The Supreme Court has made quite a few head­lines late­ly, includ­ing many argu­ing that the court has recent­ly tak­en some­what of a left turn. Not so fast, though: Last week, SCO­TUS, in a case that drew lit­tle atten­tion, Michi­gan v. Envi­ron­men­tal Pro­tec­tion Agency, No. 14 – 46, ruled against major Envi­ron­men­tal Pro­tec­tion Agency (EPA) reg­u­la­tions that con­strain the lev­els of mer­cury and oth­er tox­ins that coal-fired pow­er plants can release into the air.

The EPA estimates that compliance with mercury emissions regulation would prevent 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks each year. The conservative bench of the Supreme Court felt that that pales in comparison to the labors coal companies will have to endure in order to comply with the regulations.

In a 5 – 4 deci­sion, the Court agreed with oppo­nents of the Mer­cury and Air Tox­ins Stan­dards (MATS) reg­u­la­tion — most­ly indus­try groups and Repub­li­can-led states — that the stan­dards put on pow­er plants by the EPA were pro­hib­i­tive­ly expen­sive and that the Oba­ma admin­is­tra­tion was wrong to impose rules in which, the court felt, the costs of insti­tut­ing the stan­dard vast­ly out­weighed the benefits.

The Court over­turned a pre­vi­ous deci­sion in favor of the EPA by the Court of Appeals for the D.C. Cir­cuit. The deci­sion is a major suc­cess for indus­try groups and Repub­li­cans who have con­tin­u­al­ly chal­lenged EPA reg­u­la­tions on fos­sil-fuel companies.

The deci­sion, penned by Jus­tice Antonin Scalia and joined by the rest of the con­ser­v­a­tive bench, seems to val­i­date those who feel that the Oba­ma admin­is­tra­tion is guilty of gov­ern­ment over­reach — what Sen­a­tor Mitch McConnell of Ken­tucky calls Obama’s ​“War on Coal.” But the president’s reg­u­la­tions should be seen as rea­son­able, per­haps even unam­bi­tious, lim­its on tox­ins and chem­i­cals whose harms on human health and the envi­ron­ment have been well-known for decades. Now, how­ev­er, even those rel­a­tive­ly weak lim­its have been struck down.

The Court had plen­ty to say about cost. ​“The agency gave cost no thought at all,” thun­dered Scalia, lat­er adding in a par­tic­u­lar­ly bizarre (and clas­si­cal­ly Scalian) anal­o­gy: ​“By EPA’s log­ic, some­one could decide whether it is ​‘appro­pri­ate’ to buy a Fer­rari with­out think­ing about cost, because he plans to think about cost lat­er when decid­ing whether to upgrade the sound system.”

Mer­cury is no lux­u­ry product

Mer­cury emis­sions are released large­ly due to indus­tri­al activ­i­ties, par­tic­u­lar­ly gold-min­ing and coal com­bus­tion. Today, how­ev­er, due to the decrease in emis­sions from oth­er sources (large­ly because of suc­cess­ful reg­u­la­tion), mer­cury is emit­ted pre­dom­i­nant­ly from the coal and oil-fired pow­er plants the con­ser­v­a­tive bench of the Supreme Court is so averse to regulating.

Accord­ing to the EPA, ​“In the pow­er sec­tor alone, coal-fired pow­er plants are respon­si­ble for 99 per­cent of mer­cury emis­sions.” When in 2011 the MATS stan­dards were first insti­tut­ed as part of the Clean Air Act, health groups across the US cel­e­brat­ed what were, and still are, the first nation­al stan­dards on mer­cury emis­sions from pow­er plants.

