Former Justice Stevens calls mercury ruling ‘mind-boggling’

Source: Jeremy P. Jacobs, E&E reporter • Posted: Monday, August 10, 2015

Former Supreme Court Justice John Paul Stevens, the author of a seminal decision on when courts must defer to agencies, said the high court’s decision this year to invalidate U.S. EPA’s air standards for mercury and other toxics was “truly mind-boggling.”

In June, the court ruled that EPA should have considered costs in determining whether it was “appropriate and necessary” to promulgate its mercury and air toxics standards, or MATS.

More than 20 Republican-led states and various industry groups challenged the 2011 rules, and the court’s conservative wing — in a 5-4 decision — held that EPA should have read the “appropriate” to include the rule’s $9.6 billion price tag (Greenwire, June 29).

Stevens, speaking at an American Bar Association meeting on litigation in Chicago at the end of last month, called the decision, written by Justice Antonin Scalia, a “truly remarkable departure from the majority’s love affair with dictionary definitions as the primary guide to determining the meaning of statutes.”

Appointed by Republican President Ford to the Supreme Court in 1975, Stevens was considered a member of the court’s liberal wing when he retired from the bench in 2010.

In 1984, he wrote the majority opinion in Chevron v. Natural Resources Defense Council, which held that if a law is ambiguous, courts must defer to an agency’s interpretation as long as it is reasonable.

He said the court’s decision in the mercury case was a stark departure from that precedent.

Stevens noted that the “appropriate” finding was only the first phase of the regulation. After making that determination, EPA then considered costs in setting the relevant emission control standards, which the agency estimated would save 11,000 premature deaths.

The former justice said that instead of “simply accepting the plain meaning” of appropriate and necessary, or deferring to EPA’s “reasonable” reading, the court invalidated the regulations.

“The decision rested squarely on the majority’s conclusion that the agency has misinterpreted the words ‘necessary and appropriate,'” Stevens said, “As a former English major in college, and as the author of the majority opinion in Chevron, I find that conclusion truly mind-boggling.”

Stevens concluded that the decision’s reasoning is troubling.

“Such a free-wheeling statutory decision can do even more harm — both to the public health and to the court itself,” he said, “than misinterpretations of the Constitution.”