Air Pollution

Policy Integrity's Revesz says government in strong standing following Supreme Court arguments on EPA mercury rule

U.S. EPA's cornerstone Mercury and Air Toxics Standards (MATS) were back in court this week. After being upheld by the U.S. Court of Appeals for the District of Columbia Circuit last year, oral arguments were heard by the Supreme Court yesterday. The question before the court is whether EPA should have considered costs before moving forward with its MATS rule. During today's OnPoint, Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, assesses the arguments presented and questioning by the justices. He also comments on Harvard Law School professor Laurence Tribe's constitutional arguments against EPA's Clean Power Plan.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law. Nice to see you again.

Richard Revesz: Thank you. It's great to be here.

Monica Trauzzi: So, Ricky, EPA's Mercury and Air Toxics Standard was back in court this week, and this is a cornerstone regulation for the Obama administration, upheld before the D.C. Circuit, and this week the Supreme court heard oral arguments on the rule. The question before the court is whether EPA can regulate emissions, mercury emissions, from power plants without first considering cost. Overall, how did the government do and how did industry do?

Richard Revesz: I think the government did very well. The actual question is whether EPA can decide that the toxic air pollutant emissions from power plants can be regulated without considering cost. The costs then do get taken into account in deciding the stringency of the regulation.

Monica Trauzzi: But that happens later in the process.

Richard Revesz: It happens after -- yes, it happens after the agency decides that power plants should be regulated. Um, I thought the argument went well. The justices were very well-prepared, very well-informed, asked probing questions. I thought that during the course of the argument, they came to understand some of the issues better, which is what oral argument should be about, and I had the sense that the center of gravity of the court shifted in the government's favor during the hour and a half of oral arguments.

Monica Trauzzi: So the court, it's reported, appeared divided on the case. Justice Kennedy is considered to be a swing vote. What points did he specifically make? What stood out to you about the things that he was saying?

Richard Revesz: I thought he was trying to grapple with the same issues that the other justices were -- to what extent were costs considered in setting the stringency of the standard, to what extent could costs be considered at a later time. There were questions about how this process works at all mechanically. The chief justice who also, I think, is a vote that we should be watching, was concerned about whether the agency had -- whether the interpretation that the solicitor general attributed to the agency was an interpretation the agency had actually used in its regulatory proceeding, which it should use, and I thought that the solicitor general and also Paul Smith, who was representing some clean energy companies, defending the rule, made some very good points about how the process of considering costs at the second stage worked.

Monica Trauzzi: So in the D.C. Circuit, Justice Kavanaugh and his dissenting opinion said, with a rule that's potentially so burdensome and wide-ranging in scope, cost must be considered. Do you see a pathway in which the court would adopt this opinion?

Richard Revesz: I think it's unlikely, and the reason is this. It's not clear what taking costs into account at that first stage would even mean or how it could be done, and I think that's one of the reasons EPA didn't do it. Because the costs are going to depend a lot on the stringency of the rule. And the way this regulatory process works is that EPA has to set standards that are at least as stringent as what 12 percent of the sources in a category are already meeting. But how stringent that is depends on what the category is, and EPA has the authority to subcategorize sources, as it did in this case. And until it's done that, it's not clear how can you figure out what the costs are. And the subcategorization has to happen at a later time, after EPA has decided that power plants should be regulated. That came across by the time the oral argument was over. There was confusion at first, but eventually it came across.

Monica Trauzzi: So you think there's some wiggle room in how EPA has read and interpreted the statute.

Richard Revesz: Well, absolutely. Absolutely. I mean, first, the statutory language, or what's being interpreted here is appropriate and necessary. And the question that the challengers were presenting was they argue that appropriate and necessary meant the EPA was required to take costs into account. The government's position is that appropriate and necessary doesn't answer that question and that EPA has discretion on this issue and that EPA properly decided not to do so. The Supreme Court has never said that, in the face of statutory silence and costs, that costs have to be taken into account. It's decided three cases on this issue in 15 years, and one it said that silence meant you cannot take costs into account, and in two cases it said discretion to EPA.

Monica Trauzzi: So the court here, this is a big case.

Richard Revesz: Yes.

Monica Trauzzi: I mean, the court has --

Richard Revesz: Huge.

Monica Trauzzi: Yes. For us, for folks like us. The court here has the opportunity to influence the future of air regulation. So was there anything from the arguments and the questions asked by the justices on how they may skew on future Clean Air Act cases?

Richard Revesz: You know, I don't think that this case -- even though -- this case is very important because these are very harmful pollutants, and power plants are, by far, the largest emitters of these very harmful pollutants, so this is a very important case which will make a big difference to our environment. But in terms of legal precedent, it's a kind of one-time-only case because it only affects power plants, it only affects the listing of power plants, and that is done only once. And actually the challengers were arguing that there was something special about this appropriate and necessary formulation, which doesn't appear in a lot of other parts of environmental law, so I think this case is very important for its environmental consequences, and maybe a little less important for its precedential consequences.

Monica Trauzzi: So switching topics before we close, you recently testified before a House Energy and Commerce subcommittee on the Clean Power Plan. Harvard Law professor Laurence Tribe was also there and testified. He pushes, along with many powerful members of Congress, the idea that the power plan is not legally sound, that it's unconstitutional. What do you make of this argument by Tribe? He's a constitutional scholar.

Richard Revesz: He is a constitutional scholar, and he's making three distinct constitutional arguments -- a federalism argument, a taking of private property argument and a non-delegation argument, an argument that the agency's taking over Congress' lawmaking authority. None of these three arguments is at all plausible. And I don't think these arguments are being made for their plausibility in the courts. I think they're being made in order to influence the political process, and it's giving opponents of the Clean Power Plan in Congress cover to go out into the country and tell governors you don't need to come up with implementation plans because as eminent the person, as Professor Tribe has said, that these provisions are unconstitutional. There is no plausible claim that Tribe is right. These are not -- whatever may be the issue with the Clean Power Plan is not unconstitutional, and it's not unconstitutional on any of the three grounds that Tribe attributes to it.

Monica Trauzzi: So legally, you don't think states have that option to just say no. They don't have the legal cover.

Richard Revesz: States actually have the option not to come up with a plan. I mean, it would be very silly to do that because they lose a lot of flexibility the plan gives them, but if they decide not to come up with plans because they believe the law might be unconstitutional, they will have been misled.

Monica Trauzzi: All right. We'll end it there on that note. Thank you for coming on the show.

Richard Revesz: Thank you. It's great to be here.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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