A group of 20 states is trying once again to get the Supreme Court to put an end to a controversial air pollution rule that the court has already found to be unlawful.
The states, led by Michigan, are asking the Supreme Court to take up the case against the Environmental Protection Agency’s (EPA) mercury and air toxics standards, which have already caused numerous coal-fired power plants to shut down because they could not comply.
It’s the latest attempt by the states to stop the mercury rule following the Supreme Court’s decision last year. The Court of Appeals for the District of Columbia Circuit refused to stop it in December, and Chief Justice John Roberts declined to do so earlier this month.
Michigan and its allies say that the EPA is effectively enforcing a rule now without authorization from Congress.
“What happens when a federal agency promulgates a rule without first receiving authority from Congress,” the states ask in their brief with the court.
“The answer should be clear: agency action, taken without any authority, cannot be left in place to have the effect of binding law. Instead, the agency itself, to say nothing of the reviewing courts, should recognize that the rule must be vacated.”
The states are unlikely to find a sympathetic voice in the Supreme Court. Though its ruling last year was on a 5-4 vote, Justice Antonin Scalia’s death in February leaves the conservative wing of the court one vote short of a majority.