic basis on which to rest the struggle to reduce U.S. carbon emissions heading into the Paris climate talks later this year. But for now, that’s the arena in which the Supreme Court has decreed the struggle will take place.