The Patriot Post, May 2, 2014It’s never a surprise when the four leftist Supreme Court justices give the Environmental Protection Agency (EPA) more power, but this week’s 6-2 ruling reinstating the Cross-State Air Pollution Rule also had the support of Chief Justice John Roberts and Justice Anthony Kennedy. It seems that Roberts is now a swing voter, meaning conservatives have to go 2-for-2 between him and Kennedy.
The case, EPA v. EME Homer City Generation, hinged on whether the EPA could implement new regulations on power plants without giving the states an opportunity to write their own rules and without regard to any individual state’s contribution to the problem. The Second Circuit Court struck down the regulations in 2012, a decision reversed by this week’s Supreme Court ruling. Affected are 28 states east of the Rocky Mountains but excluding the Dakotas, the New England states and Delaware.
Needless to say, energy producers were dismayed by the ruling, which gave the EPA even more power to enforce the Clean Air Act through ever-sprawling regulations. As many as 1,000 power plants may be hit with either expensive alterations to update pollution controls or shuttering altogether. For example, Texas-based Luminant announced it would have to shut down two of its coal-fired plants and spend up to $1.5 billion on pollution-control equipment for two other plants. Certainly compliance costs for these regulations will have to be passed along to consumers somehow, even if state regulators don’t allow rate increases to cover these bills.
Dissent from Justice Antonin Scalia was pointed and right on target. “Today’s decision feeds the uncontrolled growth of the administrative state at the expense of government by the people,” he wrote, adding, “Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority.” At the root of his objection was a contention that, even if the EPA’s regulations were more cost-effective overall, the same may not be true for each state. Joining him in dissenting was Justice Clarence Thomas, while Justice Samuel Alito was recused.
With another recent ruling favoring the EPA’s bid to further regulate emissions of mercury, Barack Obama’s 2008 campaign promise that “electricity rates would necessarily skyrocket” under his policies seems to be a rare instance when he uttered the truth.