Crain’s Detroit Business: ELPC’s Learner Calls on Gov. Snyder to Tell his AG to Withdraw from Mercury Lawsuit

Schuette still trying to block EPA rules to lower mercury pollution into environment

by Jay Greene 

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?

ELPC’s Learner Talks with Midwest Energy News: Flint Shows Need to Stop Fighting EPA Pollution Rules

In the context of Flint, Michigan’s ongoing lead-tainted water crisis, regional environmental groups are calling on Michigan Attorney General Bill Schuette to stop his fight against federal rules for mercury emissions from power plants.

The Chicago-based Environmental Law and Policy Center sent a letter to Schuette on March 8, calling on him to stop challenging the U.S. Environmental Protection Agency’s Mercury and Air Toxics Standards in federal court.

Utilities across the country — including the two largest in Michigan, DTE Energy and Consumers Energy — are already moving to comply with the new rules, meaning a court decision to overturn them could have little practical impact.

The rules have reportedly led to the closing of about 100 coal plants nationwide. The EPA says the standards will prevent up to 410 premature deaths in Michigan and create up to $3.4 billion in health benefits this year.

“Why in the world — especially in light of the Flint water tragedy — is Attorney General Bill Schuette and Michigan leading the national litigation to stop or stall mercury pollution reduction standards?” Howard Learner, executive director of the ELPC, said in an interview with Midwest Energy News. “That is simply tone deaf to the reality of the circumstances when it comes to the need to reduce toxic pollution to protect children’s health and the environment.”

Schuette has maintained that the rules would be too costly. In a statement last month as he asked the U.S. Supreme Court to halt the rules, Schuette said: “For more than seven months since this Court’s decision in Michigan v. EPA, (the rule) has already caused irreparable harm. It has imposed literally billions of dollars of compliance costs on utilities, and by extension, all families who use electricity.”

Learner countered: “Now that Consumers Energy and DTE have already installed mercury pollution control equipment, any argument that Attorney General Bill Schuette is making that it would somehow save Michigan consumers money or impact jobs is looking backward rather than today’s reality.”

Learner went on to call Schuette’s challenge based on costs “penny wise and pound foolish,” similar to how Flint’s water supply was tainted by lead as part of an effort to save the city money.

He added that “the irony here” is that even if the mercury rules are overturned in the courts, DTE and Consumers would end up being at a “competitive disadvantage” with utilities in other states that perhaps hadn’t invested in pollution controls. And yet Michigan would still be subject to mercury pollution from those other states, Learner said.

The EPA adopted the mercury rules for coal plants in 2013. Shortly after, in Michigan vs. EPA, Schuette led 19 other states, utilities and coal companies to challenge the standards in federal court.

A federal circuit court upheld the standards in April 2014. After an appeal, the U.S. Supreme Court in June reversed the lower court’s ruling, saying narrowly that the EPA had to revisit the standards and give more consideration to costs. The Supreme Court, however, did not invalidate the rules.

The EPA is expected to issue a final rule by April 15. Schuette’s case is still pending in the U.S. Court of Appeals for the District of Columbia.

But following the U.S. Supreme Court’s surprise decision to stay the EPA’s Clean Power Plan, Schuette asked the High Court to essentially do the same for the mercury rules. Chief Justice John Roberts denied Schuette’s request on March 3.

“I have little doubt that when the EPA issues its final rule, some utilities and states will appeal those mercury pollution reduction standards,” Learner said. “It seems they’re appealing anything and everything the EPA is doing.”

Mercury is a neurotoxin that can impair fetal brain development and reduce a child’s IQ and ability to learn. Learner called the rules “sound regulation to avoid mercury contamination of the Great Lakes, inland lakes and rivers that results in the bioaccumulation of mercury in fish, which are eaten by people.”

The EPA estimates $3 to $9 in health benefits for every dollar spent on compliance.

Even if the EPA’s rules are invalidated, Michigan’s statewide mercury rules would take effect, Learner said.

Roberts’ March 3 decision to reject a stay — as well as the ongoing water problems in Flint — drove the ELPC to appeal to Schuette.

“We hope Attorney General Bill Schuette and Michigan public officials have learned the tragic lessons of the Flint poisoned water crisis,” Learner said. “This is the time to know when to hold them and know when to fold them and stop gambling with children’s health.”

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Public News Service: ELPC Asks Michigan Attorney General to Drop Pushback of Mercury Standards

By Mary Kuhlman, Public News Service

An environmental group and other concerned Michiganders are asking state Attorney General Bill Schuette to halt attempts to block regulations to reduce a known neurotoxin.

