Supreme Court ( 5-4) Strikes EPA Power Plant Regs

Michigan v. EPA - Supreme Court Strikes Green House Gas Regs as Irrational

Judicial modesty is a virtue embraced principally in dissent, it seems.  Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently.  The EPA is an agency with substantial scientific expertise.  But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.

In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments  - EPA out of control, etc.  The four dissenters, speaking through Justice Elena Kagan, declare:

Despite that exhaustive consideration of costs, the Court strikes down EPA’s rule on the ground that the Agency “unreasonably . . . deemed cost irrelevant.”  On the majority’s theory, the rule is invalid because EPA did not explicitly analyze costs at the very first stage of the regulatory process, when making its “appropriate and necessary” finding. And that is so even though EPA later took costs into account again and again and . . . so on. The majority thinks entirely immaterial, and so entirely ignores, all the subsequent times and ways EPA considered costs in deciding what any regulation would look like. 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.