No Clear Signal From U.S. Supreme Court About Upcoming Decision on Mercury Rules

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By Patrick Ambrosio

June 22 — The U.S. Supreme Court is expected to soon issue its decision on the legality of the Environmental Protection Agency's mercury and air toxics standards for power plants, but court observers said they are still unsure of how the court will rule.

Several attorneys told Bloomberg BNA June 22 that the timing of the expected decision and the opinions already issued from the court's March sitting offer no real conclusion about where the court will land. But one industry attorney said he has seen indications that Justice Antonin Scalia will author the court's majority opinion on the EPA regulation.

The MATS case, Michigan v. EPA, was one of just seven opinions that the court had yet to issue for the 2014–2015 term,. As of June 22, it was the only case argued during the court's March sitting that had yet to be decided. Scalia is the only justice that has not authored a majority opinion from the March sitting, but court observers were split about whether that means he will be the author of the decision in Michigan v. EPA. The court typically, but not always, divides opinions evenly over sittings, which last a month.

During March 25 oral arguments, Scalia was critical of the EPA's decision to ignore cost when it decided it was “appropriate and necessary” to regulate power plant emissions of mercury and other hazardous air pollutants, a determination that ultimately led to promulgation of the 2012 mercury and air toxics standards. States and industry groups that oppose the rule argued that the EPA made an arbitrary decision to not consider costs, which led to a regulation with estimated annual compliance costs of $9.6 billion, while the EPA argued that the Clean Air Act did not explicitly require the agency to factor cost into its decision (Michigan v. EPA, U.S., No. 14-46, argued, 3/25/15).

The decision on the EPA's mercury rule could come as soon as June 25, the next scheduled date for the court to hand down opinions. While a ruling against the EPA would not have many practical implications for power plants that have installed pollution controls or closed as a result of the MATS standards, the Supreme Court's ruling is expected to have far-reaching effects on the EPA's regulation of power plants and the deference the agency receives from the courts on interpretation of the Clean Air Act.

No Certainty on Opinion Author 

James Rubin, counsel in the global Energy, Transport & Infrastructure sector at Dentons US LLP, told Bloomberg BNA June 22 that while court observers spend a lot of time speculating about cases, he could not begin to speculate about how the MATS litigation might play out.

“I don't think you can really draw anything from that,” Rubin said of the fact that Scalia is the only justice to not author a majority opinion from the March sitting. “We'll find out when they rule.”

Eric Groten, a partner at Vinson & Elkins LLP, disagreed, telling Bloomberg BNA June 22 that each justice's workload offers a “pretty sound clue” of who will author the EPA opinion because the court typically distributes cases evenly from each sitting.

“It's a signal, not a certainty, but it's certainly a strong signal as to who is writing the opinion,” Groten said.

Groten represents White Stallion Energy Center, one of the petitioners in the underlying D.C. Circuit case that upheld the MATS rule, but is not involved in the Supreme Court litigation (White Stallion Energy Center LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014)).

Scheduling Not ‘Foolproof' Sign 

It is the court's general practice to distribute majority opinions evenly, but it is not a “foolproof” method to predict who will author the majority opinion in pending cases, according to Stephen Wermiel, a professor of practice in constitutional law and associate director of the Summer Institute on Law & Government at American University Washington College of Law.

Wermiel told Bloomberg BNA June 22 that while the fact that Scalia has yet to author an opinion from the March sitting “could well” mean that he is the author of the Michigan v. EPA opinion, there could be another explanation. It is possible that Scalia was assigned the majority opinion in a case from the March sitting, only to later lose the majority in that opinion, he said.

Jeff Holmstead, a partner at Bracewell & Giuliani LLP and former EPA assistant administrator for air and radiation under President George W. Bush, said there is a “decent chance” that Scalia could author the opinion, a development that he said would bode well for the challengers based on oral arguments. But Holmstead said it will ultimately depend on how the votes line up for the majority.

“It's often the case that they spread it around so each justice writes an opinion once a month, but there are many exceptions to that,” he said.

A review of statistics that SCOTUSBlog maintains found seven instances since the 2009–2010 term where at least one justice wrote two opinions from a sitting where another justice wrote none.

Timing Offers No Signal 

Observers also said little can be inferred from the fact that Michigan v. EPA is one of the last cases the court will decide in the 2014–2015 term.

Wermiel said it is not taking the court an “extra long” amount of time to decide the case, which was argued March 25.

Rubin of Dentons agreed that the timing of the opinion offers no signal of how the court will rule, though he noted that it is likely to be a close decision based on oral arguments.

“There are plenty of hard cases out there,” Rubin said of the court's pending cases, which include litigation on the legality of the Affordable Care Act and state recognition of same-sex marriages.

To contact the reporter on this story: Patrick Ambrosio in Washington at pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com