To critics of the Obama administration's aggressive use of regulatory power, today's 5-4 high court ruling against the EPA in Michigan v. EPA might sound like a good thing. But the administrator of the EPA is sure she has the last laugh.
As The Hill reports, the case:
centers on the EPA’s first limits on mercury, arsenic and acid gases emitted by coal-fired power plants, known as mercury and air toxics (MATS). Opponents, including the National Federation of Independent Business, say it's among the costliest regulations ever issued.
The challenge is important because it's potentially the first of a few challenges the high court will hear regarding the EPA's rulemaking, interpretation, and enforcement of the Clean Air Act, a law first signed by Lyndon Johnson in 1963.
In interpreting a section of the Clean Air Act that gives the EPA some authority to determine whether power plants are "source categories" subject to National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations, the court ruled that the "EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants."
The EPA loses, right? Not necessarily.
The Hill also reports an exchange EPA chief Gina McCarthy had on HBO with Bill Maher on his weekly show Real Time With Bill Maher:
“This is a rule that actually regulates toxic pollution emissions from primarily coal facilities, and we think we’re going to win because we did a great job on it,” she said.
Of course we now know they lost. But then there's this:
“But even if we don’t, it was three years ago. Most of them are already in compliance, investments have been made, and we’ll catch up. And we’re still going to get at the toxic pollution from these facilities,” she continued.
Republicans have long critized the costs of regulations as a hidden tax on business owners, employees, investors, and consumers. They're not wrong that regulations can indeed be costly, but perhaps they're focusing on the wrong aspect of the cost.
Now with the regulations effectively stopped by the court, lots of power companies and cooperatives are left holding the bag -- expensive emission control equipment -- that no regulation requires them to fully use.
As the second term of the Obama administration winds down, look for this story to repeat itself. After all, if you can't regulate an upopular company or industry out of business overnight, all you need are regulations, lawyers, and a few years.
Even if you lose, you win.