Despite the Supreme Court’s recent denial of requests by Michigan and other states to stay the Mercury and Air Toxics Standards, Schuette has not stopped efforts to restrict the measure. Howard Learner, president and executive director of the Environmental Law and Policy Center, said continuing litigation before the District of Columbia Court of Appeals is not in the best interest of the state and public health.

“Mercury’s a neurotoxin. It produces fetal brain damage, it slows the development of IQ and it hurts kids’ learning ability,” he said. “Mercury, once it’s in a pregnant woman’s bloodstream, passes through the placental barrier; it affects fetal brain development and it harms children.”

Schuette and other opponents have argued that the new rules are federal overreach and expensive for utilities to implement. But Learner says Consumers Energy and DTE already are set to comply with the standards with plans to install modern pollution-control equipment on coal plants. The final rule is expected by mid-April.

Learner said the push to block the mercury rules could hurt utilities in Michigan. The irony, he said, is that Shuette “is potentially continuing litigation that would reward utilities in other states that have not yet installed mercury-pollution control equipment and put them at a competitive advantage over Consumers Energy and DTE.”

Learner said the Michigan Department of Health and Human Services has acknowledged the threat posed by mercury contamination in the Great Lakes. In the wake of Flint’s water crisis, he said, more vigilance is needed in protecting public health.

He called on Shuette “to stand up for healthy kids and clean water, for our coal plants to reduce mercury pollution, and for us to move on and learn the lessons that have happened in the state for the last several months.”

According to initial assessments from the Environmental Protection Agency, the standards could result in between $37 billion and $90 billion in health and environmental benefits annually. That analysis is being updated by the agency.

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Midwest Energy News: ELPC to Focus on Issues Such as Mercury Pollution on ORSANCO Advisory Committee

Conservation and environmental groups will now have a formal seat at the table when regulators meet to review water quality issues and standards for the Ohio River – a status enjoyed by the power industry and other groups for years.

Last month the Ohio River Valley Water Sanitation Commission (ORSANCO) agreed to formation of the new Watershed Organizations Advisory Committee. The move was a response to a June 2015 petition from 17 groups.

Although the groups had been submitting comments and participating informally, formal status comes with a nonvoting seat at technical committee meetings, a closer opportunity to participate with various working committees, and an opportunity to report at ORSANCO’s board meetings.

“In the entire 68-year history of ORSANCO, there has never before been an official seat at the table for watershed and wildlife advocacy organizations,” noted Judy Petersen of the Kentucky Waterways Alliance, who chairs the new committee.

“We’re pleased to have the Watershed Organizations Advisory Committee established to help us in our development of Ohio River studies and policy,” said ORSANCO’s executive director, Richard Harrison. “We’re looking forward to working with them collaboratively to improve Ohio River water and quality.”

Mercury issues continue

The power industry’s advisory committee hasn’t focused on any single issue, Harrison noted, but has rather been involved with the wide range of issues that affect the river and its tributaries.

Nonetheless, various issues are particularly relevant to the energy industry, said Madeline Fleisher of the Environmental Law & Policy Center in Columbus, Ohio. That includes mercury pollution, which can originate from coal-burning power plants, as well as other sources.

Keep Reading

Greenwire: ELPC’s Learner Urges Michigan to Drop Fight Against EPA Mercury Rule

Michigan, the lead plaintiff in the lawsuit challenging U.S. EPA’s Mercury and Air Toxics Standards, should drop its appeal and withdraw from the case, a Midwestern advocacy group urged this week in a letter to the state’s attorney general.

Following U.S. Supreme Court Chief Justice John Roberts’ refusal last week to freeze the rule, “It is time for the litigation challenging these important standards to come to an end,” Howard Learner, executive director of the Chicago-based Environmental Law & Policy Center, told Attorney General Bill Schuette (R). The organization late yesterday released the letter dated Tuesday.

Among other factors arguing in favor of dropping the case, Learner wrote: Michigan’s two largest coal plant owners, DTE Energy Co. and Consumers Energy, are already installing pollution control equipment to comply with the standards, and the Michigan Department of Health and Human Services has recognized the public health threat of eating fish in which mercury has “bioaccumulated.”

In light of the lead contamination affecting the drinking water supply in Flint, Mich., Schuette “ought to be sensitive to the importance of reducing mercury pollution that harms children’s health and our environment,” Learner added in an interview this morning. A Schuette spokeswoman did not immediately reply to a request for comment.

