"Appropriate and Necessary" Is Whatever We Say It Is

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Mises: "Appropriate and Necessary" Is Whatever We Say It Is

APRIL 4, 2015Gary Galles

The Supreme Court has recently heard oral arguments in Michigan vs. EPA challenging regulations slashing mercury emissions from fossil-fuel power plants. However, the central issue was not, as commonly represented, preventing harm from mercury. The central issue is the use of mercury as a bait-and-switch excuse for more stringent restrictions on fine particulate emissions. The EPA utilized what Justice Scalia called “a silly way to read” the law to do what Chief Justice Roberts described as an “end run” around its statutory limits, and the case well illustrates how government agencies are able to use open-ended legislation to get whatever they want.

 

The 1990 Clean Air Act amendments instructed the EPA to study whether mercury exposure posed a health hazard that would make restricting it “appropriate and necessary.” Justification therefore first required demonstrating harm from mercury