Tag Archives: Environmental Protection Agency v. EME Homer City

Scalia Error – Mistake Or Flip-Flop?

This week Supreme Court Justice Antonin Scalia (and Justice Thomas who joined Scalia’s dissent) made a pretty glaring mistake in Environmental Protection Agency v. EME Homer City Generation, L.P.

This fact-checking mistake never should have happened. But it provides us with an opportunity to look into the workings of a biased justice.

The mistake was regarding his position and the EPA’s position in a past case, the opinion for which he authored. That’s pretty bad. And this has been picked up by everyone in the legal blogosphere. Justice Scalia’s clerks have been sacrificially thrown under the bus, as has the process by which opinions are rendered by members of the Court.

But is this really an accurate description of what happened? Or is what happened simply a blatant example of an outcome-driven Justice flip-flopping per usual in order to support industry?

Let’s see.

EPA v. EME Homer City, involves the EPA (under a Democrat administration) asserting that under the Clean Air Act it’s not precluded from considering the costs of regulating the pollution it’s trying to regulate. Industry in this case asserted that the EPA was precluded from considering costs of the regulation.

Scalia sided with industry and argued that, “This is not the first time the EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation,” citing Whitman v. American Trucking Assns., Inc.

The problem and error was that’s not what he said in Whitman.

In Whitman he sided with the EPA (under a Republican administration) asserting that it was precluded from considering costs in setting regulations, and it was industry — the trucking association — that wanted costs to be considered.

Industry may have lost the battle in Whitman that day in 2001 but with Scalia’s help it won the war because the decision precluded the EPA from arguing in the future based on the costs of a particular regulation, which compared to the benefits are often low.

In essence, in 2001 it seemed like industry was losing but it wasn’t. And Justice Scalia’s position was actually helping not harming industry in general.

That brings us back to EME Homer City. 

The EPA wanted to consider costs. Industry didn’t. Why? Because the costs were low, like they usually are. The regulation at issue was as Justice Scalia wrote, “cost-effective.” So what does Justice Scalia, and Justice Thomas, do? They side with industry.

And this would be simple enough. However, in taking the side of industry they use for support a decision that Justice Scalia wrote in that may have ultimately aided industry but did not say what he thought (or perhaps remembered).

So, maybe this mistake is a simple factual error, which God knows we all make. Or maybe this was a blatant flip-flop by an outcome-driven Justice willing to find support for industry even when it does not exist.