You don’t often find anything amusing about Supreme Court decisions. They are usually laced with stuffy legal language on prior court decisions and how it applies to a case, but every once in a while you can get a good laugh. And that is the case in the June 29, 2015 Supreme Court decision on Michigan et al. versus the Environmental Protection Agency (EPA). You may recall that this case is a result of a bunch of state governments and industry groups suing the EPA over the Mercury Air Toxics Standards Regulations issued back in February of 2012.

The regulations basically imposed pollution controls on power plants to reduce mercury emissions. The lawsuit was over the fact that the EPA didn’t consider the costs of health and environmental benefits achieved by the regulation versus the cost to industry for complying with the regulation. The cost of the regulation to industry was estimated at $9.6 billion a year. The EPA only conducted a partial cost benefit for reduction of mercury that established a yearly benefit of $4 to 6 million a year. Additional benefits for reduction of sulfur dioxide and particulates would occur as a result of the pollution controls and those were estimated to be $39 to 90 billion a year. But the EPA didn’t use those figures or any others in determining under their Clean Air Act authority that they should regulate power plant mercury emissions.

In deciding the case, the Supreme Court looked at the Clean Air Act which says: the EPA must conclude “regulation is appropriate and necessary” after studying hazards to public health posed by power plant emissions. The Court found that the agency considered regulation “appropriate” because mercury poses a risk to health and the environment and because pollution controls exist to reduce mercury. The agency also found the regulations “necessary” because other Clean Air Act regulations did not eliminate the risk of mercury. The Court held that the EPA interpreted the Clean Air Act unreasonably when it deemed cost irrelevant to the decision to regulate, because the Clean Air Act specifically required power plants to be treated differently from other sources (other sources don’t require a cost benefit analysis to regulate). The Clean Air Act specifically required a cost study for the regulation of power plants.

The Supreme Court decided that the EPA must consider cost, including the cost of compliance, before deciding whether the Mercury Air Toxics Standards Regulation is appropriate and necessary. But the Court said it is up to EPA to decide how to account for cost.

Good grief! All this decision does is “kick the can down the road.” Now the EPA must go back and do the full calculations of the regulations benefits. EPA even stated in the regulations that their calculation of $4 to $6 million was only a partial cost analysis based on IQ loss of recreational fishermen who caught and ate mercury contaminated fish. EPA acknowledged that this was a small subset of the overall benefits of reducing mercury. Now the EPA will have to engage in a much longer and more expensive cost analysis. The analysis will have to show the economic benefits to not only human health but the environment as well. That includes impacts to wildlife like ospreys and eagle, minks and otters, and the many other animals that eat a lot of fish. They will have to look at reproductive and other impacts to the fish themselves. EPA will also have to look at subsistence populations who regularly eat fish and to the population at large who are eating fish from mercury impacted waters. And will the decision to regulate based on the cost benefit study change? I doubt it. If you start looking at impacts to wildlife and fisheries including reduction of recreational uses of streams with consequent losses to local economies and impacts to the fishing industry, well you are going to get an enormous figure. Add on top of that the cost of the side health benefit for the easier to calculate reductions in sulfur dioxide and particulates and I would expect the annual benefits to be in maybe the trillion dollar range.

I thought to myself, surely these state governments and industry groups thought about this in advance before they took this case all the way to the Supreme Court. Of course this is all handled by the lawyers and they may not know much about the cost calculation of damages to health and the environment, but they have scientists on staff who should be very well aware. That’s when I started laughing. Of course they must have known. Maybe all they were doing in taking this case to court was fishing for a delay in implementation of the regulations.