by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.
With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.
In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.
The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month. Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.
After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.