Environmental regulations have consistently emerged as a point of controversy in the United States. Following growing criticism of the Environmental Protection Agency's (EPA) emissions regulations for mercury and other toxic pollutants, the Supreme Court announced it will review the ability of the EPA to establish such regulations. The case was narrowed down to a singular question: “whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electrical utilities.”[1]
The EPA's new emissions regulations have turned into a political case, after their adoption in 2012 was seen as a victory for the Obama administration. [2] A challenge to these regulations could potentially hamper the White House's ability to act in environmental cases. Furthermore, this case could be a precursor to future Supreme Court intervention in EPA oversight cases, echoing the message of Justice Scalia, following a June 2012 case, that "the court remained prepared to impose limits on the agency's regulatory authority.”[3]
The basis of the case is the interpretation of the Clean Air Act.[4] The Clean Air Act states, "Emissions standards... shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section... taking into consideration the cost of achieving such emission reduction."[5] Twenty-one states and multiple energy industry companies have filed complaints against the EPA, arguing the agency neglected to consider the cost of regulations in the early stages of the regulatory process, a cost which could be over $9 billion.[6]
In April 2012, the issue was brought before the U.S. Court of Appeals for the District of Columbia in the case, White Stallion Energy Center, LLC v. Environmental Protection Agency; American Academy of Pediatrics. In a 2-1 decision, the right of the EPA to apply the disputed regulations was upheld. Judge Judith W. Rogers, writing for the majority, stated, "For the EPA to focus its 'appropriate and necessary' determination on factors relating to public health hazards, and not industry's objections that emission controls are costly, properly puts the horse before the cart".[7]
In the upcoming hearing, the Supreme Court has agreed to hear three separate cases against the regulations during a one session hearing in March 2015. These cases are Michigan v. Environmental Protection Agency, No. 14-46, Utility Air Regulator Group v. Environmental Protection Agency, No. 14-47; and National Mining Association v. Environmental Protection Agency, No. 14-49.
In order to justify the regulations, the Environmental Protection Agency will need to demonstrate that it appropriately considered the costs of the regulations on the affected utility companies, and, therefore, that the benefits of the regulations outweigh the costs. While not impossible, this task will prove difficult for the EPA. The agency estimates benefits to range from $35 billion to $90 billion (2007)[8]. These estimates, however, contain non-quantifiable components, such as prevention of premature deaths and prevention of lowered IQ rates.[9] Whereas the plaintiffs are able to provide a clear citations to where their losses emerge, the EPA will rely on fewer tangible examples.
[1] Liptak, Adam, and Coral Davenport. "Supreme Court to Hear Challenge to Rules on Mercury From Power Plants." New York Times. http://www.nytimes.com/2014/11/26/us/politics/supreme-court-to-hear-case-on-costs-of-clean-air-act.html?_r=2.
[2] Ibid.
[3] Liptak, Adam. "Supreme Court to Hear Case on Costs of Clean Air Act." Boston Globe via New York Times. http://www.bostonglobe.com/news/nation/2014/11/25/supreme-court-hear-case-costs-clean-air-act/BsaBZkkd8KJKVGqH3cTQAL/story.html.
[4] Liptak, Adam, and Coral Davenport. "Supreme Court to Hear Challenge to Rules on Mercury From Power Plants." New York Times.
[5] Clean Air Act, Section 112(d)1, 42 U.S. Code 7412(d)(1)
[6] Barnes, Robert. "Supreme Court to hear challenge to EPA’s power-plant emissions rule." The Washington Post. http://www.washingtonpost.com/politics/courts_law/supreme-court-to-hear-challenge-to-epa-power-plant-mercury-pollution-rule/2014/11/25/3086fad8-74d9-11e4-a755-e32227229e7b_story.html.
[7] White Stallion Energy Center, LLC v. Environmental Protection Agency; American Academy of Pediatrics, 44 ELR 20088, No. 12-1100, (D.C. Cir., 04/15/2014)
[8] Barnes, Robert. "Supreme Court to hear challenge to EPA’s power-plant emissions rule." The Washington Post.
[9] Ibid.