How Antonin Scalia Could Undo a Key Part of Obama’s Green Legacy

The fate of a sweeping air-pollution regulations may be in the hands of the conservative justice.

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC.
National Journal
June 22, 2015, 4:10 p.m.

Ant­on­in Scalia could be on the verge of throw­ing a wrench in Pres­id­ent Obama’s en­vir­on­ment­al agenda.

The Su­preme Court is ex­pec­ted to hand down a ver­dict as early as Thursday in a leg­al chal­lenge to reg­u­la­tions curb­ing tox­ic air pol­lu­tion from the na­tion’s fleet of power plants. The En­vir­on­ment­al Pro­tec­tion Agency es­tim­ates that the reg­u­la­tion will pre­vent up to 11,000 pre­ma­ture deaths each year and gen­er­ate $90 bil­lion in pub­lic health be­ne­fits an­nu­ally.

But the fate of that policy—a ma­jor pil­lar of the White House push to cut down on Amer­ica’s air pol­lu­tion—may rest in the hands of one of the high court’s most con­ser­vat­ive justices.

Here’s why: When the Su­preme Court con­siders a batch of cases, the justices of­ten di­vide the work­load evenly so that each justice writes the ma­jor­ity opin­ion for one case. For a slate of cases ar­gued in March and early April, each of the nine justices—ex­cept Scalia—has penned a leg­al jus­ti­fic­a­tion. That means that if the Court fol­lows pre­ced­ent, Scalia will write the opin­ion in the last case—brought by a co­ali­tion of states led by Michigan and util­ity in­dustry chal­lengers that takes aim at EPA’s reg­u­la­tions on tox­ic air pol­lu­tion.

“None of this is etched in stone. But if you asked me to put money on it, I would guess Scalia is writ­ing the opin­ion,” said Ian Mill­hiser, a seni­or fel­low at the left-lean­ing think tank Cen­ter for Amer­ic­an Pro­gress.

If that hap­pens, Scalia could de­liv­er a ma­jor blow to Obama’s EPA. Scalia is no friend to the ad­min­is­tra­tion’s reg­u­lat­ory agenda, and he ap­peared to sym­path­ize with in­dustry chal­lengers fight­ing to roll back the reg­u­la­tions dur­ing or­al ar­gu­ments.

The ques­tion is wheth­er EPA vi­ol­ated the law when it de­cided to reg­u­late tox­ic air pol­lu­tion from power plants without first tak­ing in­to ac­count how much it would cost the in­dustry to com­ply. Chal­lengers ar­gue that the agency should have factored cost in­to that de­term­in­a­tion, while the agency main­tains that it was not re­quired to do so un­der the Clean Air Act.

If the Su­preme Court rules against the agency, a vari­ety of out­comes could un­fold. The court likely would com­pel EPA to ad­dress cost in its reg­u­lat­ory de­term­in­a­tion, an out­come that would cre­ate un­cer­tainty over the fate of the rule and po­ten­tially even delay its fi­nal­iz­a­tion un­til the pres­id­ent leaves of­fice.

“These things take time, and it’s already 2015. De­pend­ing on how the court rules, I don’t know that they could get it done dur­ing this ad­min­is­tra­tion,” said Justin Sav­age, a former Justice De­part­ment en­vir­on­ment­al law­yer and a part­ner with the law firm Hogan Lov­ells.

EPA has con­sist­ently main­tained that the agency is on firm leg­al ground with the reg­u­la­tion. But that doesn’t mean that sup­port­ers of the rule aren’t anxious.

A key part of EPA’s de­fense is that the law was si­lent on wheth­er the agency was re­quired to take cost in­to ac­count in de­cid­ing wheth­er to reg­u­late tox­ic air pol­lu­tion from power plants, and that when the law is si­lent, the agency gets to make the call.

Scalia pushed back against that idea dur­ing or­al ar­gu­ments. “I’m not even sure I agree with the premise that when …­­ Con­gress says noth­ing about cost, the agency is en­titled to dis­reg­ard cost,” Scalia said, adding: “I would think it’s clas­sic ar­bit­rary and ca­pri­cious agency ac­tion for an agency to com­mand something that is out­rageously ex­pens­ive and …­­ in which the ex­pense vastly ex­ceeds whatever pub­lic be­ne­fit can be …­ achieved.”

When news broke Monday that Justice Elena Kagan had penned the ma­jor­ity opin­ion in one of the last cases left stand­ing, it fueled spec­u­la­tion that Scalia could hold sway in the power-plant case. And that that could be bad news for the ad­min­is­tra­tion.

“If Scalia is writ­ing the opin­ion that would be the ma­jor­ity, I can’t ima­gine he would take the side of the EPA,” said Bri­an Potts, a law­yer who rep­res­ents util­it­ies at the law firm Fo­ley and Lard­ner.

To be sure, there is no man­date that Scalia will pen the ver­dict. An­oth­er justice could write the rul­ing. Even if Scalia is charged with shep­herd­ing the de­cision, the court still could rule in fa­vor of the ad­min­is­tra­tion. And even if the agency loses, the courts could man­date that the air tox­ics reg­u­la­tions re­main in place un­til the ad­min­is­tra­tion re­sponds to the Su­preme Court de­cision.

If the court sides with EPA, the tox­ic air pol­lu­tion reg­u­la­tions will stay on the books after tak­ing ef­fect in April.

“Ob­vi­ously, it would be a very ser­i­ous dis­ap­point­ment to lose this case,” said Sean Do­nahue, a coun­sel for the En­vir­on­ment­al De­fense Fund. “We shouldn’t lose this case and it seems like a pretty straight­for­ward call, but if something were to hap­pen to this rule it could have very sig­ni­fic­ant loc­al and pub­lic health im­pacts. There could be very ser­i­ous harm to people’s health.”

Ben Geman contributed to this article.
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