Chief Justice John G. Roberts, Jr., on Thursday morning allowed the government to keep in effect its rule designed to curb air pollution with mercury and other toxic substances from the smokestacks of power plants. In a simple order that gave no explanation, and acting without referring the issue to the full Court, the Chief Justice rejected the plea of twenty states to block enforcement while the Environmental Protection Agency continues a study of the cost of the rule to the electric-generating industry.
Last Term, in the case of Michigan v. EPA, the Court ruled that EPA could not impose that rule on the industry until it had first taken into account what that would cost. That, the divided decision said, is a necessary part of any finding that regulation of power plant pollution was “appropriate and necessary” under the federal Clean Air Act. The twenty states, in their new application, argued that last Term’s decision meant that EPA would have no authority to keep the rule intact until it completed the cost analysis (which EPA has told the Court would be completed by April 15, if possible).
Last December, the U.S. Court of Appeals for the District of Columbia Circuit had ruled that EPA need not stop enforcement while the new cost review goes forward. It sent the case back to the agency to work on that. The twenty states opposed to the rule then took their complaint on to the Supreme Court.
Under the rules of the Court, the states could take their request for delay to another member of the Court, but that maneuver seldom is successful. To head off just such a maneuver, individual Justices these days routinely share a stay application with their colleagues. It was Roberts’s option whether to do that, and he chose not to do so.
The states said they wanted the mercury rule put on hold while they pursue a full appeal to the Justices, an appeal that would question the authority of a federal appeals court to return a case to a federal agency without postponing the underlying agency action, when that action has been ruled illegal by the Supreme Court.
EPA had argued both in lower courts and in the Supreme Court that the health hazards of suspending the rule would continue to exist, and, in any event, it was well along in its consideration of the costs question and would be able to wind that up in a matter of a few weeks.
The agency adopted the mercury rule in 2012, setting up a regime under which power-generating plants would have to meet specific air quality standards. The industry, supported by state governments, argued that the costs of carrying out the rule’s standards would far outweigh any benefit to public health or safety.
By simply denying a stay request, the Chief Justice took no position on how the EPA’s rule would fare after the cost study is finished.