Scalia’s take on EPA rule could haunt Trump’s border plan

By Amanda Reilly | 01/30/2017 01:34 PM EST

Will a Supreme Court decision penned by Justice Antonin Scalia come back to haunt President Trump's plans to build a wall along the U.S.-Mexico border? Three legal scholars argue it could happen.

Will a Supreme Court decision penned by Justice Antonin Scalia come back to haunt President Trump's plans to build a wall along the U.S.-Mexico border? Three legal scholars argue it could happen. Photo courtesy of Flickr.

A Supreme Court decision written by Justice Antonin Scalia that upended the Obama administration’s mercury standards for power plants in 2015 may well hinder President Trump’s grand plans to build a wall along the U.S.-Mexico border, legal experts say.

In Michigan v. EPA, the high court ruled 5-4 that EPA failed to consider regulatory costs when it determined it was "appropriate and necessary" to limit power plants’ emissions of hazardous air pollutants.

For authority to build the wall, legal scholars say, the Trump administration may tap a 2006 law that uses the language "necessary and appropriate," similar to the phrase EPA used in its toxic emissions rule. So foes of Trump’s wall could argue that the administration must show the project’s final benefits outweigh its costs — estimates have varied wildly from about $8 billion to more than $25 billion.


"It’s possible that the president would come up with a cost-benefit analysis that shows more good than harm, but we’re deeply skeptical of that claim," said Jonathan Masur, a professor at the University of Chicago Law School. "There’s a clear legal pathway that has real grounding in existing Supreme Court precedent" for challenging the proposed wall.

Masur and two colleagues from the University of Chicago Law School presented their argument last week in an opinion piece in The New York Times. They’re releasing a paper shortly on the broader impacts of the high court’s mercury ruling.

"The paper sprang out of Michigan v. EPA," Masur said. "We realized when the wall became a topic of conversation that the statute the president was citing contained language that was very similar to Michigan v. EPA."

In the case, more than 20 states led by Republican governors and various industry groups challenged EPA’s 2011 mercury and air toxics standards, or MATS, for power plants. They argued that the $9.6 billion in compliance costs far outweighed the benefits.

Scalia — who died in February — agreed in his 2015 decision with challengers that EPA failed to act rationally in its interpretation of "appropriate and necessary" under Section 112 of the Clean Air Act.

"The agency gave cost no thought at all, because it considered cost irrelevant to its initial decision to regulate," the justice wrote in the 15-page opinion.

"It is unreasonable," Scalia added, "to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore cost" (Greenwire, June 29, 2015).

The Supreme Court remanded the rules to EPA, which issued a supplemental finding reaffirming its original decision. EPA found the benefits of the standards "far outweigh the costs." Litigation over that finding is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

Like the Clean Air Act, the 2006 Secure Fence Act — which authorized the construction of hundreds of miles of fencing along the U.S.-Mexico border — contains the phrase "necessary and appropriate" as a threshold consideration.

Trump cited the law in his executive order last week on border security as a potential source of authority for building a wall between the United States and Mexico.

The University of Chicago professors say it would be difficult to show that the benefits of the wall exceed the costs if the Trump administration is held to Michigan v. EPA. Trump says the wall would cost $8 billion, but other estimates show it could be as high as $15 billion to $25 billion.

The professors say that there’s no evidence the wall would keep out undocumented immigrants or lower crime and that the economic effects "would quite likely be zero or negative" given the contribution of illegal immigrants to the nation’s economy.

"No court could reasonably hold that it is ‘necessary and appropriate’ to spend billions of dollars to achieve benefits this doubtful," they wrote.

‘Flypecking the balance sheet’

Amy Sinden, a law professor at Temple Law School who generally supports more progressive policies than the authors of the op-ed, praised them for making a "good argument."

"What’s happened in the Trump era is that his ideas are so far out on the fringe that suddenly, when you’re talking about normal policy, people who would disagree now agree," she said.

Sinden has argued that federal agencies have a variety of ways to consider costs as part of their decisions and that Michigan v. EPA shouldn’t be seen as holding agencies to a specific manner of quantifying costs and benefits.

The wall would likely fail regardless of the type of analysis, she said.

"When you’re talking about costs that are grossly disproportionate, you don’t even need to waste time trying to discern the exact dollar figure," she said.

John Walke, director of the climate and air program at the Natural Resources Defense Council, said he believes Michigan v. EPA was wrongly decided but likewise said the professors had raised a "very logical case" against the border wall.

Emily Hammond, a law professor at George Washington University who also believes that courts shouldn’t impose strict cost-benefit analysis requirements on agencies, said challenging the plans to build a wall would likely still be difficult given the deference courts typically give to federal agencies.

"Typically, we would expect a court to be deferential to an agency’s assessment," she said. "You wouldn’t expect a court to get involved with flyspecking the balance sheet."

Michigan v. EPA has yet to appear in many court cases since the Supreme Court issued the opinion in 2015. But the University of Chicago professors argued that it could have a much more sweeping impact "beyond the wall" given that many other statutes contain similar "necessary and appropriate" language.

"While the legal details are arcane, Justice Scalia’s ghost may also block Mr. Trump’s efforts to eliminate climate regulations and deregulate the financial industry," the professors said.

At a recent law conference in Washington, Lisa Heinzerling, a professor at Georgetown Law and a former EPA official in the Obama administration, said Michigan v. EPA was among three "power canons" that Supreme Court justices have embraced to keep power in the courts rather than in the administration.

Michigan v. EPA could be "the most influential and the most destructive" of the three, she said, given that the word "appropriate" appears more than 8,000 times in the U.S. code.

Walke of NRDC said that, in a twist, it could come back to bite conservative politicians who have previously called for stricter cost-benefit analyses by agencies in a bid to kill environmental regulations with benefits that are difficult to monetize.

"I think applying cost-benefit analysis in the way that Republicans have called for when they wanted to trash environmental regulations and worker safety regulations is going to turn around and bite them when it’s applied to their own agenda," he said.

"I think this is a case of be careful what you ask for," Walke added.