Prof. Lazarus Assesses Recent Supreme Court Ruling

Following the Supreme Court’s decision in Michigan v. EPA, what are the prospects for the EPA Mercury Rule? Perhaps even more significantly, what are the implications of that decision for the EPA as it defends the Clean Power Plan? Prof. Richard Lazarus addresses these questions in a column for the Environmental Law Institute’s Environmental Forum.

In Michigan, the Supreme Court remanded the Clean Air Act Mercury Rule to the agency for failing to consider cost in the threshold determination of whether regulation of certain hazardous air pollutants from power plants was “appropriate.”

Prof. Lazarus looks ahead to the EPA’s challenges in defending the Mercury Rule in the D.C. Circuit. The agency will have to convince the court not to vacate the rule while the agency corrects it, which Prof. Lazarus expects will turn on whether the court finds it appropriate to take the “ancillary benefits” of the Mercury Rule into account.

Prof. Lazarus also considers the implications of this ruling for the Clean Power Plan, which regulates emissions from existing power plants. Prof. Lazarus explained, “EPA’s defense of the Clean Power Plan will turn on judicial acceptance of expansive interpretations of the agency’s statutory authority under existing provisions of the Clean Air Act. The Michigan opinion, by contrast, like the Court’s decision last term in Utility Air Regulatory Group v. EPA, can be read as reflecting some heightened judicial skepticism of EPA and its tendency to overreach.”

Read the full column here: Richard Lazarus, “Did EPA Stray from ‘Appropriate’?” ELI Forum, September/October 2015.

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