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

by Erin Kesler

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 emissions of hazardous pollutants, like Mercury, can cause to human health and the environment, and not on how much it would cost industry to reduce those emissions.

EPA’s interpretation is fully consistent with the Clean Air Act’s precautionary approach to protecting public health and the environment from toxic emissions. 

History has proved time and again that if EPA must consider costs in deciding whether to regulate, industry advocates will dominate the deliberations with inflated cost projections, and the agency will never get around to protecting the public.

The statute makes it clear that cost considerations are relevant in determining the stringency of controls that EPA requires, but they are not relevant in deciding whether to regulate toxic emissions in the first place.

The Supreme Court has on many occasions over the past 30 years held that reviewing courts are to defer to EPA’s interpretations of the Clean Air Act so long as they are reasonable.

The Court should uphold EPA’s reasonable interpretation in this case.



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