The long-await­ed stan­dards went into place 20 years after they were first man­dat­ed by the Clean Air Act. After all, mer­cury is a noto­ri­ous­ly dan­ger­ous pol­lu­tant. The release of mer­cury into water sup­plies and soil over the many years of indus­tri­al activ­i­ty has caused such high con­cen­tra­tions of organ­ic mer­cury through­out the food chain that preg­nant women are now rou­tine­ly warned about eat­ing seafood. A live­ly dri­ve is under­way that is push­ing to put warn­ing labels about mer­cury lev­els on all seafood prod­ucts — a step reg­u­la­tors have long avoid­ed. Stud­ies have shown dan­ger­ous­ly high con­cen­tra­tions in fish and the water sup­plies near coal-fired pow­er plants, and pro­gres­sive­ly low­er, but sig­nif­i­cant, lev­els in live­stock and the diets of coastal communities.

This is far from new, emerg­ing research. The pre­ma­ture deaths, fetal defects, neu­ro­log­i­cal and devel­op­men­tal dis­or­ders caused by mer­cury expo­sure have been well-known for much of the 20th century.

The EPA esti­mates that com­pli­ance with mer­cury emis­sions reg­u­la­tion would pre­vent 11,000 pre­ma­ture deaths, 4,700 heart attacks and 130,000 asth­ma attacks each year.

Nonethe­less, the con­ser­v­a­tive bench of the Supreme Court felt that that pales in com­par­i­son to the labors coal com­pa­nies will have to endure in order to com­ply with the reg­u­la­tions. Scalia wrote, ​“It is not ratio­nal, nev­er mind ​‘appro­pri­ate,’ to impose bil­lions of dol­lars in eco­nom­ic costs in return for a few dol­lars in health or envi­ron­men­tal benefits.”

Although many elec­tric­i­ty gen­er­a­tors in the U.S. have already com­plied, or begun to com­ply, with the MATS stan­dards, resis­tance from the coal sec­tor and its back­ers has been fierce — part of a new trend to delay reg­u­la­tion on the basis of tech­ni­cal­i­ties and rhetoric about gov­ern­ment over­reach when no argu­men­ta­tive feint chal­leng­ing the sci­ence can be mustered.

Los­ing on a technicality

More than a minor moral dis­crep­an­cy exists at the heart of the court’s deci­sion, how­ev­er. When Jus­tice Scalia referred to the ben­e­fits as being ​“a few dol­lars,” he referred to an oft-cit­ed EPA sta­tis­tic that the eco­nom­ic ben­e­fits of reduc­ing mer­cury from pow­er plants would be between $4 and $9 million.

Accord­ing to oth­er EPA esti­mates, how­ev­er, the total health and relat­ed ben­e­fits of the MATS reg­u­la­tion were esti­mat­ed to reach $89 bil­lion — annually.

This dis­crep­an­cy formed the basis of the deci­sion. Indus­try groups had made the argu­ment that the Oba­ma admin­is­tra­tion had imposed a cost of $9.6 bil­lion to achieve $6 mil­lion in ben­e­fits, but the EPA also claimed that the costs yield­ed tens of bil­lions of dol­lars in ben­e­fits. This is because the reg­u­la­tion, whol­ly apart from mer­cury reduc­tions, would force coal-fired pow­er plants to install scrub­bers. These scrub­bers would, in addi­tion to reduc­ing mer­cury, reduce pol­lu­tants such as sul­phur diox­ide, oth­er heavy met­als and par­tic­u­late mat­ter. Con­sid­er­ing these ​“co-ben­e­fits” sub­stan­tial­ly increas­es the num­ber of dol­lars that could be saved by the MATS stan­dards — at least $26 bil­lion and at most $89 bil­lion dol­lars, a year.

Unfor­tu­nate­ly, this also fell right into the hands of fos­sil-fuel com­pa­nies: when a handy, but erro­neous, sta­tis­tic like “$6 mil­lion dol­lars of ben­e­fits for a $9.6 bil­lion cost” can be used to delay reg­u­la­tion, so be it.

