Page:Michigan v. EPA.pdf/37

 Cite as: 576 U. S. ____ (2015)

15

KAGAN, J., dissenting

side, EPA acknowledged that plants’ compliance with the rule would likely cause electricity prices to rise by about 3%, but projected that those prices would remain lower than they had been as recently as 2010. See 77 Fed. Reg. 9413–9414. EPA also thought the rule’s impact on jobs would be about a wash, with jobs lost at some highemitting plants but gained both at cleaner plants and in the pollution control industry. See ibid. On the benefits side, EPA noted that it could not quantify many of the health gains that would result from reduced mercury exposure. See id., at 9306. But even putting those aside, the rule’s annual benefits would include between 4,200 and 11,000 fewer premature deaths from respiratory and cardiovascular causes, 3,100 fewer emergency room visits for asthmatic children, 4,700 fewer non-fatal heart attacks, and 540,000 fewer days of lost work. See id., at 9429. Those concrete findings matter to these cases—which, after all, turn on whether EPA reasonably took costs into account in regulating plants’ emissions of hazardous air pollutants. The majority insists that it may ignore EPA’s cost-benefit analysis because “EPA did not rely on” it when issuing the initial “appropriate and necessary” finding. Ante, at 15 (quoting Solicitor General); see also SEC v. Chenery Corp., 318 U. S. 80, 87, 93–94 (1943). At one level, that description is true—indeed, a simple function of chronology: The kick-off finding preceded the costbenefit analysis by years and so could not have taken its conclusions into account. But more fundamentally, the majority’s account is off, because EPA knew when it made that finding that it would consider costs at every subsequent stage, culminating in a formal cost-benefit study. And EPA knew that, absent unusual circumstances, the rule would need to pass that cost-benefit review in order to issue. See Exec. Order No. 12866, 58 Fed. Reg. 51736 (“Each agency shall . . . adopt a regulation only upon a