So Long, and Thanks for All the Mercury-Filled Fish: SCOTUS Strikes Down EPA Regulations

If the recent victory for LGBT rights happened to trick you into believing that the US Supreme Court was shifting to a more enlightened, progressive place where compassionate and learned scholars ruled the land fairly—and if that delusion persisted through the court’s post-gay marriage ruling on the use of midazolam in lethal injections—then maybe their June 29 ruling on power plant emission regulations will shatter that short-lived dream. And let it be a reminder to us all that our SCOTUS is still a highly politicized, highly partisan battleground.

In Michigan v. Environmental Protection Agency (EPA), with a 5-4 majority opinion authored by Justice Antonin Scalia, the Supreme Court ruled that the EPA’s proposed—and already widely enacted—regulations on toxic power plant emissions are invalid because of a failure to adequately consider the costs to industry that those regulations might incur. In this they validate the many lawsuits filed against the EPA by the coal industry and others since those standards were set.

I’ll note here that the while the decision is problematic, arrived at through selective, if not outright fallacious reasoning, it is neither unprecedented nor completely unjustifiable. As Justice Elena Kagan notes in her dissent, “Costs matter in regulation.” Indeed, costs, and a myriad of other complex political and socioeconomic factors all matter, and have mattered, in devising industrial regulations. So the act of introducing money as a point of contention is at least understandable, if not still altogether disagreeable.

Rather, what should have humanists outraged is the way in which Scalia grossly weighs industrial cost against the health and lives of human beings—particularly pregnant women and young children, who are most at risk from the kinds of chemical wastes produced by power plants. Yes, cost matters, but is there any point at which money should supersede the well-being of people? A resounding “yes!” issues forth from the mouths of capitalists the world over. I know, and you know, that this mindset is prevalent—if not dominant—in the world of US corporatism, but rarely is it ever expressed so bluntly and by so high an authority. Here we have the lives of US citizens explicitly reduced to dollar signs. As Scalia writes: “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

A “few dollars in health or environmental benefits”—what I’m sure to Scalia is a witty dismissal of the goals of the EPA— is a bit more significant when you talk to people who actually know anything about science. A brief filed by the American Academy of Pediatrics [legal citations removed] notes that:

The Clean Air Act provides for the control of “hazardous air pollutants” (“HAPs”): airborne toxics, such as mercury, arsenic, cadmium, hydrochloric acid, and hydrogen cyanide. Congress singled out these pollutants for their “potent” and “especially serious health risks,” even in relatively small quantities. Those risks include “birth defects, damage to the brain or other parts of the nervous system, reproductive disorders, and genetic mutations,” as well as cancer (air toxics may be, inter alia, “carcinogenic, mutagenic, teratogenic, neurotoxic,” “cause reproductive dysfunction,” or “acutely or chronically toxic”).

Likewise, the website for the EPA states the following:

Toxic air pollutants from fossil fuel-fired power plants cause serious health impacts. These facilities are the largest source of mercury emissions to the air… Methylmercury exposure is a particular concern for women of childbearing age, unborn babies, and young children, because studies have linked high levels of methylmercury to damage to the developing nervous system. This damage can impair children’s ability to think and learn.

Other toxic metals such as arsenic, chromium and nickel can cause cancer.  Acid gases cause lung damage and contribute to asthma, bronchitis and other chronic respiratory disease, especially in children and the elderly.

Reducing toxic power plant emissions will also cut fine particle pollution and prevent thousands of premature deaths and tens of thousands of heart attacks, bronchitis cases and asthma attacks.

And further, the EPA notes that “The benefits [of regulation] are widely distributed and are especially important to minority and low income populations who are disproportionately impacted by asthma and other debilitating health conditions.” So no, we’re not talking about “just a few dollars,” we’re talking about the lives of thousands of citizens, and the suffering of children—particularly already disenfranchised children—across the country. In other words, the decision here, among other things, further perpetuates the well-established intersection between public health and institutionalized racism.

What’s worse is that, in typical Scalian fashion, his decision hinges on subjective linguistic technicalities; he obsessively dissects specific words and phrases in a refusal to consider the larger issues at play. In the Clean Air Act, Congress states that an agency can apply regulations only after it has thoroughly confirmed that those regulations are “appropriate and necessary.” The word “appropriate” serves as Scalia’s semantic fodder for the majority of his opinion, as he explores, in various ways, how the EPA did not “appropriately” consider the potential cost to industry in creating their regulations.

There are two problems here: first, as the EPA argued, and as is noted in Kagan’s dissent, it is not the job of the EPA to consider costs when initially devising regulations—their only job is to identify and then limit or remove things that are harmful to people and/or the environment. Kagan writes: “…the [Clean Air] Act instructs EPA to make the threshold decision to regulate based solely on the quantity and effects of pollutants discharged; costs enter the picture afterward…”

Second, and perhaps more importantly, is the fact that the EPA did consider the cost to industry, in the same way that they always do—which is to say, in the later stages of regulatory development. Scalia, impatient man that he is, thinks it only “appropriate” if costs are considered at the very beginning of the process. This is not how the EPA has ever operated, nor is it how the EPA is instructed by Congress to operate.

However, as EPA Chief Gina McCarthy assures us, the ruling here is only narrowly applicable; it invalidates the emission regulations on mercury and other airborne toxic chemicals, but does nothing to effect the Clean Power Plan’s regulation on carbon dioxide emissions or other climate-related by-products. And further, the court didn’t strike down the regulations in any absolute sense, but rather remanded them to the lower circuit where they can be reconsidered and filtered through a more rigorous “cost-benefit” analysis. Hard to view either of those things as being entirely positive, but with Scalia and his ilk, we should take what we can get.

It’s a tough ruling—and it only marks the continuation of a conservative fight against regulation that will continue up to (and hopefully not through) the next election. Just last Tuesday, the Republican-led House introduced a budget plan that would slash the EPA’s budget by 9 percent, significantly crippling their ability to impose or maintain regulations of any kind—a move that would expose citizens to more toxic chemicals in their air and water, and likely undo all of the current administration’s progress on climate change. To quote justice Kagan one last time: “…the result is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives. I respectfully dissent.”