Bench Memos

Contrary to SG’s Claim, Ample Legislative History Contradicts EPA’s Position in Michigan v. EPA

At the Supreme Court’s March 25 oral argument regarding the EPA’s refusal to consider the costs before subjecting power plants to costly regulations under the Clean Air Act’s Section 112 program, Solicitor General Verrilli answered a key question with a statement that was wrong.

During the argument, Justice Alito noted that Congress provided in Section 112(n)(1)(A) that the EPA had to decide whether power plants should be regulated under the Section 112 national program and asked whether costs was a “factor” that Congress thought might justify treating power plants differently from other sources of emissions. Solicitor General Verrilli categorically stated that discussion of costs as a factor to be considered under this provision “is not in the legislative history” of the bill.

That response was surprising because the briefs in the case referenced just such a discussion. (See UARG Brief at 9, quoting 136 Cong. Rec. 3,493, March 6, 1990). In addition to this statement cited in the briefs, there were extensive hearings at which the EPA itself testified that subjecting power plants to Section 112 “would add billions of dollars to a utility rate with . . . very marginal environmental benefits.” The EPA was not alone, as a Department of Energy official explained that the purpose of the Administration-designed Section 112(n)(1)(A) provision was to allow for “costs” to be “considered” because “billions of dollars” were “at stake” in the decision whether to subject power plants to Section 112 (See Energy Policy Implications of the Clean Air Act Amendments of 1989: Hearing Before the S. Comm. on Energy and Natural Resources, 101st Cong. 7, 234-35, 240-41, 436-37, 483, 485, 492, 570-72, 596, 603 (1990)).

Hopefully General’s Verrilli’s mistake on this legislative history point won’t lead any member of the Court astray.

Robert D. Cheren represents Murray Energy Corporation, which filed amicus curiae briefs in support of petitioners in Michigan v. EPA.

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