Should Costs Matter in EPA Rule-Making???

As one who is unwavering in his support for strong regulations protecting the environment, there are times when I’m confounded by the agencies engaged in rule-making.  Take for example EPA’s proposed Mercury and Air Toxics (MATS) regulation, estimated to cost $9.6B per year, which the Supreme Court struck down last June.  New developments suggest the agency may nonetheless be moving forward with the regulation.  I link to Susan Dudley’s recent article in Forbes this past week titled EPA Ploughs Ahead With $9.6 Billion Mercury Rule, Despite Supreme Court’s Concerns. Dudley writes

The Environmental Protection Agency is going through the motions of responding to a Supreme Court order requiring it to consider whether a $9.6 billion annual increase in Americans’ electric bills is “appropriate and necessary” to reduce emissions of hazardous air pollutants. In a perfunctory 18-page notice, EPA proposes to conclude that even after considering costs, its regulations of electric generating units should stand. EPA reaches this conclusion by narrowly defining costs, making generous assumptions about the country’s ability to bear those costs and diverting attention away from the small risk reductions expected.

The Supreme Court Directed EPA to Consider Mercury Rule’s Costs

In June, the Supreme Court concluded that, by ignoring the costs of its Mercury and Air Toxics (MATS) regulation, EPA had violated its statutory authority to regulate when “appropriate and necessary.” Noting that EPA estimated the costs of the rule at $9.6 billion per year, and the benefits from reducing hazardous air pollutants (HAP) at between $4 million and $6 million per year, the majority observed[o]ne would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”  Finish Reading . . .

Justice Scalia wrote the 2015 majority opinion that can be found here, while Justice Thomas wrote a concurring opinion, including the following, that excoriates the Court on the increasing deference to agencies:

Perhaps there is some unique historical justification for deferring to federal agencies . . .  but these cases reveal how paltry an effort we have made to understand it or to confine ourselves to its boundaries.  Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here.  [A]s in other areas of our jurisprudence concerning administrative agencies . . . we seem to be straying further and further from the Constitution without so much as pausing to ask why.  We should stop to consider that document before blithely giving the force of law to any other agency “interpretations” of federal statutes.

While reasonable minds can disagree on the appropriateness of new regulations, where the costs are completely out of whack to the benefits (that’s technical jargon!) or the regulations stray far afield from their proper and legal course, scrapping the rule and starting over is often the best and only recourse.