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Court to rule on disability rights, mercury pollution

The Supreme Court, in a pre-holiday Conference, agreed on Tuesday to rule during the current Term on the authority of police when they attempt to deal with a mentally disturbed person who is armed and violent, and on the Environmental Protection Agency’s authority to regulate mercury pollution from electric power plants.   Hearings on the cases are likely to be held in March.

The police case (San Francisco v. Sheehan) raises the core question of whether the federal Americans with Disabilities Act limits the arresting power of police officers when they seek to subdue a person they know to be mentally disabled.   Justice Stephen G. Breyer is not taking part in the case, apparently because his brother, U.S. District Judge Charles R. Breyer, ruled on the case at an earlier stage.

The city-county government of San Francisco, along with two local police officers, pursued the appeal in that case, challenging a ruling by the U.S. Court of Appeals for the Ninth Circuit requiring police to provide some accommodation for a mentally disabled person whom they are trying to take into custody.

The EPA case, a dispute with a multi-billion-dollar impact on the electric-power-generating industry, will keep up the recent pattern of the Justices’ willingness to hear challenges to that agency’s regulatory actions.   The Court accepted three new petitions, but consolidated them for one hour of argument and for decision.  The cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA, and National Mining Association v. EPA.

In granting review, the Court rewrote the question it will answer: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”

The Court did that for two apparent reasons: first, because, the petitions had phrased the cost question in slightly different ways, so the Court wanted a clear statement of what it will be reviewing; and, second, to make it clear that it was not going to review the Utility Air Regulatory Group’s separate claim that the EPA only had authority to regulate power plants’ emissions on a pollutant-by-pollutant basis, instead of writing standards for all pollutants emitted by such sources.

Although the electricity generating plants, fueled by coal and oil, are subject to regulation as are most industries under the federal Clean Air Act, Congress has told EPA also to consider a separate regulatory regime for those facilities if it concludes that its oversight is “appropriate and necessary.”

EPA has been working on that mandate since 2000, when it finished a study of those plants’ pollution emissions.  It decided to go ahead, concluding that mercury emitted from those facilities was likely to cause serious threats to human health, as well as to the environment.  At one point, during the President George W. Bush Administration, EPA changed its mind and sought to back off from regulation, but that option was overturned by the U.S. Court of Appeals for the District of Columbia Circuit in 2008.

EPA returned to the task and again concluded that it should move forward.  However, EPA decided that, in the initial phase, when it was deciding only whether to regulate those plants’ emissions, it should not and would not take into account the cost to the facilities of complying.  It would take that into account later, when it actually issued specific pollution standards.

That decision was challenged unsuccessfully in the D.C. Circuit Court, leading twenty-one states, the trade group for the power plants, and the trade group for the suppliers of coal to those plants to take the case on to the Supreme Court.  The Justices granted all three petitions, on the common question of regulating cost at the outset of EPA’s judgment about what was “appropriate and necessary” in addressing power plant emissions.

Recommended Citation: Lyle Denniston, Court to rule on disability rights, mercury pollution, SCOTUSblog (Nov. 25, 2014, 1:39 PM),