Page:Michigan v. EPA.pdf/46

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MICHIGAN v. EPA KAGAN, J., dissenting

bly in setting emissions standards for power plants. The Agency treated those plants just as it had more than 100 other industrial sources of hazardous air pollutants, at Congress’s direction and with significant success. It made a threshold finding that regulation was “appropriate and necessary” based on the harm caused by power plants’ emissions and the availability of technology to reduce them. In making that finding, EPA knew that when it decided what a regulation would look like—what emissions standards the rule would actually set—the Agency would consider costs. Indeed, EPA expressly promised to do so. And it fulfilled that promise. The Agency took account of costs in setting floor standards as well as in thinking about beyond-the-floor standards. It used its full kit of tools to minimize the expense of complying with its proposed emissions limits. It capped the regulatory process with a formal analysis demonstrating that the benefits of its rule would exceed the costs many times over. In sum, EPA considered costs all over the regulatory process, except in making its threshold finding—when it could not have measured them accurately anyway. That approach is wholly consonant with the statutory scheme. Its adoption was “up to the Agency to decide.” Ante, at 14. The majority arrives at a different conclusion only by disregarding most of EPA’s regulatory process. It insists that EPA must consider costs—when EPA did just that, over and over and over again. It concedes the importance of “context” in determining what the “appropriate and necessary” standard means, see ante, at 7, 10—and then ignores every aspect of the rulemaking context in which that standard plays a part. The result is a decision that deprives the Agency of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike. And the result is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within