Apr 30, 2014

Posted in Uncategorized

Justice Scalia’s Blunder Deleted Down The Memory Hole

This is remarkable. In his dissent in EPA v. EME Homer, which he read from the bench, Justice Scalia made a big blunder.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday touphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice’s error was noted by University of California-Berkeley law professor Dan Farber, who called it “embarrassing” and a “cringeworthy blunder.”

I commented on this section of the opinion yesterday, noting the odd usage of French in the captioned header. Quite ironically, the section was labelled “Plus Ça Change” is loosely translated as the more things change, the more its the same thing.

Here is the original passage:

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.

Within 24 hours, the original PDF was deleted from the Supreme Court’s website, and sent down the memory hole. The revised version eliminates any reference to the EPA. Now, it just says “parties.” Also deleted was “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” Now, it simply reads “Our Precedent.” Things certainly have changed. It now reads:

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regula- tion. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.

Here is the original version:

scalia-old

And here is the modified version, with the file name 12-1182_553a (which may mean it was posted at 5:53 in the morning):

Scalia-new

This is quite embarrassing.

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