A not- so- big win for Big Coal

Los Angeles Times - - OPINION -

The Supreme Court de­ci­sion block­ing fed­eral reg­u­la­tions on mer­cury and other pol­lu­tants isn’t the tremen­dous vic­tory for Big Coal that it first ap­peared to be. In the ma­jor­ity opin­ion, Jus­tice An­tonin Scalia agreed with in­dus­try rep­re­sen­ta­tives that the En­vi­ron­men­tal Pro­tec­tion Agency had erred by not in­clud­ing costs in its cal­cu­la­tions be­fore mak­ing the de­ci­sion to reg­u­late, es­pe­cially when those costs were ex­pected to run into the bil­lions of dol­lars

But he also cast no as­per­sions on the cost- ben­e­fit anal­y­sis that the EPA con­ducted later in the reg­u­la­tory process, and in­di­cated that ben­e­fits don’t have to be cal­cu­lated en­tirely in dol­lars and cents. Pre­vent­ing ill­ness and pre­ma­ture death are the ul­ti­mate ben­e­fits of these nec­es­sary rules. In the end, the reg­u­la­tions will be de­layed for a few more years, giv­ing some of the dirt­i­est power plants more time to op­er­ate.

The case re­volved around the ques­tion of whether the EPA had to fig­ure costs into its ini­tial de­ci­sion to reg­u­late mer­cury and other emis­sions from power plants, or whether it could, as it con­tended, do that cal­cu­la­tion later, when it set the ac­tual stan­dards that would de­ter­mine how re­duc­tions in emis­sions would be im­ple­mented. Scalia falsely likened the EPA’s po­si­tion to buy­ing a Fer­rari while plan­ning to look at the sticker price only when the time came to de­cide on an up­graded sound sys­tem.

En­vi­ron­men­tal pro­tec­tion is a ne­ces­sity, not a lux­ury. A more ap­pro­pri­ate anal­ogy would be a fam­ily de­cid­ing to buy a car and then look­ing at the cost of var­i­ous mod­els, new ver­sus used, be­fore de­cid­ing what to pur­chase.

Scalia raised a fair point that there must be some recog­ni­tion of cost from the start. The na­tion wouldn’t im­pose $ 20 bil­lion a year in new en­vi­ron­men­tal reg­u­la­tions in or­der to pre­vent a sin­gle trip to the doc­tor. But the costs of the pol­lu­tion- re­duc­ing scrub­bers needed at coal plants weren’t en­tirely un­known to the EPA, nor were the ter­ri­ble health tolls from mer­cury and fine- par­ti­cle pol­lu­tion. There is no doubt that some reg­u­la­tion of mer­cury was nec­es­sary; if any­thing, the EPA was slow to pro­pose it af­ter decades of study as well as law­suits by en­vi­ron­men­tal groups.

The de­lay isn’t ideal, but im­por­tantly, the court did not re­treat from the goal of re­duc­ing harm­ful coal plant emis­sions or send the EPA back to square one. It didn’t throw out the pro­posed stan­dards or the cost- ben­e­fit anal­y­sis the agency even­tu­ally de­vel­oped. ( For that mat­ter, two- thirds of the power plants in the na­tion al­ready meet the stan­dards.) Rather, the EPA must now re­con­fig­ure its pro­posal un­der the guid­ance of a lower court. That should hap­pen as fast as pos­si­ble.

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