In the News

The Mercury and Air Toxics Standards, also known as “MATS,” are the culmination of a very long regulatory process.

In the final ruling of an historic Supreme Court term, the Obama administration was handed a loss on Monday, but the fallout will likely be minimal. In a 5-4 decision written by Justice Antonin Scalia, the court found that the Environmental Protection Agency (EPA) should have considered costs when it first began the regulatory process for its Mercury and Air Toxics Standards.

“The court didn’t do anything to this rule. The case now gets remanded to the D.C. Circuit,” Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of NYU Law School, said shortly after the ruling was released. “I don’t think this is any blow at all. I think it is pretty clear that this rule will ultimately be upheld.”

One of the U.S. government’s largest sources of non-tax revenue comes from the land it leases to oil, gas and coal companies. Last fiscal year, the federal government generated more than $13 billion from drilling and mining activities on its land – but it should have made hundreds of millions of dollars more. Antiquated pricing rules have given these energy companies access to federal lands at prices that ignore decades of inflation, as well as many environmental and health costs of fossil fuel production.

Richard Revesz, director of the Institute for Policy Integrity, said the early lawsuit and comments received during the EPA’s public comment period will ensure the final rule is legally sound.

Chicago, Philadelphia and Sacramento, Calif.: These are just a few of the cities within the “blast zones” of mile-long trains carrying flammable crude oil across the country. Twenty-five million Americans live in these vulnerable areas; yet it will be years until dangerous tank cars are retrofitted or retired from the rails, based on the U.S. Department of Transportation’s new safety standards.

That is probably healthy given the divisions on the current court, Professor Livermore said. “Burying those sentiments in formalistic writing doesn’t erase the tension,” he said. “It just obscures it. There is something valuable about the crystallizing statement.”

“I don’t think it’s even debatable or a close question that he is not circumventing Congress or abusing executive authority,” says Richard Revesz, a professor and dean emeritus at the New York University School of Law. He testified last month on Capitol Hill about Obama’s Clean Power Plan, which would limit carbon emissions from existing power plants. “Not only is the president not acting inconsistently with the will of Congress, he’s doing something he was mandated to do under existing law.”

The fate of 11,000 American lives each year may hinge on whether the Supreme Court Justices understand that fractions can’t be calculated without knowing the denominator.

But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation.