The latest session of the United States Supreme Court is finished.  It was both busy and momentous (not always in a positive way).  A few decisions were good.  many were not.

But the Supreme Court did get one important case right this term.  That was the last case it handed down, the case of Michigan v. Environmental Protection Agency.  Interestingly, to me at least, is that I was walking past the Supreme Court building (wishing I could get in) when it was decided.  Alas, I might have had some good news, but…  At any rate, this case involved an EPA rule that would limit and regulate emissions from power plants, under a provision of the Clean Air Act.  The EPA refused to consider the costs of its rules, though it did estimate benefits.  The Court held that the agency action had not rested “ ‘on a consideration  of the relevant factors.’”  (Syllabus, 2).  The majority said “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.”  (Ibid.)  This was even considering the standard of deference to be given to an agency under the case of Chevron, U. S. A, Inc. v. Natural Resources Defense Council, Inc.  So the Court must have believed the EPA went pretty far beyond its statutory authority in not considering costs as well as benefits.

This case had to do with arcane issues of administrative law, but its implications are more far-reaching.  That is because the case even touched on the issue of how much a legislative body (Congress) can actually delegate in the way of legislative authority to another branch, in this case the Executive branch.  This has been a much-neglected area for the Court since the 1930s, with the implementation of New Deal policies.  This Court has been very deferential to delegation of what certainly looks like Legislative branch power.  If it is it should be an unconstitutional violation, but case law has generally allowed a great deal of it and Congress itself has given away a great deal to administrative agencies.

This trend might be changing.  Antonin Scalia, writing for the majority stated “(d) EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.” (Ibid.)  But though it looks like only a matter of statutory interpretation, we have to look a bit farther.

I mentioned the Chevron case above.  It was that case that the EPA relied on to defend itself.  It essentially argued that the Congress had given it (EPA) broad authority to interpret the meaning of statutory language.  Justice Clarence Thpmas, in a concurrence with the majority, questioned the very practice of deferring to agencies and giving them wide discretion.  He challenged the Chevron case directly, implying that Congress may not simply give away all of its legislative authority.  Nor may agencies take it.  Thomas wrote:

“But we sometimes treat that discretion as though it were a form of legislative power. See, e.g., United States v. Mead Corp., 533 U. S. 218, 229 (2001) (noting that the agency “speak[s] with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law” even when “‘Congress did not actually have an intent’ as to a particular result”). Either way, Chevron deference raises serious separation-of-powers questions.” (Ibid., Opinion, 2)

He continues:

“As I have explained elsewhere, “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___ (2015) (opinion concurring in judgment) (slip op., at 8). Interpreting federal statutes—including ambiguous ones administered by an agency—“calls for that exercise of independent judgment.” Id., at ___ (slip op., at 12). Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is “the best reading of an ambiguous statute” in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive. See Brand X, supra, at 983 (noting that the judicial construction of an ambiguous statute is “not authoritative”). Such a transfer is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U. S. Const., Art. III.”(Ibid., 3-4)

As one can see, Thomas is very concerned, as I am, that the Court has allowed the separation of powers doctrine to lapse.  On a more general level, the Constitutional principles of 1787 have been to a large extent ignored in favor of Progressive and Liberal theories of a “living constitution” whose meaning (note that I said “meaning,” not application, which obviously must change with each case) changes as society changes.  There were good reasons why our Framers institutionalized such a doctrine.  The main purpose was to check unbridled power, precisely the kind of power EPA seems to want to exercise.

Besides that, the cost-benefit requirement is good in itself.  It is totally inefficient–and potentially harmful–to implement a policy that has huge costs ($10 billion in this case) and only minuscule benefits in return (about $6 million dollars as admitted by EPA).  Though efficiency is not always a perfect measure of policy outcome, it does play and important role in economic regulations.  But even so, if one just wants to translate the costs and benefits into real people, one can see that this rule has the potential to bring a great deal of harm to ordinary citizens (higher energy costs, higher transportation costs, higher food costs, etc.) with only very small, possibly insignificant “benefits.”

So this decision may bode well for the future.  We wait to see how the lower court handles the case sent back to it by the Court.  But for now the decision was at least a partial victory for smaller government, or at worst, governing from the “right” branch.  And one could say it may be a victory for many different kinds of people who have been economically oppressed by Federal agencies.