The Supreme Court decision blocking federal regulations on mercury and other pollutants isn’t the tremendous victory for Big Coal that it first appeared to be. In the majority opinion, Justice Antonin Scalia agreed with industry representatives that the Environmental Protection Agency had erred by not including costs in its calculations before making the decision to regulate, especially when those costs were expected to run into the billions of dollars

But he also cast no aspersions on the cost-benefit analysis that the EPA conducted later in the regulatory process, and indicated that benefits don’t have to be calculated entirely in dollars and cents. Preventing illness and premature death are the ultimate benefits of these necessary rules. In the end, the regulations will be delayed for a few more years, giving some of the dirtiest power plants more time to operate.

The case revolved around the question of whether the EPA had to figure costs into its initial decision to regulate mercury and other emissions from power plants — or whether it could, as it contended, do that calculation later, when it set the actual standards that would determine how reductions in emissions would be implemented. Scalia falsely likened the EPA’s position to buying a Ferrari while planning to look at the sticker price only when the time came to decide on an upgraded sound system.

Environmental protection is a necessity, not a luxury. A more appropriate analogy would be a family deciding to buy a car and then looking at the cost of various models, new versus used, before deciding what to purchase.


Scalia raised a fair point that there must be some recognition of cost from the start. The nation wouldn’t impose $20 billion a year in new environmental regulations in order to prevent a single trip to the doctor. But the costs of the pollution-reducing scrubbers needed at coal plants weren’t entirely unknown to the EPA, nor were the terrible health tolls from mercury and fine-particle pollution. There is no doubt that some regulation of mercury was necessary; if anything, the EPA was slow to propose it after decades of study as well as lawsuits by environmental groups.

The delay isn’t ideal, but importantly, the court did not retreat from the goal of reducing harmful coal plant emissions or send the EPA back to square one. It didn’t throw out the proposed standards or the cost-benefit analysis the agency eventually developed. (For that matter, two-thirds of the power plants in the nation already meet the standards.) Rather, the EPA must now reconfigure its proposal under the guidance of a lower court. That should happen as fast as possible.

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