By Steve Fiscor

The late June decision by the Supreme Court of the U.S. (SCOTUS) revealed just how reckless the Environmental Protection Agency (EPA) has become. In Michigan v. EPA (See This Month in Coal, p. 28), several states and industry groups, including the National Mining Association, challenged the EPA’s mercury rule, which would have forced most of the coal-fired power plants to close as part of the Obama administration’s Climate Action Plan.

What one should remember is that this was a SCOTUS that made several landmark decisions; it bent over backward to support the Affordable Care Act (Obamacare) and it ruled in favor of gay marriage, but the regulatory overreach by the Obama administration and the EPA was too much even for this court.

U.S. Supreme Court Justice Anton Scalia rarely minces words and he remained true to form. Delivering the opinion of the court, he explained that the Clean Air Act directs the EPA to regulate emissions from power plants if the agency finds regulation “appropriate and necessary.” The court needed to decide whether it was reasonable for the EPA to refuse to consider cost when making this finding. The EPA had determined it would cost the industry approximately $9.6 billion to comply and the benefits would amount to $4 to $6 million. “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Scalia said. “There are undoubtedly settings in which the phrase ‘appropriate and necessary’ does not encompass cost. But, this is not one of them.”

While this ruling is a victory for the coal business and the states and ratepayers that rely on low-cost energy from coal, the damage has been done. The EPA spokeswoman’s response pointed out so much. It’s no secret that the EPA is acting on behalf of environmental activists, whose agenda is based more on politically correct perceptions and preconceived notions rather than science and actual data. The agency’s rule-making process bypasses Congress—the branch that is supposed to enact laws.

Justice Clarence Thomas took notice. In his concurring opinion, he questioned whether the court’s 1984 decision in Chevron v. Natural Resources Defense Council is still constitutional in light of this ruling. Often referred to as “Chevron deference,” it requires courts to defer to interpretations of statutes made by the agencies charged with enforcing them, unless the interpretations are unreasonable. “[The EPA’s] request for deference raises serious questions about the constitutionality of our broader practice of deferring to agency interpretations of federal statutes,” Justice Thomas said.

“The EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here,” Justice Thomas said. “We seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency ‘interpretations’ of federal statutes.”

The EPA has probably won the climate battle by overstepping its bounds, but it has also drawn the court’s attention. The Congress has failed to reign in an agency run amuck. The mining industry will face the EPA in several upcoming lawsuits related to water, bonding, permitting and other areas. In addition to science and facts, it now has SCOTUS on its side when it comes to costs.

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Steve Fiscor, E&MJ Editor-in-Chief