EPA Has An Unconstitutional Solution for Their Unconstitutional Mercury Rule


The Environmental Protection Agency’s (EPA) air pollution rule placed stringent, impossible-to-meet limits on mercury and other pollutants from coal-fired power plants but it was ruled unconstitutional by the Supreme Court, not because they were illicitly writing legislation from a government agency, but because they needed to do another cost-benefit analysis.

The justices split 5-4, with the four liberals on the side of the EPA and the four conservatives and Justice Anthony Kennedy on the side of industry and the states that had sued.

The ruling—Michigan v. Environmental Protection Agency and two other consolidated cases doesn’t bar the EPA from regulating the toxins, it means the agency has to start over, this time considering costs as one of the factors BEFORE making a decision about whether to limit emissions.

Harvard Professor Laurence Tribe
Harvard Professor Laurence Tribe

Liberal Harvard Professor Dr. Laurence Tribe supported the coal plants in their case after he completed an independent study because he does not believe the EPA should go about achieving their goals unconstitutionally.

He explained in an article for the Wall Street Journal in December 2014.

The Clean Power Plan would set a carbon dioxide emission target for every state, and the EPA would command each state, within roughly a year, to come up with a package of laws to meet that target. If the agency approves the package, the state would then have to impose those laws on electric utilities and the public.

The agency would effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan. But Supreme Court precedent settled over two decades ago in New York v. United States (1992) and reaffirmed by a 7-2 vote as recently as 2012 in NFIB v. Sebelius, the ObamaCare decision, holds that such federal commandeering of state governments defeats political accountability and violates principles of federalism that are basic to our constitutional order.

Even more fundamentally, the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place.

Dr. Tribe said that the Obama administration couldn’t get the climate legislation through Congress and is using the EPA to assume legislative authority to control the nation’s electric generating system and power grid.

The EPA rewrote an obscure section of the 1970 Clean Air Act to give itself the authority but Congress is already regulating power plants.

The EPA has now announced they are fixing their rejected proposal ADMINISTRATIVELY to get it passed the Constitution limits they frequently transcend.

The rule was found invalid because the agency did not consider costs before it decided to pursue the regulation. It did a cost benefit analysis but not one that shows it is necessary and appropriate.

As an aside, the government puts mercury in all their crazy ass light bulbs but apparently mercury is fine in those. You know the bulbs I mean, the ones you wear hazmats suits to clean up if one is broken. There is a strict procedure for cleaning those things up.

However, if there is a speck of mercury in a coal plant, it’s curtains.

The frauds in the EPA are seeking to administratively fix the problem by declaring that the regulation’s benefits are higher than its costs and they would have come to the same conclusion even if they had considered costs beforehand.

“With today’s proposal, we are addressing the Supreme Court’s decision: we have evaluated several relevant cost metrics, and we are proposing to find that taking consideration of cost into account does not alter our determination that is appropriate to set standards for toxic air emissions from power plants,” Janet McCabe, head of the EPA’s air pollution office, said in a blog post.

The EPA has only to prove that the regulation is “necessary and appropriate” and provide another cost-benefit analysis. The Supreme Court has taken a hard turn left under Obama’s rule and show little concern for states’ rights and for who is writing the legislation.

The EPA’s regulatory agenda anticipates making the proposed change final by May. This will be entrenched by the time the case gets back through the court.

The EPA will have to create bogus data because the rules are designed to drive up costs to an extraordinarily high level.


As Dr. Tribe said, Gina McCarthy is calling the rule “an investment opportunity” that isn’t really “about pollution control” at all.

Others say the EPA’s power grab could avert global disaster.

The EPA is a global disaster. Destroying our energy sector for an alternative energy that is not ready to take over at a reasonable cost is a disaster for America. Our enemies will love it. Expect more of this in Paris in December.

Angry old Red Diaper Baby Bernie Sanders said yesterday, “To hell with the fossil fuel industry” and he echoes the Obama administration precisely.

To Hell with energy power for all Americans!



  1. How about mentioning the EPA has polluted 3 major rivers with toxic substances in Colorado. How about mentioning that the EPA is now armed like a military assault team and has been using this illegal police force to shut down smelting mines and factories that produce Ammo. How about mentioning that the whole climate hysteria is just that and that Obama is just using this agenda to totally destroy our economy and take away more jobs and lead to even greater debt. Wake up America. We need every job and every business we presently have and millions more. One out of 4 are unemployed.

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