Updated: For an analysis of Judge Kavanaugh’s excellent dissenting opinion, see below the break.
Today, the D.C. Circuit Court of Appeals rendered a split 2-1 decision that upholds the Environmental Protection Agency’s Mercury and Air Toxics Standards regulation, also known as the Utility MACT. The decision in White Stallion Energy Center LLC et al. v. EPA et al. is available here.
As I explain here, the absurd justification for the mercury rule, one of the most expensive and consequential regulations of all time, is to protect a supposed population of pregnant subsistence fisherwomen, who consume hundreds of pounds of self-caught fish from exclusively the most polluted inland bodies of fresh water.
There is a “narrow” dissent by Judge Brett Kavanaugh, as described by InsideEPA. I’ll update this post when I’ve digested the decision. [See update after the break]. Below, I’ve posted an image depicting the costs and (supposed*) beneficiaries of EPA’s mercury rule.
*EPA has never actually identified a pregnant, subsistence fisherwoman of the sort it purports to protect. Rather they are modeled to exist.
1:36 PM Updated: I’ve digested Judge Brett Kavanaugh’s dissenting opinion. As I note above, his dissent has been described in the press as being “narrow.” I disagree. In fact, it is a strong opinion, and, more importantly, it describes the exact path to obtaining Supreme Court review of the split decision.
As I’ve argued above and elsewhere, EPA’s mercury rule is absurd, because it costs almost $10 billion every year, in order to protect people that don’t exist (i.e., pregnant, subsistence fisherwomen). EPA argued, and the majority on the D.C. Circuit Court agreed, that EPA bears no responsibility to take costs into account when it decided whether to impose the Utility MACT. Kavanaugh believes otherwise. Here are the key pull quotes from his dissent:
EPA’s position now is that EPA may reasonably exclude consideration of costs in determining whether it is “appropriate” to regulate electric utilities under the [Utility] MACT program. The majority opinion upholds EPA’s interpretation.
I respectfully disagree with the majority opinion…
…It is entirely unreasonable for EPA to exclude consideration of costs in determining whether it is “appropriate” to regulate electric utilities under the [Utility] MACT program.
Later he explains,
To be sure, as I have said, EPA may be able to conclude that the benefits outweigh the costs in determining whether it is “appropriate to regulate electric utilities under the [Utility] MACT program. But to reiterate, that’s not what EPA has done in this rule. Rather, according to EPA, it is irrelevant how large the costs are or whether the benefits outweigh the costs in determining whether it is “appropriate” to regulate electric utiltities under the [Utility] MACT program. [formatting in original]
Judge Kavanaugh indicates that he would have remanded the rule, so that the Agency could properly take costs into account.
Best of all, he provides a roadmap to getting the Supreme Court to review the split decision in White Stallion Energy Center LLC et al. v. EPA et al.. The Supreme Court rarely grants review, but the key criterion they consider in deliberating whether to take up a case is whether it conflicts with either a different appeals court or a previous Supreme Court decision. As Kavanaugh aptly explains, the majority opinion’s reasoning—that costs do not have to be accounted for—rested on a Supreme Court decision in Whitman v. American Trucking Association, 531 U.S. 457 (known in legal circles as “ATA II,” FWIW). He writes,
“But I respectfully believe the majority opinion is misreading—or at least over-reading—Whitman.”
I’ll save the details for a subsequent post; suffice it to say for the purposes of this post, in the quote above, a federal circuit court judge helpfully is explaining how the majority decision directly conflicts with Supreme Court precedent, and, therefore, warrants review. This is immensely helpful for the purposes of obtaining cert.