Despite reports to the contrary in the New York Times, the Wall Street Journal, and briefly this publication, the Supreme Court didn’t actually “strike down” the EPA’s regulations of toxic air pollution from power plants on Monday.
What the Supreme Court did do was put the regulation — which limits toxic heavy metal pollution like mercury from coal and oil-fired plants — in jeopardy. In a 5–4 decision led by Justice Antonin Scalia, the court said the EPA acted unlawfully when it failed to consider how much the regulation would cost the power industry before deciding to craft the rule.
However, that doesn’t mean the rule is gone. In fact, it’s still in place at this very moment. Right now, power plants are still required to limit their emissions of mercury, arsenic, chromium, and other toxins. A spokesperson for the EPA confirmed this to ThinkProgress.
What the Supreme Court’s ruling does is send the current mercury rule to the D.C. Circuit court for further consideration. The D.C. Circuit could very well invalidate the rule. But it could also uphold it, if the court finds more harm than good would be done by repealing it, or if the agency can offer a reasonable explanation of why costs weren’t included early on in the administrative record.
The D.C. Circuit has often left rules in place under similar circumstances, according to Jim Pew, an attorney at Earthjustice who worked on the case.
“It’s a narrow decision, that’s a really important point,” Pew told ThinkProgress by phone on Monday. “It leaves the rule in place. It doesn’t throw it out. And it leaves EPA with a lot of discretion.”
Pew said the ruling was actually not as bad as it could have been for environmental advocates. For one, the Supreme Court could have just thrown out the entire thing. It also could have doubted the EPA’s calculation of the benefits of limiting mercury and other toxic pollution, which include the prevention of 11,000 premature deaths every year and annual monetized benefits of between $37 billion and $90 billion.
The Supreme Court could have also said definitively that regulations on mercury emissions from power plants are too expensive, and that the costs outweigh the benefits. The court did not say that — it just said the EPA must consider cost at the very beginning of the regulatory process.
“[Scalia] just thought it was extreme that EPA interpreted that it could ignore costs altogether,” Pew said.
The EPA did not ignore monetary concerns entirely when it crafted the mercury rule. While it’s true that the EPA did not consider costs when it initially decided to issue a regulation on heavy metal emissions, the agency did evaluate how much the rule would cost the power industry later, when it decided what the regulation would actually be.
At its core, Monday’s ruling just says that consideration must come earlier in the process. And while Scalia’s ruling hinted that he thought the rule was too expensive to be justified, the effect of the ruling says nothing of the sort.
“[The ruling] said EPA had to consider costs, but it’s not saying anything about how EPA is supposed to consider costs and whether that particular decision would be right or wrong,” Pew said.
Another reason environmentalists might breathe at least a small sigh of relief is that many of the requirements set by the mercury regulations are already in place. A big chunk of power plants were forced to be in compliance with the rule back in April, meaning many power plants already have their emissions control systems installed. Of course, if the ruling is eventually invalidated, those plants could just turn those systems off if they really wanted to.