Yesterday, the US Supreme Court declared that the Environmental Protection Agency had followed an unlawful process when determining that it was appropriate to regulate mercury emissions from power plants. The court’s decision will put the rules on hold while the process is restarted. But the work the EPA did while formulating the regulations the first time around mean that revisiting them will be a much quicker process.
The case hinges on a revision to the Clean Air Act passed in 1990, which mandates that the EPA determine whether it was “appropriate and necessary” to regulate mercury emissions from power plants. The EPA made such a determination, and proceeded to formulate emissions rules. Mining and energy interest groups, along with several states, sued.
The issue before the court was whether the “appropriate and necessary” determination should include an economic analysis. Most of the provisions of the Clean Air Act specifically call for this; the one relating to mercury does not, so the EPA performed the economic analysis later in the rule making process. Scalia, Roberts, Kennedy, Thomas, And Alito determined that this was an invalid approach. In their opinion, it’s impossible to determine whether something is “appropriate” without considering its economic costs.
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