WSJ Overruled By Supreme Court On Clean Air Laws

But Doubles Down On Claim That EPA Is Legally "Unchained"

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WSJ Live April 30

The Wall Street Journal editorial board is continuing to pretend that the EPA is acting against the law by regulating coal pollution, despite repeated Supreme Court rulings that conclude otherwise.

On April 29, the Supreme Court ruledin a 6-2 decisionto re-instate the EPA's Cross-State Air Pollution Rule, which regulates air pollution that crosses state lines and "significantly" prevents neighboring states from achieving national air quality standards. The rule, which is part of the Clean Air Act by way of the "Good Neighbor Provision," was delayed in 2011 for further review after being challenged by a major coal-fired operator -- to the delight of the Wall Street Journal, which lauded the decision to delay for showing "how out of bounds the cross-state regulation is." The board decided that the Supreme Court "should overturn [the Cross-State pollution rule] for violating the federalist intentions of Congress," adding it would "to show this increasingly rogue agency that it can't rewrite the law as it pleases."

Now that the rule has been reinstated (counter to the wishes of the Journal) in EPA v. EME Homer City Generation, the paper is scrambling to find wrongdoing. The board published an editorial titled "The EPA Unchained" recycling its own faulty arguments that concluded with the fear that "the Obama EPA will feel even less bound by legal restraints, if that's possible." Its claims, however, are extremely misguided.

The regulations of smog and soot pollution will yield up to $280 billion in health benefits nationwide by preventing hospital visits and avoiding lost work days, according to the EPA's cost-benefit analysis. The human benefits are just as stark, with The American Thoracic Society estimating the new transfer rule could prevent upwards of 40,000 premature deaths annually. 

The WSJ summarily dismisses the court's defense of the EPA's use of cost-benefit analysis when considering the best regulatory action, calling it "ironi[c]" because "the EPA typically dismisses cost-benefit analysis unless a statute explicitly calls for it." However, according to an amicus brief from NYU's Institute for Policy Integrity, the EPA has been using cost-benefit analyses to guide inter-state air pollution regulations for decades. The "Good Neighbor Provision," for instance, does not explicitly call for cost-benefit analysis. The Court deferred to the EPA as the most appropriate body to determine whether or not to use cost-benefit analysis to regulate pollutants that are clearly covered by the Clean Air Act.

The board also repeated its tired claim that the EPA is "ignor[ing] the federalist obligations of the Clean Air Act," suggesting the EPA is going over the heads of individual states. But states have tried and failed at coming up with their own solutions to this interstate phenomenon, and Congress and the Supreme Court determined that the issue of cross-state pollution is an inherently nationwide problem that prompts federal regulation. As Justice Ruth Bader Ginsburg outlined in her majority opinion for the Court, the air pollution of "upwind" states is inescapably a "combined and cumulative effect" that may significantly pollute several "downwind" states at different proportions, so regulating emissions based on each individual state's pollution levels (as WSJ suggests) simply doesn't work. This was not only the conclusion of the EPA, but also of leading atmospheric scientists and air quality modeling experts, who submitted an amicus brief arguing that the WSJ's preferred solution was likely "impossible." The complexity of the scenario is illustrated by this EPA graphic showing "linkages" between "upwind" and "downwind" states in what they have called a "spaghetti-like matrix":

EPA cross-state pollution map

The revival of the cross-state pollution rule was timely -- one day after the Court's ruling, the American Lung Association (ALA) released the findings that nearly half of Americans currently live in areas with high levels of pollution from smog and soot particles. The ALA report also illustrates the necessity of the EPA air pollution rules: 18 of the 25 cities with the highest pollution rates have seen a drop in pollutants, partly thanks to the EPA regulations.

The Supreme Court has repeatedly ruled on the side of the EPA, despite WSJ's constant criticisms -- two weeks prior, the Court upheld a separate EPA rule to cut mercury emissions from coal plants. Will the newspaper continue to claim that coal pollution regulations are unlawful?

Posted In
Environment & Science, Climate Change, Energy
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The Wall Street Journal
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