States prod Supreme Court to kill EPA pollution rule

The Supreme Court took up the states’ case against the mercury and air pollution standards last year, ruling in their favor on a limited sliver of the rule. The court said the Environmental Protection Agency did not have the discretion to overlook the high cost of complying with its regulations, and directed it to do an assessment. It costs well over $9 billion a year to meet the rule’s standards, and the rule has been blamed for the closure of a significant chunk of the nation’s older coal plants.

But the high court did not strike it down. The states asked Chief Justice John Roberts last month if the high court would halt the rule, while the EPA prepares a cost estimate due next month. Roberts denied the request earlier this month, which led to Friday’s latest request by the states to kill the rule altogether.

The states are persistent, arguing that Congress never authorized the EPA to implement the costly rules.

The states ask the court in their legal brief, “What happens when a federal agency promulgates a rule without first receiving authority from Congress?”

“The answer should be clear: agency action, taken without any authority, cannot be left in place to have the effect of binding law,” the states said. “Instead, the agency itself, to say nothing of the reviewing courts, should recognize that the rule must be vacated.”

Justice Anthony Scalia was one of the deciding voices in last year’s 5-4 decision on EPA’s cost assessment. But given his unexpected death last month, it is uncertain whether the states would succeed in receiving a favorable ruling from the court.

President Obama’s pick to replace Scalia, Judge Merrick Garland, would likely defer to the EPA if confirmed as a justice. Garland, who is chief judge for the D.C. Circuit Court of Appeals, denied Michigan’s request to vacate the mercury and pollution standards last year.