In the last announced decision of its term, the U.S. Supreme Court today, by a 5-4 vote and an opinion by Justice Antonin Scalia, struck down the Environmental Protection Agency's carefully crafted rules to limit the emission of mercury and other toxic pollutants from oil and coal power plants.
Justice Scalia concluded that the EPA failed to meet its duty to consider the financial costs of the regulations. But as Justice Elana Kagan documented in her dissent for four justices, Scalia failed to acknowledge that the agency did in fact repeatedly consider costs, and he essentially substituted five justices' expertise for that of the agency, in violation of long-standing precedents. Kagan noted that the EPA found that benefits of the rule included 11,000 fewer premature deaths per year, along with many more avoided illnesses.
A brief filed by a group of nonprofit organizations that intervened in the case -- including the American Academy of Pediatrics, the American Lung Association, the NAACP, the Natural Resources Defense Council, and the Sierra Club -- pointed to EPA findings that the power plants at issue "remain huge emitters of numerous congressionally designated toxics, including ones that cause permanent neurological impairment, birth defects, and cancer." Meanwhile, even a group of utility companies had argued that the rules were "economically practicable and have already been achieved by a large portion of the power sector"; the companies told the Court that they and others had "invested billions in installing emissions controls and developing state-of-the-art, highly efficient, low- or zero-emissions electric generation units. Yet, until the Rule takes effect, such plants will continue to be competitively disadvantaged relative to old, high-emitting facilities that do not bear the cost of controlling emissions of hazardous air pollutants, thereby discouraging further investments to modernize the Nation's generation fleet."
But the five-justice majority ignored all these considerations and threw out the entire regulation.
The lead lawyer urging the Court to overturn this important public safety rule was Michigan Solicitor General Aaron Lindstrom, representing a group of conservative-dominated states. But many private lawyers were paid by coal, oil, and gas interests to block the rule. Who are they?
- Peter S. Glaser and his law firm Troutman Sanders represented the National Mining Association, a coal and mining industry lobby group. Glaser, a long-time litigator on behalf of energy interests, also has represented the conservative Washington Legal Foundation and made a presentation to the corporate group the American Legislative Exchange Council in which he "encouraged state lawmakers and industry members to engage in 'guerrilla warfare' against EPA to weaken carbon-pollution standards on power plants." Glaser is also listed as a legal expert on the website of the conservative Federalist Society. Glaser recently explained that he came to Washington as a Democrat determined to fight poverty: "I was actually a community organizer, just like Barack Obama. We sort of went in different directions over the years." According to Glaser, he is still fighting for social justice, as the Obama EPA regulations "are not really in the best interest of the working class or poor people" because they could raise utility prices.
- Another Federalist Society-endorsed expert who asked the Court to dump the power plant rule is F. William Brownell of Hunton & Williams. Brownell represented the Utility Air Regulatory Group, which is a confusing name for another energy industry trade operation. Brownell makes his living not only fighting in D.C. against EPA rules but defending energy companies against suits by people claiming they are harmed by greenhouse gases, such as in the evocatively titled case Native Village of Kivalina v. ExxonMobil Corp.
- David B. Rivkin Jr. of Baker & Hostetler represented the libertarian Cato Institute, which in turn has received millions from energy interests including the David H. Koch Foundation and ExxonMobil. Rivkin worked in the Reagan Justice Department and was the associate general counsel at the Department of Energy under George H. W. Bush. More recently, he has been part of the legal effort to strike down Obamacare and also has defeated lawsuits aimed at holding former Secretary of Defense Donald Rumsfeld personally liable for alleged torture in Iraq.
- Sandra P. Franco of Morgan Lewis & Bockius, representing the U.S. Chamber of Commerce, and J. Van Carson of Squire Patton Boggs, representing the coal company Murray Energy, also filed briefs against the Obama regulations.
- Last but certainly not least, the troubled Peabody Energy company, also urging that the rules be struck down, was represented by eminent liberal Harvard Law professor Laurence H. Tribe, along with his long-time colleague Jonathan S. Massey, as well as Tristan L. Duncan of Shook, Hardy, and Bacon, a firm known for its ethically questionable work representing most of the big tobacco companies in their deceptive heyday. (Chief Justice John Roberts, who joined the Scalia majority in favor of the coal companies, once represented Peabody in a Supreme Court case over worker retirement benefits.) Tribe is the leading legal scholar of his generation, and he was Barack Obama's law school mentor and served in the Obama Justice Department. Years ago, I had the good fortune to work closely with both Tribe and Massey, and I know them to be exceptional lawyers and very fine people who have played a critical role in the advancement of justice in many areas of the law. I just don't know why they want to be in the company of this crew, working to stop Obama environmental rules that would enhance public safety and help move us toward a cleaner energy future.
This piece also appears on Republic Report.