President Obama’s grand plan to regulate coal out of existence started to come apart Monday. His Environmental Protection Agency had announced in 2011 that it would regulate oil and coal power plants under an obscure Clean Air Act program that has nothing to do with carbon, smog or common air pollution, but with poisons in tiny quantities, such as mercury and arsenic.
The decision to apply this National Emissions Standards for Hazardous Air Pollutants Program to power plants aroused much opposition, but what landed the EPA in court was its explicit refusal to bother with any sort of cost-benefit analysis in making its decision. “[C]osts should not be considered,” it declared with a level of insouciance that only federal bureaucrats seem to achieve. But actually, yes they should, said Justice Antonin Scalia, writing for the majority in Michigan v. EPA.
The facts of this case certainly didn’t help the agency’s cause: Its proposal wold cost $9.6 billion each year to comply with, but provide only $4-6 million in direct benefits relating to mercury and the other pollutants in question. Scalia did the math: “The costs to power plants,” and therefore to ratepayers, “were thus between 1,600 and 2,400 times as great as the quantifiable benefits from reduced emissions of hazardous air pollutants.”
The government’s case was so flimsy that dissenting liberal justices had to make up their own entirely different argument to justify supporting the Obama administration’s position. Justice Clarence Thomas, on the other hand, felt disturbed enough to write a concurrence. If government agencies are going to stride forward with such bold claims to power, he wrote, the court might have to reconsider the precedents that form its standard doctrine of regulatory deference.
“Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents,” Thomas wrote, “we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here.”
It should be added, for context, that the EPA is not a benign force. It bullies homeowners and landowners, trying to prevent courts from seeing or second-guessing its own decisions, as in the Sackett case. Its administrators routinely use secret, illegal email accounts to coordinate their actions with radical environmentalists. Agency officials conspire behind closed doors with these fanatics to expand their own power and to subvert the public comments process for regulation.
EPA officials recently worked furiously to grab more power over the nation’s waters, including not just lakes and streams, but even puddles. They frequently play games of sue-and-settle with the same environmentalists, thus manipulating the judicial process in much the same way Br’er Rabbit used the briar patch — “Please, don’t throw me in there! (Wink).”
Any decision or law that limits EPA’s power is thus a good thing. The agency’s original goals of cleaning up and preventing the worst forms of pollution in the environment were attained decades ago. Its role in Washington these days is constantly and egregiously to test the limits of its power. It has metastasized and spread its baleful influence to more and more areas of the economy. It needs thorough reform, but until then, happily, this precedent will keep it a little in check.
