Concerns In Vermont Regarding Supreme Court Emission Ruling

Jun 30, 2015

The Supreme Court ruled Monday against Environmental Protection Agency rules that limit power plant emissions of mercury and other hazardous air pollutants.  The decision is being panned by many in Vermont who say the court is backing business interests.

The high court ruled 5 to 4 that the EPA had not sufficiently examined the costs to industry when it imposed new regulations to limit emissions of mercury and other hazardous air pollutants from coal- and oil-fired plants.  
Writing for the court, Justice Antonin Scalia said it is not appropriate to impose billions of dollars of economic costs in return for a few dollars in health or environmental benefits.
Vermont Commissioner of Environmental Conservation David Mears calls the decision a disappointing and unnecessary bump in the road for a rule that makes a lot of sense.   “It delays the implementation of these controls.  That’s the problem.  It’s not that it will stop them because there’s no question that when you look at the cost-benefits, that benefits in terms of reductions to environmental impacts and the public health impacts are significant. So EPA will be able to justify this I am confident and the rule will go into effect.”

Mears adds that it’s disconcerting how the court factored cost into its decision.  “It is concerning that the conservative members of the court, which were in a majority on this decision, read the statute in a way that placed costs at a higher priority above the human health impacts of it.  That is of concern. But we’ll see how it plays out in future decisions.”

Conservation Law Foundation Vermont Vice President and Senior Attorney Chris Killian is disappointed. He feels that the justices intervened beyond their scope to legislate from the bench.   “The dissent appropriately points out that EPA had considered costs and made decisions early on that balanced all the factors before moving forward with the rule. Our view is that the majority really ideologically is inclined to protect business interests over the environment and took an activist posture in substituting its hindsight is twenty-twenty view for that of the agency that did the work. Unfortunately that will subject all Americans to more toxic pollution from these emission sources.”

Vermont Law School Professor Patrick Parenteau calls the ruling a temporary setback for the emission rules, pointing out that the matter has been sent back to a federal appeals court for more work.  “The Supreme Court has said that EPA needed to consider the costs of regulating mercury emissions as a first step.  EPA would have preferred to consider costs at a later stage of the process where they’re actually looking at emission standards for individual facilities. But Justice Scalia in his majority opinion said no, no you should be looking at costs before you do anything. So the remand to EPA is to develop a more robust analysis of the cost of controlling mercury emissions as a first step.”

The case will return to lower courts to determine how the EPA will account for costs.