The Environmental Law & Policy Center operates around the Midwest, with an office in Grand Rapids, Mich. Nineteen other states have joined Michigan in challenging the standards; Learner said his group may make similar appeals to Iowa and others in the region.

Keep Reading

Crain’s Detroit Business: Learner Says Lessons of Flint Should Be Clear for Michigan Leaders

Crain’s Detroit Business

By Jay Greene

I wrote a news story back in 2012 about how Michigan Attorney General Bill Schuette was leading an effort by 19 other states to block a tough new air pollution rule that would limit mercury emissions from power plants.

Schuette apparently is still leading that effort, despite Supreme Court Chief Justice John Roberts’ ruling on Thursday that shot down his request for an emergency stay to the mercury rule.

Back in 2012, Schuette said: “This new regulation is a federal overreach that threatens affordable electricity rates for Michigan job creators.”

Schuette was responding to tough new regulations on mercury emissions and other air toxins adopted in early 2012 by the U.S. Environmental Protection Agency.

The AG has yet to comment on the Supreme Court’s latest decision. When he does, I will post it here.

But Howard Learner, executive director of the Environmental Law & Policy Center and a professor at the University of Michigan law school, said he has written Schuette and asked him to give up his legal quest.

“The lessons of Flint should be clear for Michigan leaders. Mercury and lead poisons kids and jeopardizes their health. Why would the attorney general continue to lead the charge to stop the EPA” from limiting toxins, said Learner.

“This crusade didn’t make sense before, and much less now,” he said.

As far as I know, both DTE Energy Co. and Consumers Energy Co. have moved on and are not opposing that mercury rule. They are either taking steps to close a dozen coal-fired power plants or add emission control devices to remove mercury from smokestacks.

In fact, many of the 600 power plants in the nation are already in compliance. Many also are moving ahead with plans to comply with the EPA’s Clean Power Plan that would force power plants to reduce carbon emissions by 30 percent under 2005 levels. The Supreme Court recently put a hold on that rule as well.

It seems a little weird to me that utility companies appear to be ahead of some politicians and courts when it comes to some environmental protection rules.


Urgent Action Needed. Please call Senator Kirk’s Office on His Opposition to Climate Solutions

Today, Politico reported that Illinois Senator Mark Kirk says he will sponsor the extreme Congressional Review Act (CRA) resolution being promoted by Senate Majority Leader Mitch McConnell to stop the U.S. Environmental Protection Agency’s Clean Power Plan, which sets standards for Illinois and other states to flexibly reduce carbon pollution.

Politico quotes Senator Kirk as saying:  “With this rule applied, I don’t think we can keep a lot of people in Illinois happily employed.”

Illinois is an economic winner under the Clean Power Plan because of our state’s clean wind power, solar energy and energy efficiency resources, and nuclear plants.

Please call Senator Kirk’s office at (202) 224-2854 or (312) 886-3506 and ask him to oppose the CRA resolution that would stop the Clean Power Plan.

The CRA resolution is a highly controversial mechanism that has been only applied once in history and should not be used to attempt blocking the Clean Power Plan.

Senator Kirk previously expressed concerns about climate change problems and voted in favor of federal legislation to reduce carbon pollution. If the Politico story and quote are true, ELPC is very disappointed with Sen. Kirk’s flip-flop and his decision to sponsor the CRA resolution. We called his office today to express our concern and disappointment.

Please call Senator Kirk’s office at 202-224-2854 and (312) 886-3506 and ask him to oppose the CRA resolution that would stop the Clean Power Plan.

Tell Senator Kirk that you care about the environment and want Illinois to benefit from the jobs, economic development and cleaner air that the Clean Power Plan can deliver.

Thank you for helping.

Press Release: Environmental Groups Deliver Petitions to ORSANCO Calling for them to Uphold Mercury Anti-dumping Standards for Ohio River


Environmental Groups Deliver Petitions to ORSANCO Calling for them to Uphold Mercury Anti-Dumping Standards for Ohio River

Technical committee meets today to decide recommendations

Cincinnati, OHIO – A coalition of environmental groups will deliver close to 2,000 petitions today to a subcommittee of a multi-state commission urging members to recommend following through with new standards that forbid companies from dumping high levels of toxic mercury into the Ohio River. Mercury is a known neurotoxin that causes brain and nerve damage to children and developing fetuses.

