In a loss for the Obama administration, the U.S. Supreme Court on Monday ruled 5-4 against a cap on toxic power plant emissions.
Had the decision been in favor of EPA regulations, it would have forced the industry to install high-tech scrubbers to remove mercury, arsenic and other pollutants, which disproportionately fall to earth in poorer neighborhoods. They enter the body as food from tainted waterways or are simply ingested with each unavoidable breath. They are particularly dangerous for children and unborn babies, but everyone exposed suffers.
The Environmental Protection Agency argued that every year the regulation will prevent about 11,000 premature deaths, 4,700 nonfatal heart attacks, and more than a half million days of work lost to respiratory problems. That translates into somewhere between $37 and $90 billion in annual health benefits nationwide, according to government estimates.
The industry criticized some of the health science, but the many decades of research on the subject was never really in doubt. The regulation has been “20 years in the making,” the EPA wrote when it was proposed in 2011.
The decision is a loss for President Obama's plan to combat climate change without Congressional support, in part because it would have helped determine how many coal plants retire or never open in the near future. His chance of meeting his pledge to lower U.S. greenhouse gasses by 17% by 2020, and as much as 28% by 2025 is now weakened.
Monday's consolidated case, Utility Air Regulatory Group v. EPA et. al., rested on a simple question: Was the EPA required to factor in cost when it decided whether to regulate emissions? No, the agency argued. Under the 1970 Clean Air Act the EPA may regulate emissions where “appropriate and necessary." In that initial calculation only health benefits are relevant, not economics, the government claimed.
Not so, argued a coalition of more than 20 mainly Republican-led states, plus representatives of the coal industry and other energy groups. They sought to portray the EPA as reckless and power-drunk. “EPA’s decision to ignore entirely the costs of its decision has led to one of the most far-reaching and costly rules--if not the most costly rule--ever imposed” under the Clean Air Act, the industry-backed Utility Air Regulatory Group argued in its appeal.
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During oral arguments in March, the EPA’s position seemed imperiled on these grounds. The government acknowledged that compliance with the new regulation would likely cost the industry $9.6 billion a year. “It begins to look a little irrational to say, ‘I’m not going to take it into account at all,’” observed Justice Stephen Breyer, arguing that cost should logically be a factor.
“I would think it’s classic arbitrary and capricious agency action,” Justice Antonin Scalia added, “for an agency to command something that is outrageously expensive and in which the expense vastly exceeds whatever public benefit can be achieved.”
Justice Ruth Bader Ginsburg, however, picked up on the government’s counter argument. She asked lawyers for the states and industry groups for examples of a court decision that required the EPA to consider costs. The plaintiffs admitted that they could find none.
Texas Gov. Greg Abbott, a Republican, praised the ruling in a statement Monday, calling the decision "good news for Texas" and promising to "stand ready to continue our fight against an over-bearing federal government that stands in the way of economic prosperity."
On the other side of the aisle, House Minority Leader Nancy Pelosi slammed the decision for putting "polluters before people."
"The EPA has long taken bold and reasonable steps to limit toxins in our air and water, but this disappointing ruling will delay important protections under the bipartisan Clean Air Act," the California congresswoman said in a statement.
The EPA is expected to issue another coal-fired power plant in August, forcing existing facilities to cut carbon dioxide emissions by as much as 30% by 2030. That rule will almost certainly draw fresh legal challenges, plus additional savagery from Congress and the GOP presidential field.
It's been called "the Super Bowl of climate politics." By comparison Monday's Supreme Court decision was more like a play-off game. The stakes only get higher from here.