Homer nods in EPA v. EME Homer City Generation – UPDATED

April 29, 2014

On Tuesday, a divided Supreme Court upheld the Environmental Protection Agency’s Cross-State Air Pollution Rule in Environmental Protection Agency v. EME Homer City Generation, L.P.  In short, a majority of the court, in an opinion by Justice Ruth Bader Ginsburg, disagreed with the U.S. Court of Appeals for the D.C. Circuit that the text of the Clean Air Act precluded the EPA from considering costs, among other factors, when determining the extent to which upwind states must reduce the emission of regulated air pollutants for the benefit of downwind states.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented.  The dissenters may have the better of the textual argument (more about that later, time permitting), but Scalia’s opinion also contained a noticeable error.  On page 12 of the dissent Scalia writes:

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation.  Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.

Whitman did involve the claim that the Clean Air Act allowed the EPA to consider costs in setting the NAAQS, but it was not the EPA that argued in favor of considering costs. Rather, it was the industry petitioners who argued that the Supreme Court should overturn D.C. Circuit precedent precluding the consideration of costs in setting NAAQS, and it was the EPA that argued (successfully, as it turned out) that the Clean Air Act precluded the consideration of costs.  The worst part of it is that Scalia should know this because the author of the Supreme Court’s decision in Whitman v. American Trucking Assns was none other than Scalia.

This is not the only problem with Scalia’s dissent.  I was also struck by his opening complaint that Too many important decisions of the Federal Govern­ment are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress.”  I agree with that sentiment, but Scalia may have done more than any other current justice to make that a reality.  See, for example, his opinion in City of Arlington v. FCC, which authorizes agencies to determine the scope of their own regulatory authority if Congress has been insufficiently clear in defining statutory limits.  But that’s a subject for another day.  For now, I’ll stick to noting Scalia’s embarrassing mischaracterization of the issue in American Trucking.  Homer nods.

(Thanks to Richard Lazarus for the pointer.)

UPDATE: As of Wednesday morning (April 30), the Supreme Court has corrected the opinion.  The relevant passage now reads:

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns.,Inc., 531 U. S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.

The header for the relevant section has also been revised.  As originally released, the subhead read: “D. Plus Ça Change: EPA’s Continuing  Quest for Cost-Benefit Authority.”  It now reads: “D. Our Precedent.”

FURTHER UPDATE: Professor Richard Lazarus, the first to notice the error and report it to the Supreme Court, was formally notified of the opinion revision yesterday afternoon.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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