Supreme Court's Judicial Activism Leaves Americans Vulnerable to Mercury Pollution

by Thomas McGarity

June 29, 2015

In a sweeping display of judicial activism the Supreme Court has made it much harder for the EPA to protect Americans from the dangers of exposure to mercury emissions.

The Supreme Court today tossed out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants. 

Justice Scalia refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

Unfortunately, this means that EPA will have to go back to the drawing board and make a fresh determination whether it is appropriate to regulate mercury emissions from power plants after considering the costs of the regulations.

Fortunately, EPA has already determined that the benefits of the regulations far outweigh the costs.  The agency just needs to formalize that determination after allowing public comment on it.

The Supreme Court’s decision will not have much of an impact in states that have already established stringent emissions limitation for mercury under their own laws.

But in states like Ohio and Texas, old power plants that have been belching large quantities of mercury and other hazardous pollutants into the air just got an inappropriate reprieve.

Editor's note: stay tuned for a more detailed analysis of the opinion.


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Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

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