Co-Authored by Norman B. Berger
If a new environmental regulation requiring power plants to reduce toxic emissions would prevent 11,000 premature deaths every year; prevent many thousands more illnesses every year; and produce benefits that outweigh the costs by as much as $80 billion every year, would you say that’s enough reason to have the regulation?
Of course you would. But a majority of the US Supreme Court recently said that all of that wasn’t enough. Or, more precisely, that it didn’t matter. And so it declared invalid the life-saving regulation. The Court’s decision is just the latest sad example of how this country’s institutions will protect the “right” of powerful business interests to pollute our air and water, even though their pollution is badly injuring—and even shortening the lives of—American citizens. (And this is to say nothing about the power plants’ role in greenhouse gas emissions which are choking our planet and threatening to permanently displace millions this century).
We worry a lot about the rights of polluters to not have to bear the cost of polluting less, but not nearly enough about the rights of our citizens to not have bear the devastating costs of the pollution.
In that case, the record showed that, since the late 1990’s, the US EPA has studied the emissions—predominantly mercury—from coal-burning power plants, and ways to significantly reduce them. Beginning in 1997, EPA’s Mercury Report to Congress found coal-burning power plants to be the “largest [non-natural] source of mercury emissions” and found mercury to be quite dangerous to humans.2 For example, EPA determined that children of mothers exposed to high doses of mercury during pregnancy “‘have exhibited a variety of developmental neurological abnormalities,’ including delayed walking and talking, altered muscles, and cerebral palsy.”3
Then, at the end of this 10-year study period:
EPA conducted a formal cost-benefit study which found that the quantifiable benefits of its regulation would exceed the costs up to nine times over—by as much as $80 billion each year. Those benefits include as many as 11,000 fewer premature deaths annually, along with a far greater number of avoided illnesses.5
But none of it mattered. The Supreme Court, in a 5-4 decision, ruled that this was all irrelevant because EPA had not considered, at the very first stage of the process, how much it would cost for the power plants to comply with the regulation. Writing for the majority, Justice Scalia said that EPA “must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is “appropriate and necessary”.6 (emphasis added) Therefore, any later consideration by EPA of compliance cost—even if it considered such cost many, many times over a decade, which EPA did—and any determination that the lives and health of many citizens would be spared by the regulation, simply do not matter. According to Justice Scalia and the majority, EPA did not even have the power to be looking into those things, since it did not take compliance cost into consideration on day one.
The Supreme Court majority is wrong, and plainly so. The legal requirement that EPA first find regulation to be “appropriate and necessary” before it begins the regulatory process does not say that “compliance costs” must be part of the “appropriate and necessary” determination. It would have been easy enough for Congress to have said that, but it didn’t. EPA’s conclusion at the start of the 10+ year-long regulatory process—i.e., that the regulation of mercury emissions will save lives and that it is technologically feasible to save them—is more than enough to empower EPA to take the next step. And that step is what took 10 years: figuring out what the regulatory options are for saving lives, and what their various costs and benefits are. If, during that portion of its work, EPA determines that the costs of the regulation outweigh its benefits, then there will be no regulation.
EPA’s finding that regulation of coal-burning power plants is “appropriate and necessary” does not mean that EPA has already settled on a specific regulation, and is telling the power plants that they just have to live with it. The “appropriate and necessary” finding is the beginning of the process, not the end. It simply means that EPA can get started on the laborious process of figuring out what regulation will be most cost-effective, which is what happened here.
The majority is also wrong because it forces EPA to do the impossible, i.e., to determine the cost of regulating before it even knows what the specific regulation will be. Will the final regulation reduce emissions by 20%, or 90%? Will the final regulation reduce emissions for all power plants, just the biggest, or just the worst polluters? How can EPA “consider the cost” of regulating mercury emissions before it even knows how the final regulation will address these questions? To say, as the Scalia majority does, that EPA has no power to consider specific regulations without first identifying their compliance cost—while the majority well knows that EPA cannot in any meaningful way identify compliance cost without know what the specific regulation will be—puts EPA in a Catch-22 that renders it impotent.
And maybe that is precisely what the pro-business majority intended.
But the worst and saddest part is what those 5 justices were really doing when they said that EPA’s consideration of compliance cost dozens of times over those 10+ years is not enough, since EPA didn’t consider them on day one. The majority was declaring that the fact—and it is a fact—that mercury and other toxic emissions from power plants are killing and injuring tens of thousands of Americans every year is not a significant enough “cost” to justify trying to stop this horrible danger.
To these justices, it seems, the business cost to power plants of regulating their lethal polluting trumps the cost to all of those whose lives are jeopardized because there is no regulation.