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MICHIGAN v. EPA KAGAN, J., dissenting

and cerebral palsy. Id., §7.2.2, at 7–17 to 7–18; see also 7 EPA, Mercury Study Report to Congress, p. 6–31 (1997) (Mercury Study) (estimating that 7% of women of childbearing age are exposed to mercury in amounts exceeding a safe level). Informed by its public health study and additional data, EPA found in 2000 that it is “appropriate and necessary” to regulate power plants’ emissions of mercury and other hazardous air pollutants. 65 Fed. Reg. 79830.2 Pulling apart those two adjectives, the Agency first stated that such regulation is “appropriate” because those pollutants “present[ ] significant hazards to public health and the environment” and because “a number of control options” can “effectively reduce” their emission. Ibid. EPA then determined that regulation is “necessary” because other parts of the 1990 amendments—most notably, the acid rain provisions—“will not adequately address” those hazards. Ibid. In less bureaucratic terms, EPA decided that it made sense to kick off the regulatory process given that power plants’ emissions pose a serious health problem, that solutions to the problem are available, and that the problem will remain unless action is taken. B If the regulatory process ended as well as started there, I would agree with the majority’s conclusion that EPA failed to adequately consider costs. Cost is almost always a relevant—and usually, a highly important—factor in regulation. Unless Congress provides otherwise, an agency acts unreasonably in establishing “a standard-setting process that ignore[s] economic considerations.” Industrial —————— 2 EPA reaffirmed its “appropriate and necessary” finding in 2011 and 2012 when it issued a proposed rule and a final rule. See 76 Fed. Reg. 24980 (2011) (“The Agency’s appropriate and necessary finding was correct in 2000, and it remains correct today”); accord, 77 Fed. Reg. 9310–9311 (2012).