Twelve years ago, the Ohio River Valley Water Sanitation Commission, known as ORSANCO, banned companies located along the Ohio River from releasing large amounts of mercury into the water through the use of mercury dilution zones. The ban on these “mixing zones” is scheduled to go into effect in October in order to improve the safety of fish consumption caught in the river and overall protection of public health. Dozens of coal plants and factories in Ohio, Kentucky, West Virginia and elsewhere haven’t yet complied with this long-planned ban and many are now asking the commission to create exceptions to that ban or eliminate it completely. ORSANCO, which oversees water pollution and abatement standards on the Ohio River, has said it’s considering their request.

Environmental groups have been collecting signed petitions urging ORSANCO to stick to its original ban set in place more than a decade ago – and already delayed by 2 years – rather than give in to pressure from businesses that have failed to take even initial steps to comply with mercury mixing zone standards, according to Madeline Fleisher, staff attorney at the Environmental Law & Policy Center in Columbus, Ohio. ORSANCO’s technical committee, which is reviewing comments submitted by environmental groups and others during the public comment period last spring, is meeting today in Cincinnati to discuss recommendations it will submit to the commission.

“The Environmental Law & Policy Center and our partners are pressing ORSANCO to do the right thing by ensuring there’s a level playing field requiring concrete steps to reduce the amount of damaging mercury that polluters are dumping into the Ohio River,” said Ms. Fleisher.

The Ohio River is the public water supply for more than 5 million people, and it ranks at the top of the U.S. Environmental Protection Agency’s list of dirtiest rivers, in part because of high mercury levels. The petitions delivered to ORSANCO today were gathered by ELPC, the Kentucky Water Alliance, the West Virginia Rivers Coalition, the National Wildlife Federation and other environmental group allies. Last May, more than 17,000 petitions from environmental groups were delivered to ORSANCO during its public comment period.

“We want the state and federal appointed officials tasked with improving water quality in the Ohio River to uphold the ban on chemical hot spots, or mixing zones,” said Judy Peterson, executive director of the Kentucky Water Alliance. “We want government officials to put public health before corporate profits.”

“Citizens up and down the Ohio River are saying ‘clean water can’t wait,’” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “They won’t accept delay or backsliding when it comes to reducing dangerous toxins in their water supply.”

The commission is slated to make its decision by fall and announce its new pollution control standards at its scheduled October 8 meeting. The 27-member commission is charged to conduct a review of its pollution abatement and control standards every three years.










Howard Learner Statement on Supreme Court Mercury Ruling

June 29, 2015
Contact: David Jakubiak 

Supreme Court’s Mercury Decision Limits Progress for Cleaner Air, Healthier Environment
Costs of Mercury Pollution Too High to Ignore

Executive Director, Environmental Law & Policy Center

“The Supreme Court’s decision today delays important mercury and other air toxics standards that limit pollution in order to protect children’s health and the Great Lakes. State public health officials in the Great Lakes states have issued ‘mercury advisories’ warning people that, sadly, it’s not safe to eat many fish they catch in most of our lakes and rivers. The U.S. EPA should now act promptly, following the Court’s decision, to fully assess the public health and environmental costs of mercury pollution, finalize lawful standards and move our country forward.”

“Unfortunately the coal industry is being rewarded for endless litigation stalling the U.S. EPA’s reasonable standards to reduce mercury pollution in our environment and protect public health. It’s well past time for EPA and the courts to move forward in responsible ways to greatly reduce mercury and other toxic pollutants that harm our children’s health and our waterways.”


Greenwire: Lawyers Mine Health Care Ruling for Clean Power Plan Clues

This story featuring Howard Learner is re-posted from

By Jeremy P. Jacobs, E&E reporter

Environmental attorneys are grappling with whether today’s Supreme Court ruling upholding the Obama administration’s health care reform could set a precedent in expected legal challenges to U.S. EPA’s Clean Power Plan.

In a 6-3 vote, the justices upheld the Affordable Care Act’s tax subsidies for people who get insurance on both federal and state-created exchanges.

Challengers claimed that a strict reading of the law mandated that the IRS provide the subsidies only for individuals who purchased insurance on an “exchange established by the state” and, therefore, not on the exchanges in roughly three dozen states that were set up by the federal government.

Chief Justice John Roberts, in his opinion for the court, wrote that the context of the law indicated that Congress intended both types of exchanges to qualify for the subsidies. Otherwise, he wrote, the underpinnings of the health care law would crumble.

“Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts,” Roberts wrote, “and to avoid the type of calamitous result that Congress plainly meant to avoid.”

