This summer, the U.S. Supreme Court heard a critical case involving mercury and other toxic air pollution from coal-fired power plants.
At stake were up to 11,000 lives a year, and a very dangerous precedent that industry profits are more important than people. [Update: The Supreme Court ruled on June 29. And on December 15, the U.S. Court of Appeals for the D.C. Circuit rejected the bid by the coal mining industry and its allies to throw out the standards.]
The coal industry’s challenge essentially asks the Supreme Court to abandon Chevron deference, an important component of our Constitutional separation of powers.
Named for a landmark 1984 Supreme Court decision, Chevron deference means that when Congress uses broad and ambiguous language in a law granting authority to an agency, it is up to the agency, not the courts, to exercise “whatever degree of discretion the ambiguity allows.”1 In other words, “the responsibilities for assessing the wisdom of policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches.”2
The Clean Air Act provision at issue in this case is broad and ambiguous. It directs EPA to do a study of public health hazards from power plants and directs the agency to set limits on power plants’ toxic air pollution if the Administrator finds it “appropriate and necessary.”3 EPA studied the issue, determined that toxic pollution from power plants is a serious public health and environmental hazard, and decided to start the regulatory process. In response, the coal industry and its allies are asking the Supreme Court to declare that EPA was wrong about what is “appropriate.”
If the Supreme Court substitutes its judgment for EPA’s here, it will raise serious doubts about the Court’s commitment to Chevron deference and the separation of powers.
This case raises the issue of whether the Supreme Court should impose catastrophic consequences on the country to further the coal industry’s doctrinal and political views about the value of government regulation.
As Congress intended, EPA did not consider cost in making its threshold determination that controlling power plants’ toxic pollution is “appropriate and necessary.” Later in the regulatory process, however, EPA did review of the costs and benefits of its action. EPA found that the same measures power plants take to reduce mercury, arsenic and other hazardous air pollutants will simultaneously improve overall air quality. This improvement in air quality will undisputedly save between 4,200 and 11,000 lives every year, by reducing the incidence of heart attack, stroke, asthma, and other deadly illnesses.
If the Supreme Court decides it was not “appropriate” for EPA to regulate power plants, thousands of people will continue to die unnecessary deaths every year for years to come.
This is not the first time the Supreme Court has considered whether EPA should balance health and the environment against costs to industry.
In a 2001 case under another Clean Air Act provision, the Court held that because balancing health against costs could “cancel” the intended focus on health, EPA must not consider costs unless the Act clearly directs it to do so.4 Eight years later, in a decision dealing with an analogous provision of the Clean Water Act, the Court held that EPA was permitted, but not required, to consider costs.5 Now the coal industry is trying to persuade the Court that ambiguous language in the Clean Air Act means EPA is required to balance health and the environment against costs.
If the Court accepts their argument, it will have done a complete 180-degree turn on this issue in just 15 years.
1 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (quoting Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741 (1996)).
2 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (internal quotation marks omitted).
3 42 U.S.C. § 7412(n)(1)(A).
4 Whitman v. American Trucking, 531 U.S. 457, 464-69 (2001).
5 Entergy Corp. v. Riverkeeper, 556 U.S. 208, 219-20, 222-23 (2009).