The following editorial appeared in the Charleston (West Virginia) Daily Mail on July 1:
The Supreme Court’s decision earlier this week that the Environmental Protection Agency did not properly consider economic costs in its Mercury and Air Toxic Standards rule is rightly being hailed as a needed rebuke to an out-of-control administrative agency.
The MATS rule, requiring coal-burning power plants to reduce emissions of substances like mercury, lead and arsenic, is one of the most expensive EPA regulations ever produced.
The Supreme Court held that the agency should have taken the rule’s $6.9 billion in annual compliance costs into account in determining whether the rule was “appropriate and necessary.”
That massive cost dwarfed the rule’s actual benefits, which the agency said were only $4 million to $6 million.
“It is unreasonable,” wrote Justice Antonin Scalia for the court, “to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore cost.”
But this decision comes too late for the power plants that have already been shut down and the jobs that have been lost due to a now-discredited rule.
The EPA boasted after Monday’s decision that 70 percent of the coal industry has already complied with MATS. The industry had no choice but to accept the rule’s legality — and to assume all the cost burdens it imposed — while the rule made its tortuous three-year trip through the federal court system.
In that sense, the biggest lesson from this case is that the EPA must not be allowed to continue its strategy of “regulation by inertia” — proposing legally dubious regulations and betting that even if they’re struck down years later, industry will be cowed into complying in the meantime.
Under that strategy, even when EPA loses on the law, it wins in substance. And each time that happens, the agency is emboldened to try ever more aggressive and contorted legal theories to transform the nation’s economy without legislative oversight.
When the legality of rules is questionable and challenges have a good chance of prevailing, judges should halt enforcement of the rules until they’ve been reviewed by courts and determined to be legal exercises of EPA’s authority.
The Supreme Court’s MATS decision was an important, though tardy, correction to a bad regulation. Unfortunately, it will take an even firmer judicial approach to re-direct the agency from its current misguided path.