Michigan Attorney General Bill Schuette didn’t like the “no” answer Chief Justice John Roberts gave him earlier this month on his quest to allow utility companies to exhaust more mercury and other pollutants into the atmosphere.
Now, Schuette, in a March 18 petition for a writ of certiorari, has asked the entire U.S. Supreme Court to hear his appeal to block the EPA’s mercury and air toxics standards rule.
“When an agency promulgates a rule without any statutory authority, may a reviewing court leave the unlawful rule in place?” Schuette, who is leading a 20-state coalition to stop the EPA from enforcing its mercury rule, asked the court.
To hear Schuette’s appeal, four SCOTUS justices now must vote in favor of his position. With the recent death of Justice Antonin Scalia, the court now has eight members.
Just using basic math, if Roberts doesn’t change his opinion on the case, it appears Schuette has only three votes on the court from conservative-leaning justices.
Environmental groups and an opposing group of states have asked that Schuette drop the case for public health reasons. They also believe the EPA is well within its statutory authority to enforce its rule under the Clean Air Act.
But Schuette believes that because the Supreme Court last July — in a 5-4 vote with an opinion written by Scalia — found the EPA’s mercury rule illegal because it didn’t consider the costs to industry of implementing the rule, the court should also freeze the rule.
Instead, the SCOTUS decision sent the case back to the U.S. Court of Appeals for the District of Columbia for further consideration.
The D.C. Circuit Court, however, appears to be giving the EPA time to revise its rule. The EPA has said it will comply with SCOTUS and enumerate its belief that the benefits of the mercury rule justify its costs to the power plant industry.
In Michigan, officials for Consumers Energy Co. and DTE Energy Co. have already stated they are prepared to meet the EPA’s new rules. They already have spent millions installing pollution control equipment to comply.
Schuette apparently believes Justice Roberts and the D.C. Circuit Court are wrong and he is right.
“It is a fundamental principle of administrative law that agency actions taken without statutory authority must be vacated,” Schuette said in his petition.
Schuette is also involved in a court case to terminate the EPA’s Clean Power Plan, another EPA rule that the state’s utilities apparently feel they can easily meet.
While initially supporting the EPA’s Clean Power Plan, Michigan Gov. Rick Snyder has suspended action by the state to comply with the rule that aims to reduce carbon emission pollution, a necessary step to slow global warming.
States supporting Schuette are Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.
States that support the EPA’s mercury reduction rule include Massachusetts, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Rhode Island, Vermont and the District of Columbia.
Environmentalists say Schuette could challenge the rule again before the D.C. Circuit and then appeal to the Supreme Court later if he doesn’t like the answer.
Earlier this month, Howard Learner, executive director of the Environmental Law & Policy Center and a professor at theUniversity of Michigan, wrote Schuette and asked him to give up his legal quest. “In light of the lead contamination affecting the drinking water supply in Flint, Schuette ought to be sensitive to the importance of reducing mercury pollution that harms children’s health and our environment,” Learner wrote.
Last week, I listened to Snyder testify in Congress about Michigan’s poor initial response to lead in Flint’s drinking water. While he blamed himself and state government, he seemed to give equal blame to the EPA for not pushing Michigan hard enough to protect Flint’s drinking water supply.
It was a very unusual performance by Snyder, I thought. Blame me, but also blame them, he seemed to be saying. Republicans on the committee were more than happy to agree with Snyder and they strongly attacked EPA Administrator Gina McCarthy for not being more heavy handed.
I wonder what Snyder would say now that the EPA is pushing hard to clean up Michigan’s air from excessive mercury and carbon dioxide pollution?
Learner said Snyder should show leadership by calling on Schuette to withdraw his litigation against the EPA and its effort to improve air and water in Michigan and elsewhere. “It’s time for Michigan’s public officials to show that they’ve learned the lessons from the Flint contaminated water tragedy by taking responsive actions, not just more rhetoric,” Learner said.
Snyder should tell us whether he wants a strong EPA, as he suggested in the Congressional hearings, or does he want a weak EPA, as Schuette apparently does, when it comes to mercury pollution? At least Schuette is consistent. With Snyder, however, he can’t have it both ways. Or can he?