Today at the U.S. Supreme Court: Industry Tries to Shove a Cost-Shaped Peg Into a Benefit-Shaped Hole

When it comes to public safeguards, industry never wants to talk about keeping people healthy and protecting the environment; they’d much rather have a conversation about how safeguards will cut into their profits — the costs in the cost-benefit equation.  Even on matters where Congress, by statute, has made the discussion of regulatory costs legally irrelevant or a matter of only secondary importance, you can rest assured that industry will still be there talking exclusively about costs.  That is largely what is at issue in Michigan v. Environmental Protection Agency, which is being argued today before the U.S. Supreme Court—another attempt by polluting industries to inject discussions of costs where they don’t belong.

But, for the EPA’s rule to limit mercury and other toxic pollutants from fossil-fueled power plants, the subject of the case, perhaps the most critical issue is the regulatory benefits at stake, and how the fulfillment of those benefits has been on a circuitous journey that is now extending into its 25^th year. You read that right. It has been a quarter of a century since Congress first directed the EPA to issue this rule.  That’s when it passed the 1990 Clean Air Act Amendments.  As explained in a 2009 CPR white paper, the rule should have been completed by no later than 2000.  This ongoing delay has come at a huge price for the public health.  With every year that this rule has not been in effect, as many as 94,000 babies have been born in the United States with elevated blood mercury levels—levels high enough to leave them with irreversible brain damage—and as many as 231 children have suffered significant enough impairment of brain function to result in permanent mental retardation.

The fossil fuel industry no doubt wants to distract the public from contemplating the harmful health effects of its polluting activities; hence, it is trying to steer the conversation to regulatory costs in today’s case.  (The fact that these regulatory cost estimates are systematically overstated only provides them with further impetus on this score.)  It might be a useful PR move from their perspective, but it is not a legal requirement under the relevant provision of the 1990 Clean Air Act Amendments.  Let’s hope the Supreme Court will recognize this difference and reject industry’s abhorrent attempt to further delay this already long overdue safeguard for protecting our children’s health.