Justice Kagan wrong about EPA and costs: Column

Supreme Court Justice Elena Kagan takes exception

to the court majority conclusions about the Environmental Protection Agency's willingness to consider the costs of its Clean Air Act enforcement policies.

In its 5-4 vote, the court concluded the EPA needed to weigh the potential costs of its mandate to power companies that they eliminate a certain level of toxic heavy-metal pollution from the emissions of coal-fired power generation plants.

Kagan, in dissent:

That is a peculiarly blinkered way for a court to assess the lawfulness of an agency's rulemaking. I agree with the majority — let there be no doubt about this — that EPA's power plant regulation would be unreasonable if '[t]he Agency gave cost no thought at all.' … But that is just not what happened here. Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial 'appropriate and necessary' finding, EPA knew it would do exactly that — knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters.

A couple of points in response:

Kagan assumes that the EPA is even capable of independently assessing the costs it imposes. Like several other federal agencies, the EPA has become adept in recent years at marketing aggressive, new regulations as an economic boon. See: here, hereand here. As this story indicates, the agency expects to find a way to make the economics of compliance appear to be a financial bonanza.

But contrary to the justice's point, the EPA has been arguing, explicitly, that the aspects of its far-reaching Clean Power Plan that come under the umbrella of the Clean Air Act do not have to be justified in terms of cost. Indeed, the agency insisted (until Monday, at least) that the Act forbid cost consideration. From the EPA's assessment of its duty under the Act:

The air quality standards must be set based on science without regard to costs of implementing pollution controls to achieve the standards. Costs are considered during implementation of the standards.

That means that violators of the EPA's interpretations of the Clean Air Act are judged out of compliance until they find a way to meet the agency's clean-air standard. It is why, for example, a desert community like Maricopa County, Arizona, chronically falls out of compliance with the agency's current ozone standard.

But a resolution of that lack of compliance does not include any exemptions based on the overbearing cost of compliance. All it means is that Maricopa County is violating the law and is expected, at some time in the future, to do whatever it takes to meet the standard.

And, ultimately, to pay whatever it takes.

Doug MacEachern is a columnist at the Arizona Republic, where this column was first published.

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