A U.S. Supreme Court case examining whether the Obama administration should have considered costs before issuing mercury pollution rules for power plants may come down to the meaning of the word "appropriate," said Tom Donnelly, counsel for the Constitutional Accountability Center.
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As 7th Circuit Judge Richard Posner wrote last year in an opinion striking down same-sex marriage bans in Wisconsin and Indiana, the argument that tradition supports the bans “runs head on into Loving.” That conclusion should resonate with Chief Justice Roberts. And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.
"Much of the industry is already complying with this rule, the sky hasn’t fallen, and a decision invalidating it now would be highly disruptive,” said Tom Donnelly of the Constitutional Accountability Center, which filed a brief supporting the regulations.
“It won on cross-state air pollution and the bigger question in greenhouse gas regulations,” Donnelly said. “In both cases it was a cross-ideological coalition of the justices deferring to the EPA’s reasonable interpretation of the statute.”
The public health community, various members of the energy sector, several states, and the Supreme Court’s own precedents are all on the side of the EPA’s new standards. When the court decides this case in a few months, here’s hoping that a majority of the justices are, too.