The Implications of Michigan v. EPA for Regulation of Hazardous Air Pollutants and Beyond

by Robert Glicksman | July 06, 2015

The following post is based on an article by Professor Glicksman on the George Washington Law Review website.[1]

In Michigan v. Environmental Protection Agency,[2] Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at multiple subsequent stages of the rulemaking, was unreasonable. The provision that EPA improperly interpreted is narrow in scope, applying only to EGUs. The decision remanding the case to the D.C. Circuit is unlikely to significantly affect EPA’s effort to regulate EGUs under § 112, unless the delay in the onset of regulation on remand stretches into a presidential administration that views this regulatory initiative less favorably than the Obama Administration’s EPA. Nevertheless, the case establishes principles and raises important questions of environmental and administrative law that are likely to arise in a host of future regulatory contexts.

In the face of EPA’s languid regulation of hazardous air pollutants, Congress in 1990 required EPA to regulate emissions of more than 180 hazardous air pollutants ...

Michigan v. EPA: Costs Matter, But Everything Else Is Up For Grabs

by Lisa Heinzerling | June 30, 2015
In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act ...

The Supreme Court Gives Power Plants a Mercury Break

by Thomas McGarity | June 30, 2015
Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants. In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions. The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from ...

CPR's Tom McGarity Responds to Supreme Court's Examination of Costs Associated with Rule-making in Michigan v. EPA

by Erin Kesler | March 25, 2015
Today, the Supreme Court heard oral argument in Michigan v. EPA.  CPR Member Scholar and University of Texas School of Law professor Thomas O. McGarity responded to the debate with the following statement: Following today’s oral arguments, the Supreme Court must decide whether EPA misinterpreted a section in the Clean Air Act requiring it to regulate hazardous emissions from power plants when such regulation is “appropriate and necessary.”  EPA interpreted those words to require the agency to focus on the harm that ...

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