Strange­ly, the deci­sion con­ced­ed that these co-ben­e­fits dras­ti­cal­ly increased the score, but decid­ed not to con­sid­er them any­way because of a tech­ni­cal­i­ty. Under the Clean Air Act rules, the EPA first assessed whether it was ​“appro­pri­ate and nec­es­sary” to reg­u­late mer­cury and only then con­sid­ered the costs of reg­u­lat­ing it. The court, how­ev­er, con­tend­ed that the costs of reg­u­lat­ing mer­cury should have been a cen­tral com­po­nent of the ​“appro­pri­ate and nec­es­sary” con­sid­er­a­tion, pos­si­bly even pre­ced­ing it, and should not have fol­lowed at a lat­er stage.

In oth­er words, what it came down to for the court was the fact that the EPA first decid­ed that mer­cury was too harm­ful to be unleashed on soci­ety at large, decid­ed to reg­u­late it and only then pro­ceed­ed to put a num­ber on it. No mat­ter that the EPA even­tu­al­ly found that they would ulti­mate­ly save at least $26 bil­lion for $9.6 bil­lion in costs — ulti­mate­ly, it was more impor­tant to the con­ser­v­a­tive bench that the EPA be scold­ed for pri­or­i­tiz­ing pub­lic health over fos­sil-fuel prof­its, than uphold leg­is­la­tion that makes com­plete sense. In respons­es Jus­tice Scalia mere­ly not­ed, ​“We may uphold agency action only upon the grounds on which the agency acted.”

Delay­ing regulation

Fos­sil-fuel inter­ests have long tried to make the dic­tates of the Clean Air Act more and more tooth­less. The Bush admin­is­tra­tion tried repeat­ed­ly to gut key parts of the Clean Air and Clean Water acts, long con­sid­ered the most impor­tant pieces of envi­ron­men­tal leg­is­la­tion the U.S. has seen. Bush’s Clean Skies ini­tia­tive, designed to make the admin­is­tra­tion seem more open to green ini­tia­tives, tried to chip away at CAA stan­dards, allow­ing pow­er plants to wait 15 more years to install con­trol equip­ment and emit sig­nif­i­cant­ly more nitro­gen oxide, sul­fur diox­ide and mer­cury than allowed under CAA stan­dards. Under the Bush admin­is­tra­tion, the EPA mod­i­fied CAA rules to exempt oil and coal-fired pow­er plants from mer­cury reg­u­la­tions, but a fed­er­al appeals court struck them down.

While the Bush admin­is­tra­tion failed to com­plete­ly chip away the man­dates of the CAA, it did man­age to delay the rules on mer­cury emis­sions and oth­er tox­ins from being imple­ment­ed on pow­er plants.

Nonethe­less, the strat­e­gy to delay reg­u­la­tion through legal chal­lenges has been the major strat­e­gy of choice of Repub­li­cans in both cham­bers of Con­gress. In 2014, a non­par­ti­san Con­gres­sion­al Research Ser­vice not­ed that ​“vir­tu­al­ly all major EPA reg­u­la­to­ry actions are sub­ject­ed to court chal­lenge, fre­quent­ly delay­ing imple­men­ta­tion for years.”

Mean­while, in a 2014 deci­sion, while uphold­ing the right of the EPA to reg­u­late green­house gas­es under the CAA, Jus­tice Scalia said, ​“the EPA is get­ting almost every­thing it wants.”

The Oba­ma admin­is­tra­tion is expect­ed release sev­er­al new cli­mate change rules to lim­it green­house gas pol­lu­tion from pow­er plants this sum­mer, which con­gres­sion­al Repub­li­cans and indus­try are already chal­leng­ing by pre­emp­tive­ly launch­ing leg­is­la­tion to block the rules. In addi­tion, leg­is­la­tion to block or delay Obama’s new clean water reg­u­la­tion to lim­it pol­lu­tion in lakes, rivers and streams is also being advanced.

Luck­i­ly for these Repub­li­cans, the Supreme Court approves of this strategy.