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Scalia Strikes Again: Michigan vs EPA


The Supreme Court recently, by a 5-4 majority headed by A.J. Scalia, struck down an EPA regulation that would have reduced mercury emissions from coal-fired electric power plants significantly on the excuse that the EPA ignored cost considerations when making the rule, supposedly costing the industry 9.6 billion dollars while “quantifiable benefits” were supposedly only $4-6 million a year.

Justice Kagan, in her dissent, however, stated that the “measurable benefits” would be “up to” $80 billion a year, and at least $30 billion.  In addition, she described the multiple stages in the EPA rule-making process in which cost-benefit considerations were explicitly considered.  The only stage at which cost-benefit considerations were rejected was at the initial stage: deciding whether to regulate mercury emissions at all.  When the levels of regulation were considered, the EPA made it clear that, if costs exceeded benefits, the coal plants would not be expected to spend money on mitigating mercury emissions.

So what is the dramatic difference between “quantifiable benefits” and “measurable benefits”??  There are the 4,500 premature deaths a year and the half a million days of work lost; perhaps those are not “quantifiable”?  It seems that the benefits of limiting mercury emissions are not limited to mercury reduction: particulate and sulfur emissions are also reduced, resulting in dramatically greater benefits.  The majority of the Court refused to consider those “ancillary” benefits, because they are achieved in the process of reducing mercury, which is the only pollutant mentioned in the initial regulation.  That is the difference between “quantifiable” and “measurable”, if you can believe it.   Thus, you don’t get any credit for reducing other pollutants if your first impulse was to reduce just one.

It seems that the Court is angry at the EPA for being too effective: the antipollution regulations, which have to be bad in the Court majority’s eyes, have yielded extra unexpected benefits that can’t be to the credit of the regulations because they were unintentional.

The majority, with Justice Thomas submitting a concurring opinion, seems to think that it is reining in a federal agency that is running wild.  In reality, it is finding an excuse to deal a setback to an agency that has been doing its job, albeit extremely slowly.  This is typical of conservative thought.  They have made a conclusion before reviewing the evidence; afterwards, they have gone through the documents looking for a way to excuse their conclusion.  See the texts of the decision, handed down June 29, 2015, at

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