Environmental lawyers, however, have homed in on the chief justice’s brief discussion of the 1984 precedent Chevron v. Natural Resources Defense Council. In that ruling, the court set up a two-step structure for adjudicating agency actions. Step 1 is whether the law directing the agency’s work is ambiguous. If it is, under Step 2 the court must defer to the agency’s interpretation if it was reasonable.
At first glance, the health care reform case, King v. Burwell, looked as if it could be decided on Chevron grounds. But Roberts quickly sidestepped the precedent.

Chevron didn’t apply because the health care case is “extraordinary” and centers on a question of “deep ‘economic and political significance,'” Roberts wrote, quoting precedent. The Chevron two-step process, he said, need not be initiated if it appears the ambiguity at issue was not one that Congress intended for the acting agency to resolve.

“Had Congress wished to assign that question to an agency, it surely would have done so explicitly,” Roberts wrote.

Lisa Heinzerling, a Georgetown Law professor and former climate official at EPA, said she was “struck” by the passage.

It’s an “affirmation of the idea that because an issue is really important, an agency doesn’t get deference,” she said.

She noted that the “economic and political significance” argument has been raised in the early challenges to EPA’s proposed greenhouse gas standard for existing power plants, the key component of the administration’s effort to address climate change that is due to be finalized later this year.

In fact, Harvard Law professor Laurence Tribe, a former mentor to President Obama, made that argument earlier this year, Heinzerling said.

A potentially analogous issue involves the conflicting Clean Air Act amendments under which EPA is issuing the greenhouse gas rules. Due to a legislative glitch, two versions of Section 111(d) were signed into law — one from the House and one from the Senate. Critics of the proposal read the House version to prohibit EPA from issuing regulations for sources of pollution already regulated under the law.

Because EPA has already issued power plant standards for other pollutants, that theory would foreclose the new rule.

EPA and environmentalists counter that the Senate version only prohibits redundant regulation of specific pollutants, which would allow the greenhouse gas standards to stand.

The two amendments are not easily reconciled, and Thomas Lorenzen, a former Justice Department environmental attorney, said today’s ruling reinforces the idea that the fate of the Clean Power Plan will ultimately be resolved by judges.

And Roberts’ opinion, he said, may have provided a way for them to sidestep the traditional two-step Chevron analysis.

With the two amendments, “you have a congressional goof,” said Lorenzen, who now represents industry clients at the law firm Crowell & Moring. There is “no clear intent to delegate authority to the agency.”
Jeff Holmstead, a former EPA air chief now representing industry at Bracewell & Giuliani, echoed that point.

“The decision in King v. Burwell makes it pretty clear that the court will not just defer to EPA but will make its own decision about the legal implications of the competing House and Senate versions of 111(d),” Holmstead said. “The court clarified its holding in Chevron by saying that the courts should only defer to an agency on the types of issues that Congress intended to leave to that agency’s discretion. It will be hard for EPA to argue that Congress intended to give EPA discretion over the scope of its own power.”

‘You need to look at the context’
Heinzerling, as well as environmentalists, however, cautioned against reading too much into today’s decision. They noted that several factors differentiate the case from the inevitable challenges to the Clean Power Plan.

Roberts said Chevron didn’t apply because the ambiguity in the state versus federal exchange issue was left to the IRS.

“It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort,” Roberts wrote.

That would not be the case in a challenge to the Clean Power Plan, said Howard Learner, the president of the Chicago-based Environmental Law & Policy Center.

“There is a congruence between the statute, the Clean Air Act and the agency, EPA, being called upon to execute it,” he said. “I would be very, very surprised if the court went to some sort of Chevron step 0 analysis with regard to EPA’s interpretation of the Clean Air Act.”

Heinzerling added that there was an alternate way to read the health care decision that would bolster EPA’s case.

After rejecting a Chevron analysis, Roberts chose to look at the broader context of the law in order to uphold the administration’s reading of it.

In the context of the Clean Power Plan, EPA and environmentalists contend that the 1990 amendments to the law were clearly intended to strengthen EPA’s authority under Section 111(d), not weaken it — and critics’ reading would.

Roberts, Heinzerling said, seemed to say “you need to look at the context in which that language appears.”

“That’s very helpful in most environmental cases,” Heinzerling said.

More broadly, some law professors still found reasons to be concerned about Roberts’ reasoning, even though the case turned out to be a major win for the administration.

Justin Pidot, a former DOJ environmental attorney now a professor at the Sturm College of Law at the University of Denver, said the ruling reinforces the court’s willingness to wade into high-profile agency actions.

There is, he said, “this newly minted rule that the court is going to intercede when costs get high. I think it’s alarming,” he said. “That’s a pretty dangerous principle for EPA.”

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