Chief Justice Rejects Effort to Block E.P.A. Limit on Power Plants

Source: By ADAM LIPTAK and CORAL DAVENPORT, New York Times • Posted: Friday, March 4, 2016


Chief Justice John G. Roberts Jr. speaking at New York University in November. CreditRichard Perry/The New York Times 

WASHINGTON — In a significant victory for the Obama administration, Chief Justice John G. Roberts Jr. on Thursday refused to block an Environmental Protection Agency regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants.

The decision comes three weeks after the full Supreme Court, in a highly unusual move, blocked another major Obama administration rule that would limit planet-warming greenhouse gas pollution from coal plants.

Opponents of Mr. Obama’s environmental policies were buoyed by the high court’s decision to halt the global warming rule, known as the Clean Power Plan, reading it as a sign that the court was willing to halt other regulations while they undergo changes and review. But legal experts said the chief justice’s decision on Thursday signaled that they might not be successful in further attempts to halt environmental rules while they are still subject to legal challenges.

“This is a pretty strong way of sending a signal that the fact that the court granted a stay of the Clean Power Plan was highly extraordinary, and they don’t want to be inundated with these,” said Jeffrey Holmstead, a lawyer with the firm Bracewell and a deputy administrator of the E.P.A. in the George W. Bush administration. “I think this is Justice Roberts’s effort to say that the Clean Power Plan is an extraordinary situation.”

The order was issued solely by Chief Justice Roberts, who did not refer the question to the full court.

Chief Justice Roberts rejected an application from 20 states that said a federal appeals court in Washington had effectively thwarted their victory in the Supreme Court in June, when the justices ruled that the E.P.A. had failed to take into account the punishing costs its mercury regulation would impose. In that 5-to-4 decision, Michigan v. Environmental Protection Agency, the Supreme Court ruled that the agency had run afoul of the Clean Air Act by deciding to regulate the emissions without first undertaking a cost-benefit analysis to show the regulation to be “appropriate and necessary.”

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia, who died last month, wrote in June. “Statutory context supports this reading.”

That earlier decision did not strike down the regulation, but it did require the E.P.A. to take costs into consideration. The question before the Supreme Court on Thursday was what should happen in the meantime.

In December, a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit allowed the mercury regulation to stay in place while the agency completed its review, noting that it “is on track to issue a final finding” by April 15.

In their Supreme Court brief, the states said blocking the mercury regulation “is even more warranted” than the halt to the climate change plan, because the Supreme Court had already decided that the agency had exceeded its authority.

The mercury regulation, the states said, “has imposed literally billions of dollars of compliance costs on utilities.”

But Mr. Holmstead and other experts noted that blocking the mercury rule would have had little practical impact, because most electric utilities have already put it into effect. Industry groups estimate that it has already led to the closing of about 100 coal-fired power plants. The E.P.A. has estimated that the rule will impose about $9.6 billion annually in costs to industry as they either clean up or close down coal plants.

Melissa Harrison, a spokeswoman for the E.P.A., said the administration was “very pleased” with Chief Justice Roberts’s decision.

The Obama administration has put forth nearly half a dozen major rules aimed at cutting coal pollution, and critics, who have called them a “war on coal,” have sought to block them in the courts.

But Thursday’s decision is an indication that Justice Scalia’s death has altered the balance of power on the Supreme Court.

The Supreme Court had voted, 5 to 4, on the climate change stay, issued Feb. 9. Justice Scalia was in the majority, and his vote in that case was one of the last he cast before he died.