Supreme Court's Mercury Decision Did Not Usher in Sunstein's 'Cost-Benefit State'

by Amy Sinden | July 13, 2015

In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking.   The decision struck down EPA’s limits on mercury emissions from power plants for the agency’s failure to consider costs, and so appears, superficially at least, like a win for the pro-CBA camp.  Indeed, Professor Cass Sunstein of Harvard—President Obama’s former “regulatory czar” and one of CBA’s most prominent cheerleaders—has been crowing about the opinion, hailing it as “a rifle shot,” ringing in the arrival of “the Cost-Benefit State.” 

But Sunstein’s celebration is a bit premature; his so-called “cost-benefit state” remains mostly in his imagination.  In fact, there is good reason to believe that the Court remains quite skeptical of the particular brand of CBA that Professor Sunstein advocates.  And that’s very good news for the rest of us.

The push to incorporate CBA in agency rulemaking was led by industries in the 1980s that were looking for ways to weaken and delay the wave of environmental regulation that had swept the country in the 1970s.  More recently, some prominent academics—most notably Professor Sunstein—have taken up the banner, claiming that CBA will rationalize agency decision making, counteract the influence of special interests, and increase transparency.  Industry and their academic allies like to point to Ben Franklin (who once famously said that he liked to make a list of pros ...

New CPR Issue Alert: Earmarking Away the Public Interest

by Erin Kesler | July 09, 2015
House GOP’s “Negative Earmarks” in Appropriations Bill Would Undercut Key Protections and Cost Thousands of Lives Today, the Center for Progressive Reform released a new Issue Alert, “Earmarking Away the Public Interest: How Congressional Republicans Use Antiregulatory Appropriations Riders to Benefit Powerful Polluting Industries.” The report, by CPR Member Scholars Thomas O. McGarity of the University of Texas School of Law and Richard Murphy of Texas Tech University School of Law and CPR Senior Policy Analyst James Goodwin, examines “negative ...

Two Interesting Things About the Chesapeake Bay TMDL Decision

by Dave Owen | July 07, 2015
In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL.  This is an interesting and important case, and it will take a while to digest.  But just based on a preliminary read, a few issues seem particularly interesting and important. What does TMDL mean?  The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the ...

With Right to Marry, Same-Sex Spouses Now Eligible for Hundreds of Employment Benefits

by Katie Tracy | July 07, 2015
The Supreme Court’s decision on June 26 recognizing same-sex couples’ fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation.  You don’t have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples the right to marry or refusing to recognize their marriage performed in another state is discriminatory.  Fortunately, the Court’s ruling means same-sex spouses will now ...

CPR's Steinzor on the Third Circuit Court's Decision to Uphold the Chesapeake Bay's TMDL Program

by Rena Steinzor | July 06, 2015
The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy.  As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law.  Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty.  The ...

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 ...

CPR President Rob Verchick on BP's Settlement Today

by Robert Verchick | July 02, 2015
Today’s BP settlement is great news for the Gulf Coast economy, which still suffers mightily from the damage BP and its contractors caused. The President and his Department of Justice deserve credit for hammering out this deal, and keeping their focus on the victims of what the President rightly calls the "worst environmental disaster America has ever faced."  If the settlement is to have the impact on the region that we all hope it will, we’ll need to be sure that ...

West Virginia's Bay TMDL Progress Needs to Accelerate

by Evan Isaacson | July 01, 2015
Editors’ Note:  This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first five posts cover the region as a whole, and then Maryland,  Pennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions. Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load ...

The President's Schizophrenia on the Working Class

by Rena Steinzor | June 30, 2015
President Obama’s approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement.  The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans.  These accomplishments remind people ...

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 ...

Michigan v. EPA: Still Hope for the Mercury Rule

by Robert Verchick | June 29, 2015
Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court’s newly divined decision-making standards. At issue was whether the Clean Air Act ...

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 ...

CPR's Sachs and Shudtz in The Hill: Toxic Ignorance and the Challenge for Congress

by Erin Kesler | June 26, 2015
Earlier this week, the House of Representatives passed H.R. 2576, an update to the long-outdated Toxic Substances Control Act (TSCA), which governs regulation of toxic chemicals. CPR Member Scholar and University of Richmond Law School professor Noah Sachs and CPR Executive Director Matthew Shudtz wrote a piece for The Hill, highlighting some crucial problems with the bill the House passed.  They note: Both bills, for example, require EPA to move through the backlog of untested chemicals and make safety determinations.  A safety determination is ...

King v. Burwell and EPA's Climate Rules

by Lisa Heinzerling | June 26, 2015
The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute. But for those who, like me, are not health ...

House Bipartisanship Throws Up Pitifully Weak Toxic Chemicals Control Act Bill

by Rena Steinzor | June 25, 2015
Anyone who cares about the development of sound public policy has grown distraught over congressional gridlock.  The House and Senate are dysfunctional to an extent not seen in modern times.  Neither is able to develop bipartisan legislation to deal with a slew of urgent social problems, from immigration and the minimum wage to the strengthening of outdated health and safety laws.  But the kneejerk glee that accompanies any bipartisan action regardless of content is just as dangerous.  Take, for example, ...

NY's Bay TMDL Progress Report: Ignoring a Worthwhile Investment

by Evan Isaacson | June 24, 2015
TMDL.  The first four posts cover the region as a whole, and then Pennsylvania, Virginia, and Maryland.  Future posts will explore the progress of the remaining three jurisdictions.                 So far, we have evaluated progress of the three core jurisdictions in the Chesapeake Bay Watershed in reducing nutrient and sediment pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).  These “big three” states and members of the Chesapeake Bay Commission are the ...

Senate Joint Committee Hearing Dedicated to Attacking Public Servants

by James Goodwin | June 23, 2015
When your public approval rating has hovered at or below 20 percent for the last several years, maybe the last thing you should be doing is maligning other government institutions.  That didn’t stop a group of Senators from spending several hours doing just that today during a joint hearing involving the Senate Budget and Homeland Security and Government Affairs Committees.  The joint hearing was nominally about a nonsense regulatory reform proposal called “regulatory budgeting” (for more on that, see here), ...
Recommended Resources:
Clean Energy
Renewable Energy Instead of Fossil Fuels

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015