The Supreme Court ruled against the Environmental Protection Agency 5-4 this week, saying the EPA erred in not considering costs when implementing new regulations governing toxic emissions from coal-fired power plants:

The 5-4 decision Monday went against an Environmental Protection Agency mercury rule that forces utilities to shutter old coal plants or invest billions of dollars in equipment to clean up the emissions from their smokestacks. The court said the EPA should have considered the costs and benefits before deciding whether to impose those limits on the toxic emissions.

“The agency must consider cost -— including, most importantly, cost of compliance -— before deciding whether regulation is appropriate and necessary,” Justice Antonin Scalia wrote in the majority opinion. “Reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.”

Ironically, the rule could stay on the books while the EPA performs the analysis:

The decision to send the regulation back to a lower court to decide what happens next leaves open the possibility that the 2011 rule, called the mercury and air toxics regulation, could be left on the books while the agency does the analysis that the high court said it should have done long ago. It could take a few months for that lower-court decision.

Despite the victory, it may have come at a cost that is too late to recover. The rule went into place several years ago and the impact has taken its toll:

Since 2012, when the EPA finished its mercury rule, at least 58 coal-burning power plants have partially or entirely shut down, according to data from the U.S. Energy Information Administration. That has taken more than 16,000 megawatts of capacity offline, enough to power roughly 16 million homes.

The decision also looks like it will cause further rifts between the Obama administration and Congress:

Earnest said the decision won’t hold back the administration’s broader clean power initiatives.

“There is no reason this court ruling should have any impact on the ability of the administration to develop and implement the Clean Power Plan,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) called the ruling a “a cutting rebuke to the administration’s callous attitude” toward coal-producing states and said there is “no reason” for governors to comply with Obama administration’s climate regulations before the courts have the chance to weigh in.

The ruling does not make McConnell’s criticism “accurate or in the direct interest of the American public,” Earnest said. “In both cases, he is wrong.”

The broader issue here is that the Obama administration knows it will take so long for the courts to react that when the time comes to evaluate the stringent new rules, the damage will already have been done.

The administration does this, of course, knowing stricter air pollution controls make it difficult and sometimes impossible to keep coal plants running. This paves the way for more solar and wind energy sources to step in, which is exactly what the administration prefers.


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