The Supreme Court’s decision on Tuesday upholding new clean air regulations has been hailed as a victory for environmentalists. And that it is; the 6-2 ruling allows important new restrictions to take effect, which will likely lead to the phasing out of some old coal plants and pave the way for further regulation. Importantly, though, the ruling by Justice Ruth Bader Ginsburg was also a refreshing blow for common sense — in the face of nit-picking, polluter-friendly legal theories that would render much-needed environmental rules all but unenforceable.
The case stems from the federal Clean Air Act’s “good neighbor” provision, which allows the EPA to regulate pollution that is emitted in one state but wafts into another. That provision is especially important for the Northeast, where wind patterns blow much of the nation’s air pollution. In one especially dramatic example, 93 percent of the ozone pollution in New Haven came from outside Connecticut. According to the EPA, no fewer than 28 states contributed to the city’s pollution.
The crux of Tuesday’s case was how the EPA can go about implementing that policy on “upwind” states — those whose pollution travels elsewhere. It’s clear — or at least, it should be clear — that it would be impossible to precisely link every upwind state’s pollution to particular downwind states, since air mixes together. So the EPA instead set an overall limit on emissions in upwind states and ordered them to reach it in the most economical way possible. A group of atmospheric scientists submitted a friend-of-the-court brief saying that a literal breakdown would be difficult, if not impossible, and that the EPA’s approach was a scientifically sound way to implement the good neighbor rule.
Most justices agreed. Yet Justice Antonin Scalia, in his dissent, ignored the experts to demand a deeply impractical reading of the law. He even wrote: “I fully acknowledge that the proportional-reduction approach will demand some complicated computations where one upwind state is linked to multiple downwind states and vice versa,” he wrote. Still, he insisted, the “EPA’s skilled number-crunchers” could manage it. The implication of Scalia’s argument is that the government should be required to follow the most literal possible understanding of the law, even when that reading leads to an almost nonsensical outcome. Only one other justice, Clarence Thomas, bought that argument this time.
One can hardly blame the coal and power companies who sued over the regulations from trying. In its recent rulings in areas as varied as campaign finance and voting rights, this court seems to have gone to great lengths to put blinkers on, evaluating individual cases as abstract intellectual exercises and ignoring how politics actually operates. Ignoring the way wind works appeared to be a step too far, even for the Supreme Court.