Supreme Opportunity for a Supreme Correction

In 2007, the Supreme Court ruled that EPA had authority under the Clean Air Act to regulate CO2 as a pollutant.  It reached that conclusion even though Congress in the 1990 Amendments explicitly denied EPA that regulatory authority.  The Court also ignored the scientific facts that CO2 is a nutrient, has been much higher in our geological history, and that safe levels for US submarines is more than an order of magnitude higher than today’s level of 400 parts per million.

The Supreme Court now has a chance to reign in EPA’s excessive use of the authority that it granted in 2007.  Yesterday, the Court heard arguments in the case involving EPA’s mercury and air toxics rule.  Several of the Justices were struck by the fact that the annual cost of the rule is $9 billion while the direct benefits are $6 million.  Think of that, the costs are 1500 times greater than the benefits and may in fact be much greater than that.  Nothing speaks more clearly to EPA’s zealotry than that ratio.  Why would the agency propose such an extreme action?  It is clear that the agency has declared war on coal and is using air toxics regulation as a means to force reductions in CO2 emissions.

EPA alleges that mercury from coal burning plants is deposited in the ocean where it ultimately ends up in fish consumed by human beings, especially women between 16 and 49.  That assertion rests on a very weak foundation.  According to the 2011 Almanac of Environmental trends mercury emissions have been reduced by 60% since 1990 and the CDC reference dose, which includes a margin of safety, is higher than the sampled blood levels for women of child bearing age.  Clearly, mercury is currently being reduced by existing regulations.  So, why does EPA believe that an even more stringent regulation is needed?

The answer lies in the fact that to justify its regulation EPA had to include so-called co-benefits which are all the other air quality benefits that it claims will be realized.  These alleged benefits are statistical calculations.  Anne Smith of NERA Economic Consulting in an analysis of the rule concluded, “almost all of the projected 11,000 premature deaths averted are in areas already in attainment with the EPA’s National Ambient Air Quality Standard (NAAQS) for PM2.5”.  NAAQS are set to protect public health with an adequate margin of safety.  Smith also observed that EPA attributed most of the estimated co-benefits to reductions below the lowest exposure associated with mortality risk in any epidemiological study.  Epidemiology studies are crude measures that have validity when the calculated risks are greater than 2.

Last year, a former EPA modeler, Robert Capara, wrote an article in the Wall Street Journal explaining how EPA is able to get large benefits for its rules.  He wrote, “I realized that my work for the EPA wasn’t that of a scientist, at least in the popular imagination of what a scientist does.  It was more like that of a lawyer.  My job, as a modeler, was to build the best case for my client’s position.”  That describes how this EPA pursues its agenda.

In addition to the serious flaws in the proposed rule, there is the simple fact that in 2012 the Supreme Court ruled “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, [in sections 108 or 110], or the ‘hazardous air pollutants’ program, [in section 112].”  So, the Court only has to look at this prior decision to give EPA a well deserved rebuke.


This article appeared on the FuelFix weblog at

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